B-166255, AUG. 1, 1969

B-166255, AUG. 1, 1969

BID PROTEST - QUALIFIED PRODUCTS LISTING DECISION TO EON CORPORATION, SECOND LOW BIDDER, DENYING PROTEST AGAINST AWARD TO LANDSVERK ELECTROMETER COMPANY FOR FURNISHING RADIOMETERS TO NAVAL ELECTRONIC SYSTEMS COMMAND AND REJECTION OF PROTESTANT'S BID BECAUSE OF FAILURE TO INDICATE THE IDENTITY OF THE QUALIFIED PRODUCT OFFERED. PROTESTANT WHO BEFORE AWARD INDICATED THAT IT WAS NEGOTIATING TO ACQUIRE AN UNNAMED QUALIFIED SUPPLIER AND WHO DID SUPPLY THE IDENTITY AFTER OPENING MAY NOT HAVE SUCH INFORMATION CONSIDERED AS CURING THE NONRESPONSIVENESS OF THE BID. A NONRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER THAT MAY PROPERLY BE ACCEPTED.

TO EON CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 18, 1969, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER DEPARTMENT OF THE NAVY INVITATION FOR BIDS NO. N00039-69-B-2018, ISSUED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND, WASHINGTON, D.C.

THE SUBJECT INVITATION REQUESTED BIDS ON 7,738 RADIACMETERS, DESCRIBED AS "QUARTZ-FIBER, SELF-INDICATING, IM-9 ( ( (PD," AND PROVIDED FOR A 50- PERCENT SMALL BUSINESS SET-ASIDE. THE METERS CALLED FOR IN THE INVITATION ARE INCLUDED IN QUALIFIED PRODUCTS LIST (QPL) 24037-3 DATED JUNE 5, 1967, WHICH LISTS THE LANDSVERK ELECTROMETER COMPANY, THE VICTOREEN INSTRUMENT DIVISION, AND THE BENDIX CORPORATION AS QUALIFIED PRODUCERS. "SECTION F - SPECIAL PROVISIONS," OF THE INVITATION SCHEDULE PROVIDED, IN PERTINENT PART, AS FOLLOWS: "NOTICE - QUALIFIED END PRODUCTS (DEC. 1965): AWARDS FOR ANY END ITEMS WHICH ARE REQUIRED TO BE QUALIFIED PRODUCTS WILL BE MADE ONLY WHEN SUCH ITEMS HAVE BEEN TESTED AND ARE QUALIFIED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST IDENTIFIED BELOW (WHETHER OR NOT ACTUALLY INCLUDED IN THE LIST) AT THE TIME SET FOR OPENING OF OFFERS. OFFERORS SHOULD CONTACT THE OFFICE DESIGNATED BELOW TO ARRANGE TO HAVE THE PRODUCTS WHICH THEY INTEND TO OFFER TESTED FOR QUALIFICATION.'THE OFFEROR SHALL INSERT THE ITEM NAME AND THE TEST NUMBER (IF KNOW) OF EACH QUALIFIED PRODUCT IN THE BLANK SPACES BELOW.

"ITEM NAME --------------------- TEST NO. ------------------

--------------------- ------------------ "OFFERORS OFFERING PRODUCTS WHICH HAVE BEEN TESTED AND QUALIFIED, BUT WHICH ARE NOT YET LISTED, ARE REQUESTED TO SUBMIT EVIDENCE OF SUCH QUALIFICATION WITH THEIR OFFERS, SO THAT THEY MAY BE GIVEN CONSIDERATION. ANY OFFER WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED, EITHER ABOVE OR ELSEWHERE IN THE OFFER, WILL BE REJECTED.

"QUALIFIED PRODUCTS LIST - 24037-3

"OFFICE TO CONTACT: NAVAL ELECTRONIC SYSTEMS

COMMAND

DEPARTMENT OF THE NAVY

WASHINGTON, D.C. 20360"

FOUR BIDS WERE RECEIVED AND OPENED ON FEBRUARY 25, 1969. THE LOWEST BID WAS REJECTED AS BEING NONRESPONSIVE TO THE INVITATION BECAUSE THE BIDDER FAILED TO ACKNOWLEDGE RECEIPT OF AN AMENDMENT TO THE INVITATION. THE NEXT LOWEST BID WAS SUBMITTED BY YOUR FIRM. IN A LETTER DATED FEBRUARY 24, 1969, WHICH WAS ATTACHED TO YOUR BID, YOU STATED:

"THE END ITEM EON CORPORATION IS OFFERING IS CURRENTLY A QUALIFIED PRODUCT OF A COMPANY EON IS NOW NEGOTIATING TO ACQUIRE. THIS NEGOTIATION WILL BE CONCLUDED BY FEBRUARY 28TH. THE PRODUCT OFFERED WILL BE PRODUCED IN THE SAME FACILITY AS IT HAS BEEN IN THE PAST.'

BECAUSE OF YOUR FAILURE TO INDICATE THE IDENTITY OF THE QUALIFIED PRODUCT YOU OFFERED BY INSERTING THE ITEM NAME AND TEST NUMBER UNDER THE "QUALIFIED END PRODUCTS" CLAUSE, THE CONTRACTING OFFICER COULD NOT DETERMINE AT BID OPENING THAT YOU WERE OFFERING A QUALIFIED PRODUCT IN ACCORD WITH THE INVITATION, AND HE THEREFORE DETERMINED YOUR BID TO BE NONRESPONSIVE. ON JUNE 11, 1969, A CONTRACT FOR FURNISHING BOTH THE SET- ASIDE AND NON-SET-ASIDE PORTION OF THE PROCUREMENT WAS AWARDED TO THE LANDSVERK ELECTROMETER COMPANY.

THE BASIS OF YOUR PROTEST IS THAT IN MAKING AN AWARD TO A BIDDER OTHER THAN YOUR FIRM. THE CONTRACTING OFFICER DID NOT CONSIDER THE SPECIAL CIRCUMSTANCES OF YOUR BID, NAMELY, THAT YOUR FIRM IS NOW THE OWNER OF THE BENDIX FACILITY WHICH WAS LISTED ON QPL 24037-3 AT THE TIME OF THE BID OPENING AS WELL AS AT THE TIME OF THE CONTRACT AWARD.

IT IS REPORTED THAT IN DETERMINING WHETHER YOUR BID WAS RESPONSIVE TO THE INVITATION FOR BIDS, THE CONTRACTING OFFICER DID CONSIDER YOUR LETTER OF FEBRUARY 24, 1969, IN WHICH YOU STATED THAT YOUR FIRM WAS NEGOTIATING TO ACQUIRE AN UNNAMED QUALIFIED SUPPLIER OF THE 1M-9 RADIACMETER. IN YOUR LETTER YOU PREDICTED THAT NEGOTIATIONS BY YOUR FIRM WOULD BE CONCLUDED BY FEBRUARY 28, 1969.

THE QUESTION HERE IS SOLELY ONE OF QPL STATUS. YOUR FIRM WAS NOT LISTED ON THE APPLICABLE QPL AT THE TIME OF THE BID OPENING AS THE PRODUCER OF A QUALIFIED PRODUCT. WHILE YOU DID STATE IN THE LETTER OF FEBRUARY 24, 1969, WHICH WAS ATTACHED TO YOUR BID, THAT YOU WERE NEGOTIATING TO ACQUIRE A COMPANY WHOSE PRODUCT WAS PRESENTLY LISTED ON THE APPLICABLE QPL, SUCH STATEMENT, QUOTED ABOVE, DID NOT MEET THE REQUIREMENT IN THE "QUALIFIED END PRODUCTS" CLAUSE THAT THE BIDDER "IDENTIFY" IN ITS BID THE QUALIFIED PRODUCT BEING OFFERED. ALSO, SINCE THE "QUALIFIED END PRODUCTS" CLAUSE PROVIDED THAT "ANY OFFER WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED, EITHER ABOVE OR ELSEWHERE IN THE OFFER, WILL BE REJECTED," WE FIND NO BASIS TO DISAGREE WITH THE ADMINISTRATIVE DETERMINATION THAT YOUR BID WAS NONRESPONSIVE.

PARAGRAPH 1-1107.1 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT WHENEVER QUALIFIED PRODUCTS ARE TO BE PROCURED BY THE GOVERNMENT, ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH ARE QUALIFIED PRIOR TO THE OPENING OF BIDS OR AWARD OF NEGOTIATED CONTRACTS SHALL BE CONSIDERED IN MAKING AWARDS. ASPR 1-1107.2 (A) REQUIRES THE USE OF APPROPRIATE LANGUAGE IN THE PROCUREMENT SOLICITATION TO GIVE EFFECT TO ASPR 1-1107.1 (A) WHICH WAS ACCOMPLISHED BY THE INCLUSION OF THE "QUALIFIED END PRODUCTS" CLAUSE IN THE INSTANT SOLICITATION. SINCE THESE REGULATIONS ARE ISSUED PURSUANT TO THE ARMED SERVICES PROCUREMENT ACT, 10 U.S.C. 2301, ET SEQ., THEY HAVE THE FORCE OF LAW AND ARE BINDING NOT ONLY UPON BIDDERS BUT ALSO UPON THE HEAD OF THE PROCURING AGENCY AND SUBSIDIARY OFFICERS. PAUL V UNITED STATES, 371 U.S. 245. IN LIGHT OF THE LEGAL EFFECT OF THE CITED REGULATIONS, A BIDDER'S FAILURE TO INDICATE THE IDENTITY OF HIS QUALIFIED PRODUCT IN SOME WAY SO AS TO PERMIT THE GOVERNMENT TO DETERMINE THAT HIS PRODUCT IS QUALIFIED, MUST BE CONSIDERED A MATERIAL OMISSION RENDERING HIS BID OR OFFER NONRESPONSIVE. SEE B- 161779 DATED AUGUST 7, 1967.

WE HAVE BEEN INFORMALLY ADVISED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND THAT DURING MAY 1969, WHICH WAS AFTER THE BID OPENING BUT PRIOR TO AWARD, YOUR FIRM DID ADVISE THE CONTRACTING OFFICE THAT YOU WERE NOW THE OWNER OF THE BENDIX FACILITY LOCATED IN CINCINNATI, OHIO, WHICH THE RECORD INDICATES WAS LISTED ON QPL 24037-3. WHILE YOUR FIRM DID SUPPLY THE IDENTITY OF THE QUALIFIED PRODUCT YOU WERE OFFERING AFTER BID OPENING, SUCH INFORMATION DID NOT CURE THE NONRESPONSIVENESS OF YOUR BID. IN THIS REGARD, RESPONSIVENESS IS DETERMINED ONLY UPON THE BASIS OF THE BID AS SUBMITTED AT BID OPENING AND NOT THEREAFTER. 38 COMP. GEN. 819; B-147436, FEBRUARY 23, 1962. A NONRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING A MATERIAL PART OF THE BID AFTER THE OPENING OF BIDS WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID, THEREBY UNDERMINING THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. COMP. GEN. 856, 859.

UNDER THE CIRCUMSTANCES, WE SEE NO VALID BASIS ON WHICH WE COULD DISAGREE WITH THE ACTION OF THE PROCURING AGENCY IN REJECTING YOUR BID, AND YOUR PROTEST MUST THEREFORE BE DENIED.