B-171536(2), JUN 7, 1971

B-171536(2), JUN 7, 1971

BID PROTEST - BIDDER RESPONSIBILITY - QUALIFIED PRODUCTS LIST DECISION CONCERNING PROTEST BY THE BLACK & DECKER MANUFACTURING COMPANY, SECOND LOW BIDDER, AGAINST ANY AWARD TO AIR SPEED TOOL COMPANY, LOW BIDDER UNDER A SOLICITATION ISSUED BY GSA, FEDERAL SUPPLY SERVICE, FOR CERTAIN DRILLS. BECAUSE THE SOLICITATION WAS LIMITED TO ITEMS ON THE QUALIFIED PRODUCTS LIST (QPL) AND AIR SPEED WAS REMOVED FROM THE QPL AFTER BID OPENING, THE CONTRACTING OFFICER SHOULD WITHHOLD AN AWARD ON THE GROUND THAT AIR SPEED IS NOT A RESPONSIBLE BIDDER. HOWEVER, IF AIR SPEED ESTABLISHES RESPONSIBILITY BEFORE THE TIME OF AWARD BY BEING REINSTATED ON THE QPL, TEMPORARY ELIMINATION SHOULD NOT PRECLUDE AN AWARD TO THE LOW BIDDER.

TO MR. KUNZIG:

WE REFER TO THE LETTER OF YOUR GENERAL COUNSEL DATED APRIL 2, 1971, CONCERNING THE TELEGRAM DATED DECEMBER 18, 1970, AND LETTER DATED DECEMBER 21, 1970, FROM THE BLACK & DECKER MANUFACTURING CO. PROTESTING ANY AWARD EXCEPT TO BLACK & DECKER OF ITEM 5 OF A REQUIREMENTS CONTRACT UNDER SOLICITATION NO. FPNTP-B6-18729-A-11-10-70, ISSUED OCTOBER 9, 1970, BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE. UNDER THE TERMS OF THE SOLICITATION, AWARD MAY BE MADE ONLY FOR A PRODUCT WHICH HAS BEEN TESTED AND APPROVED FOR INCLUSION ON THE QUALIFIED PRODUCTS LIST (QPL) PRIOR TO THE TIME SET FOR THE RECEIPT OF BIDS. YOUR GENERAL COUNSEL IS OF THE OPINION THAT A BIDDER WHO IS DELETED FROM THE QPL SUBSEQUENT TO THE OPENING OF BIDS IS INELIGIBLE TO RECEIVE AN AWARD.

BIDS FOR THE CONTRACT WERE OPENED ON NOVEMBER 17, 1970. AIR SPEED TOOL COMPANY WAS LOW BIDDER ON ITEM 5 WITH A BID PRICE OF $27.50 PER ITEM. BLACK & DECKER WAS SECOND LOW BIDDER WITH A BID PRICE OF $31.74 PER ITEM. IN THE DECEMBER 21 LETTER, BLACK & DECKER PROTESTED AGAINST AN AWARD TO AIR SPEED ON THE GROUNDS THAT IN ITS BID AIR SPEED HAD DESIGNATED ITSELF AS THE MANUFACTURER OF ITEM 5 AND ITS LOS ANGELES PLANT AS THE PLACE OF MANUFACTURE. BLACK & DECKER CONTENDED THAT THE DESIGNATION WAS INCORRECT AS D-K PRODUCTS DIVISION OF DRESSER INDUSTRIES MANUFACTURED THE COMPONENTS OF THE DRILL AT ITS OWN LOS ANGELES PLANT, AND AIR SPEED MERELY ACQUIRED THE MANUFACTURED COMPONENTS FROM D-K PRODUCTS FOR ASSEMBLY. BLACK DECKER FURTHER ALLEGED THAT SINCE AIR SPEED WAS LISTED ON THE QPL AT THE TIME OF BID OPENING AS THE ACTUAL MANUFACTURER AND SINCE THERE HAD BEEN NO APPLICATION SUBMITTED TO, OR APPROVED BY, THE NAVAL SHIP ENGINEERING CENTER (NSEC), THE AGENCY DESIGNATED IN THE SPECIFICATION AS BEING RESPONSIBLE FOR THE QPL, TO RECLASSIFY AIR SPEED AS A DISTRIBUTOR FOR ANOTHER MANUFACTURER, OR FOR AN EXTENSION OF THE QUALIFICATION TO ANOTHER PLANT, THE AIR SPEED LISTING WAS NO LONGER VALID BECAUSE IT NO LONGER MANUFACTURED THE DRILLS.

IN A SUBSEQUENT LETTER OF MARCH 3, 1971, BLACK & DECKER ALLEGED THAT D-K PRODUCTS' LOS ANGELES PLANT HAD BEEN CLOSED AND THAT AIR SPEED WAS NEGOTIATING WITH DRESSER INDUSTRIES IN AN ATTEMPT TO PURCHASE THE PLANT AND ITS EQUIPMENT. IN THE LETTER IT WAS ALSO CONTENDED THAT THE CHANGE IN MANUFACTURING SITE, PLANT OWNERSHIP, AND THE FACT THAT THE NEW OWNERSHIP COULD EXERCISE NO HOLD OVER EXPERIENCED PERSONNEL INDICATED THAT THE CONDITIONS OF MANUFACTURE WERE SO CHANGED AS TO INVALIDATE AIR SPEED'S QPL LISTING. WE HAVE BEEN ADVISED BY AIR SPEED THAT IT IS NOW OPERATING THE FORMER D-K PRODUCTS PLANT WITH ALL THE EQUIPMENT AND PERSONNEL FORMERLY EMPLOYED BY D-K PRODUCTS. THE PLANT HAS PREVIOUSLY BEEN APPROVED AND LISTED ON THE QPL FOR THE MANUFACTURE OF SIMILAR EQUIPMENT BY D-K PRODUCTS.

AS A RESULT OF BLACK & DECKER'S ALLEGATIONS, NSEC CONDUCTED A SURVEY OF AIR SPEED'S PLANT (THIS DID NOT THEN INCLUDE THE FORMER D-K PRODUCTS PLANT) TO DETERMINE WHETHER ITS QPL LISTING WAS STILL VALID. BY LETTER OF MARCH 15, 1971, NSEC ADVISED AIR SPEED THAT THE RESULTS OF THE SURVEY SHOWED AIR SPEED DID NOT HAVE ADEQUATE FACILITIES FOR PRODUCTION OF ITEM 5 IN ACCORDANCE WITH THE APPLICABLE FEDERAL SPECIFICATION OO-D 691D. THE SURVEY FURTHER REVEALED THAT ONLY TOKEN ASSEMBLY WORK WAS ACCOMPLISHED AT AIR SPEED'S PLANT, THAT PRODUCTION WAS TOTALLY DEPENDENT UPON D-K PRODUCTS, AND THAT AIR SPEED HAD VIRTUALLY NO QUALITY ASSURANCE PROGRAM AND WAS NOT EQUIPPED TO CONDUCT THE STIPULATED PERFORMANCE TESTS. THE LETTER ALSO NOTED THAT D-K PRODUCTS HAD ADVISED NSEC THAT IT WAS NO LONGER MANUFACTURING THE PARTS FOR THE DRILLS IN QUESTION AT ITS LOS ANGELES PLANT AND HAD CLOSED THESE FACILITIES. IN VIEW OF THESE FACTS, AIR SPEED WAS INFORMED THAT ITS ITEM 5 DRILL HAD BEEN REMOVED FROM THE QPL UNTIL SUCH TIME AS ADEQUATE FACILITIES COULD BE OBTAINED AND THEIR MANUFACTURING CAPABILITIES DEMONSTRATED.

BECAUSE THE SOLICITATION WAS SPECIFICALLY LIMITED TO A QPL PRODUCT AND BECAUSE AIR SPEED WAS REMOVED FROM THE QPL AFTER THE BIDS WERE OPENED, IT WOULD BE APPROPRIATE FOR THE CONTRACTING OFFICER TO WITHHOLD AN AWARD FROM AIR SPEED ON ITEM 5 ON THE GROUNDS THAT IT IS NOT A RESPONSIBLE BIDDER FOR THE IMMEDIATE PROCUREMENT. B-150427, FEBRUARY 5, 1963. HOWEVER, A BIDDER MAY ESTABLISH ITSELF AS RESPONSIBLE UP UNTIL THE TIME OF AWARD. 48 COMP. GEN. 158, 161 (1968). THEREFORE, SHOULD AIR SPEED BE REINSTATED ON THE QPL PRIOR TO AWARD OF THE CONTRACT ON ITEM 5, THE TEMPORARY ELIMINATION FROM THE QPL SHOULD NOT PRECLUDE AN AWARD TO THE BIDDER.