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B-246786, Mar 27, 1992

B-246786 Mar 27, 1992
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Highlights

DIGEST: Bid which constitutes an unequivocal offer in accordance with terms of invitation for bids to perform and (IFB) does not take any exception to the IFB material terms was properly considered responsive. Electroswitch essentially contends that Shallco's bid should have been rejected as nonresponsive because Shallco has not qualify its products for inclusion on the qualified products list (QPL). Which Electroswitch believes is required under the IFB. Was issued on June 6. Numerous "Notes" or requirements are listed on the drawing. Is also used to qualify contractors prior to award for specific part numbers or military standard (MS) parts/components. Qualified contractors are listed on a mandatory qualified product list (QPL) once they become qualified for a particular part number.

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B-246786, Mar 27, 1992

DIGEST: Bid which constitutes an unequivocal offer in accordance with terms of invitation for bids to perform and (IFB) does not take any exception to the IFB material terms was properly considered responsive.

Attorneys

Electroswitch:

Electroswitch protests the award of a contract to Shallco, Inc. under invitation for bids (IFB) No. DAAK01-91-B-0186 issued by the Department of the Army for rotary switches, national stock number (NSN) 5930-01-046- 6949. Electroswitch essentially contends that Shallco's bid should have been rejected as nonresponsive because Shallco has not qualify its products for inclusion on the qualified products list (QPL), which Electroswitch believes is required under the IFB.

We deny the protest.

The IFB, a small business set-aside, was issued on June 6, 1991 and contemplated the award of a three-year firm, fixed price requirements contract for rotary switches. The solicitation required that the rotary switches be produced, tested and inspected in accordance with drawing No. 72-5009, included in the IFB. Numerous "Notes" or requirements are listed on the drawing, in particular, Note 1 which states that "materials and construction shall conform to military standard MIL-S-6807." MIL-S-6807 specifies testing, inspection, quality and delivery instructions for the production of rotary switches, and is also used to qualify contractors prior to award for specific part numbers or military standard (MS) parts/components. Qualified contractors are listed on a mandatory qualified product list (QPL) once they become qualified for a particular part number, and are exempt from further testing for that part for a period of 3 years. To date, three part numbers (MS21994, MS21995 and MS25002) have been qualified to MIL-S-6807, and Electroswitch is the only QPL contractor for these three parts.

Two bids were received by the July 9 bid opening, of which Shallco was apparently low. After conducting an onsite pre-award survey of Shallco, on November 12 the agency award and to Shallco as the low responsible bidder. This protest followed. /1/

Electroswitch argues that Shallco's bid is nonresponsive because Shallco's switch does not meet the requirements of MIL-S-6807, as required by drawing 72-5009. In essence, Electroswitch argues that Shallco's switch is noncompliance because Shallco's products are not listed on the QPL as required by the solicitation, and Shallco has not completed the required QPL compliance testing, which would take a minimum of six months.

A responsive bid is one that offers to perform, without exception, the exact thing called for in the solicitation and, upon acceptance, will bind the contractor to perform in accordance with all the invitation's material terms and conditions. Thompson Power, B-244894, July 31, 1991, 91-2 CPD Para.118. Here Shallco made an unequivocal offer to furnish the required number of rotary switches in accordance with drawing 72-5009, and has legally obligated itself to supply the rotary switches in exact accordance with the IFB specifications.

There is no evidence in the record to indicate fraud or bad faith on the part of procurement officials in determining that Shallco is a responsible bidder which can supply the required equipment. Further, we point out that under the terms of MIL-S-6807, pre-qualification for the rotary switches being procured here is not required. Specifically, Section 4.6 of MIL-S-6807 provides that. "inspection requirements for switches not covered by MS sheets shall be performed after award of contract and prior to production." Here, the agency is procuring part 72-5009 and this part is not a MS part/component. /2/ Because the part is not one of the three parts qualified under MIL-S-6807, any contractor may bid and qualify its part after award. Whether Shallco actually complies with its obligation to furnish a rotary switch in compliance with drawing 79-5009 is a matter of contract administration which is the primary responsibility of the contracting agency and not for consideration by our Office. 4 C.F.R. 21.3(m)(1) (1991); Thompson Power, supra.

Since Shallco's bid was responsive and since there is no basis to question the agency's determination of Shallco's responsibility, we find the protest to be without merit.

The protest is denied.

/1/ Electroswitch's second low bid was rejected as nonresponsive for failure to submit a signed Certificate of Procurement Integrity. The agency argues that Electroswitch is not an interested party to file this protest since Electroswitch cannot be awarded the contract. However, since only two bids were received, Electroswitch is an interested party to challenge the responsiveness of Shallco's bid because the appropriate remedy if its protest were sustained would be resolicitation under which Electroswitch could compete. Dantec Elecs., Inc., B-243580, July 17, 1991, 91-2 CPD Para.68.

/2/ The part number here is the same as the drawing number.

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