B-193283, MARCH 29, 1979, 58 COMP.GEN. 381

B-193283: Mar 29, 1979

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CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - LISTING - CAPABILITY TO DELIVER LISTED PRODUCT - CONTRACTOR RESPONSIBILITY AND/OR CONTRACT ADMINISTRATION MATTER WHETHER CONTRACTOR WILL DELIVER QUALIFIED END PRODUCT LISTED ON QUALIFIED PRODUCTS LIST (QPL) IS MATTER RELATING TO AFFIRMATIVE DETERMINATION OF OFFEROR'S RESPONSIBILITY AND TO CONTRACT ADMINISTRATION. GENERAL ACCOUNTING OFFICE DOES NOT REVIEW AFFIRMATIVE DETERMINATION OF RESPONSIBILITY IN ABSENCE OF SHOWING OF FRAUD OR ALLEGATIONS THAT DEFINITIVE RESPONSIBILITY CRITERIA IN SOLICITATION WERE MISAPPLIED. DLA400-78-R-2883 WERE ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER. (ZAN) WAS NOT LISTED AS A QUALIFIED MANUFACTURER OF THESE ITEMS.

B-193283, MARCH 29, 1979, 58 COMP.GEN. 381

CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - LISTING - CAPABILITY TO DELIVER LISTED PRODUCT - CONTRACTOR RESPONSIBILITY AND/OR CONTRACT ADMINISTRATION MATTER WHETHER CONTRACTOR WILL DELIVER QUALIFIED END PRODUCT LISTED ON QUALIFIED PRODUCTS LIST (QPL) IS MATTER RELATING TO AFFIRMATIVE DETERMINATION OF OFFEROR'S RESPONSIBILITY AND TO CONTRACT ADMINISTRATION. GENERAL ACCOUNTING OFFICE DOES NOT REVIEW AFFIRMATIVE DETERMINATION OF RESPONSIBILITY IN ABSENCE OF SHOWING OF FRAUD OR ALLEGATIONS THAT DEFINITIVE RESPONSIBILITY CRITERIA IN SOLICITATION WERE MISAPPLIED, AND DOES NOT REVIEW MATTERS OF CONTRACT ADMINISTRATION. BIDDERS - QUALIFICATIONS - QUALIFIED PRODUCTS PROCUREMENT - BIDDER V. PRODUCT QUALIFICATION QUALIFIED PRODUCTS LIST (QPL) REQUIREMENT IN SOLICITATION RELATES TO QUALIFICATION OF SPECIFIC PRODUCTS AND DOES NOT CONCERN QUALIFICATION OF INDIVIDUAL OFFERORS. THEREFORE, QPL REQUIREMENT DOES NOT CONSTITUTE DEFINITIVE RESPONSIBILITY CRITERION.

IN THE MATTER OF AMERICAN ATHLETIC EQUIPMENT DIVISION, AMF INCORPORATED, MARCH 29, 1979:

INVITATION FOR BIDS (IFB) NO. DLA400-78-B-2074-0001 AND REQUEST FOR PROPOSALS (RFP) NO. DLA400-78-R-2883 WERE ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, DEFENSE LOGISTICS AGENCY (DLA), RICHMOND, VIRGINIA, FOR THE PROCUREMENT OF MILITARY STOPWATCHES, NATIONAL STOCK NUMBER (NSN) 6645-00- 126-0286, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-S 14823. THE SOLICITATIONS REQUIRED THAT THE STOPWATCHES BE QUALIFIED END PRODUCTS UNDER THE APPLICABLE QUALIFIED PRODUCTS LIST (QPL). WHILE Z.A.N. CO. (ZAN) WAS NOT LISTED AS A QUALIFIED MANUFACTURER OF THESE ITEMS, IT PROPOSED TO FURNISH QUALIFIED PRODUCTS OF ANOTHER MANUFACTURER. AWARDS WERE MADE UNDER BOTH SOLICITATIONS TO ZAN AS THE LOW, RESPONSIBILE OFFEROR.

AMERICAN ATHLETIC EQUIPMENT DIVISION, AMF INCORPORATED (AMF), HAS FILED A PROTEST AGAINST THE AWARDS, CONTENDING THAN ZAN IS NOT A AUTHORIZED DISTRIBUTOR UNDER THE QPL, HAS NO INTENTION OF FURNISHING A QUALIFIED END PRODUCT, AND IS OTHERWISE NONRESPONSIBLE. IN THIS REGARD, AMF HAS SUBMITTED AN AFFIDAVIT TO THE EFFECT THAT ZAN'S SUBCONTRACTOR QUOTATION FROM ITS PROPOSED SUPPLIER, SUBMITTED TO DLA DURING THE PREAWARD SURVEYS CONDUCTED, SPECIFIES DELIVERY OF A NON-QPL PRODUCT. AMF FURTHER STATES THAT THE CONTRACTING OFFICER, PRIOR TO AWARD, SHOULD HAVE DETERMINED THAT ZAN HAD THE AUTHORITY AND CAPABILITY TO PROVIDE THE QUALIFIED STOPWATCHES OFFERED IN ITS BID.

IN D. MOODY & CO., INC.; ASTRONAUTICS CORPORATION OF AMERICAN, 55 COMP.GEN. 1 (1975), 75-2 CPD 1, WE NOTED THAT:

THE QPL PROCUREMENT PROCESS IS A TWO STEP PROCESS: THE FIRST STEP IS THE PROCESS OF QUALIFYING THE PRODUCT AND THE SECOND STEP IS THE AGENCY'S PROCUREMENT OF THE QUALIFIED PRODUCT. THESE STEPS ARE MUTUALLY EXCLUSIVE, AND A FIRM WHICH PASSES THE TESTS QUALIFYING THE PRODUCT NEED NOT BE THE SAME FIRM THAT BIDS THE QUALIFIED PRODUCT. IN THIS CONNECTION, WE HAVE CONSISTENTLY HELD THAT THE MERE LISTING OF A PRODUCT ON A QPL DOES NOT RELIEVE A CONTRACTOR FROM ITS OBLIGATION OF DELIVERING AN ITEM WHICH MEETS THE SPECIFICATIONS.

WE THEREFORE CONCLUDED THAT VALID BIDS MAY BE SUBMITTED IN QPL PROCUREMENTS BY BIDDERS OTHER THAN MANUFACTURERS OR DISTRIBUTORS.

HERE, AN EXAMINATION OF ZAN'S BID AND PROPOSAL INDICATES THAT ZAN OFFERED WITHOUT EXCEPTION TO FURNISH THE QPL PRODUCT IN COMPLIANCE WITH THE SPECIFICATIONS. THE QUESTION WHETHER ZAN WILL IN FACT FURNISH A QPL PRODUCT IN CONFORMITY WITH THE SPECIFICATIONS IN THE COURSE OF ITS PERFORMANCE OF THE CONTRACTS RELATES TO THE CONTRACTOR'S RESPONSIBILITY AND TO MATTERS OF CONTRACT ADMINISTRATION. THE CONTRACTING OFFICER MADE AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY BEFORE AWARDING THE CONTRACTS AND IS ALSO TAKING STEPS TO ASSURE MONITORING OF THE PERFORMANCE OF THE CONTRACTS TO INSURE DELIVERY OF CONFORMING PRODUCTS. OUR OFFICE DOES NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY IN THE ABSENCE OF A SHOWING OF FRAUD ON THE PART OF PROCURING OFFICIALS OR ALLEGATIONS THAT DEFINITIVE RESPONSIBILITY CRITERIA WERE MISAPPLIED.

IN THIS CONNECTION, AMF ARGUES THAT THE QPL REQUIREMENT IN THE SOLICITATIONS CONSTITUTED A DEFINITIVE RESPONSIBILITY CRITERION. DISAGREE. THE PURPOSE OF THE QPL SYSTEM IS TO ALLOW THE GOVERNMENT TO EFFICIENTLY PROCURE ITEMS ON WHICH SUBSTANTIAL TESTING WOULD BE REQUIRED BY PERMITTING EXTENSIVE TESTS NEEDED TO SHOW THAT THE PARTICULAR PRODUCT WILL MEET THE GOVERNMENT'S REQUIREMENTS TO BE CONDUCTED PRIOR TO THE ACTUAL PROCUREMENT ACTION. THE QPL, THEREFORE, CONCERNS THE QUALIFICATION OF A PRODUCT. DEFINITIVE RESPONSIBILITY CRITERIA, HOWEVER, ARE SOLELY CONCERNED WITH THE QUALIFICATIONS OF AN OFFEROR. SUCH SPECIAL STANDARDS OF RESPONSIBILITY LIMIT THE CLASS OF OFFERORS TO THOSE MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE QUALIFICATIONS NECESSARY FOR ADEQUATE CONTRACT PERFORMANCE, E.G., MINIMUM EXPERIENCE REQUIREMENTS. HAUGHTON ELEVATOR DIVISION, RELIANCE ELECTRIC COMPANY, 55 COMP.GEN. 1051(1976), 76-1 CPD 294. THERE ARE NO SUCH QUESTIONS PRESENTED HERE.

MOREOVER, WHETHER ZAN IN FACT PERFORMS IN ACCORDANCE WITH THE REQUIREMENTS OF THE CONTRACT IS A MATTER OF CONTRACT ADMINISTRATION AND IS NOT FOR OUR CONSIDERATION. VIRGINIA-MARYLAND ASSOCIATES, B-191252, MARCH 28, 1978, 78-1 CPD 238.

IN VIEW OF THE FOREGOING, THE PROTEST IS DISMISSED.

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