B-164780, SEPT. 12, 1968

B-164780, SEPT. 12, 1968

TO GLOBE INDUSTRIES, INCORPORATED:

REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD MADE BY THE DEPARTMENT OF THE AIR FORCE TO AIRCRAFT APPLIANCES AND EQUIPMENT, LIMITED (AIRCRAFT) UNDER INVITATION FOR BIDS NO. F34601-68-B-0477 ISSUED BY THE OKLAHOMA CITY AIR MATERIEL AREA, TINKER AIR FORCE BASE, OKLAHOMA.

THE PROCUREMENT CALLED FOR A QUANTITY OF TACHOMETER GENERATORS. THESE GENERATORS HAD PREVIOUSLY BEEN PURCHASED FROM A QUALIFIED PRODUCTS LIST (QPL) MAINTAINED BY THE DEPARTMENT OF THE NAVY UNDER MIL G-5413 (MIL- SPEC). IN DECEMBER 1966 THIS MIL-SPEC WAS REVISED AND, AS A CONSEQUENCE, THE QPL WAS CANCELLED IN AUGUST 1967.

IN FEBRUARY 1968, WHEN THE INSTANT PROCUREMENT WAS BEING PREPARED THE CONTRACTING OFFICER WAS INFORMED THAT NO VENDOR HAD YET BEEN QUALIFIED TO THE REVISED MIL-G-5413D, BUT THAT THE NAVY WAS IN THE PROCESS OF CONDUCTING TESTS. HE WAS ADVISED IN THE PROCUREMENT REQUEST TO PROCURE THE ITEM ON A FIRST ARTICLE ACCEPTANCE BASIS PENDING COMPLETION OF QUALIFICATION. ACCORDINGLY, THE INVITATION IN QUESTION WAS ISSUED ON APRIL 10, 1968, WITH A CLAUSE ENTITLED "OPTION FOR PRODUCTION SAMPLE INSPECTION AND TEST". THIS INVITATION WAS SENT TO 16 POTENTIAL SOURCES -- ONLY 5 SOURCES, INCLUDING YOUR FIRM AND AIRCRAFT, HAD BEEN QUALIFIED UNDER THE CANCELLED QPL.

BIDDERS WER REQUESTED TO BID IN ACCORDANCE WITH MIL-G-5413D. PARAGRAPH 3.1 OF THIS SPECIFICATION PROVIDES THAT THE UNIT PROCURED SHALL BE LISTED ON OR APPROVED FOR LISTING ON THE APPLICABLE QUALIFIED PRODUCTS LIST. INDICATED, HOWEVER, THE INVITATION DID NOT INCLUDE THE QPL PROVISION SET FORTH IN ASPR 1-1107.2, BUT INCLUDED INSTEAD, AN OPTION FOR PRODUCTION TESTING.

ON APRIL 22, 1968, THE DEPARTMENT OF THE NAVY WROTE YOU THAT YOUR TACHOMETER HAD MET THE QUALIFICATION REQUIREMENTS OF THE SUBJECT MIL SPEC AND THAT IT "WILL BE LISTED ON THE NEXT ISSUE OF THE QUALIFIED PRODUCTS LIST". UPON RECEIPT OF THIS INFORMATION YOU WIRED THE CONTRACTING OFFICER ON APRIL 27, 1968, REQUESTING THAT THE INVITATION BE CLARIFIED TO SHOW A QUALIFIED PRODUCTS REQUIREMENT AS STATED IN PARAGRAPH 3.1 OF THE SPECIFICATION. THE CONTRACTING OFFICER, HOWEVER, DID NOT RESPOND TO YOUR WIRE. (NOR DID HE RESPOND TO YOUR SECOND WIRE TO THE SAME EFFECT SENT ON MAY 16, 1968, WHICH WAS AFTER THE BID OPENING.)

ON MAY 10, 1968, THE FOLLOWING BIDS WERE RECEIVED:

AIRCRAFT APPLIANCES AND EQUIPMENT $74,607.50

GENERAL INDUSTRIES, INC. $201,792.94

GLOBE INDUSTRIES, INC. $112,752.28

AERO PRECISION INDUSTRIES, INC. $160,501.08

THE LOW BIDDER, AIRCRAFT, STATED IN ITS BID THAT IT HAD SUCCESSFULLY COMPLETED ALL QUALIFICATION TESTING WITH THE NAVY EXCEPT THE RELIABILITY TESTS; AND THAT THESE TESTS OF 600 HOURS DURATION WERE TO BE PERFORMED DURING THE MONTH OF MAY 1968. ON JUNE 10, 1968, THE CONTRACTING OFFICER WAS ADVISED BY THE NAVY THAT AIRCRAFT'S SAMPLES HAD SUCCESSFULLY PASSED THE FIRST PART OF THE TEST SERIES AND IT APPEARED THAT FINAL TESTING AND APPROVAL WOULD BE ACCOMPLISHED WITHIN THE NEXT 30 DAYS. ON JUNE 13, 1968, A CONTRACT WAS AWARDED TO AIRCRAFT. (A FURTHER REPORT DATED JULY 23, 1968, FROM THE AIR FORCE STATES THAT AIRCRAFT'S SAMPLES HAVE SUCCESSFULLY COMPLETED THE RELIABILITY TEST AND ARE AWAITING FINAL APPROVAL OF DCAS QUALITY PERSONNEL.)

IT IS YOUR CONTENTION THAT THE QPL REQUIREMENT IN PARAGRAPH 3.1 OF THE SPECIFICATION WAS NOT WAIVED ON THIS PROCUREMENT MERELY BECAUSE THE "QUALIFIED PRODUCTS" PROVISION REQUIRED BY ASPR 1-1107.2 WAS NOT INCLUDED IN THE INVITATION. YOU CONTEND THAT A QUALIFIED PRODUCTS REQUIREMENT MAY ONLY BE WAIVED BY THE AUTHORITY RESPONSIBLE FOR MAINTAINING THE QPL IN QUESTION, WHICH IN THIS CASE WAS THE NAVY; AND THAT SINCE NO SUCH WAIVER WAS OBTAINED PARAGRAPH 3.1 REMAINED IN FORCE. IN THIS CONNECTION YOU CITE ASPR 1-1108 AND 1-1109.

YOU FEEL THAT A FAILURE TO SUSTAIN THE INTEGRITY OF THE QPL PROCEDURE IN THIS CASE WOULD BE INIMICAL TO THE INTEREST OF THE GOVERNMENT. YOU STATE AS FOLLOWS: "WHILE THE GOVERNMENT DOES NOT LIKE TO PROCURE ON A SOLE SOURCE BASIS, THE SERVICES ACTIVELY SOLICIT MANUFACTURERS TO QUALIFY PRODUCTS TO VARIOUS SPECIFICATIONS. A GREAT AMOUNT OF MONEY IS SPENT BY BOTH GOVERNMENT AND INDUSTRY IN ESTABLISHING AND MAINTAINING PRODUCTS ON QPL LISTS. FURTHERMORE, THE MANUFACTURERS UNDERSTANDING, ACCORDING TO THE SPECIFICATION, IS THAT THEY CANNOT COMPETE FOR THE BUSINESS UNLESS THEY ARE ON THE QPL. THE WHOLE CONCEPT OF QPL SPECIFICATIONS IS TO ASSURE A QUALITY PRODUCT. ,IT IS UNREASONABLE TO ASSUME THAT IT IS IN -THE BEST INTEREST OF THE GOVERNMENT- TO SAVE MONEY BY PURCHASING A PRODUCT OF UNPROVEN QUALITY AND AT THE SAME TIME UNDERMIND THE WHOLE QPL SYSTEM. GLOBE NOW HAS SIX ITEMS QUALIFIED TO FOUR DIFFERENT SPECIFICATIONS AND IS IN THE PROCESS OF DEVELOPING OR TESTING SEVERAL OTHER ITEMS FOR QUALIFICATION APPROVAL. ONE OF THESE ITEMS, INCIDENTALLY, IS THE ONLY BLOWER THAT APPEARS TO PERFORM SATISFACTORY IN A RADIO SET THAT IS CRITICAL TO THE NAVY'S COMMUNICATION SYSTEM. IF THE ACTION OF THE AIR FORCE IN THIS CASE IS CONDONED, WE ARE BEING TOLD, IN EFFECT, THAT THE QPL SYSTEM IS MEANINGLESS, THE ASPR'S ARE ONLY APPLICABLE WHEN IT SUITS THE GOVERNMENT - AND WE ARE WASTING TIME AND MONEY DEVELOPING AND QUALIFYING QUALITY PRODUCTS. WE DO NOT BELIEVE THAT THIS IS THE INTENTION OF THE DEPARTMENT OF DEFENSE OR THE FEDERAL GOVERNMENT.'

THE AIR FORCE MAINTAINS THAT ASPR 1-1108 AND 1-1109 WERE NOT APPLICABLE SIMPLY BECAUSE THERE WAS NO QPL INVOLVED IN THIS PROCUREMENT; AND THAT IN ANY CASE A WAIVER COULD HAVE BEEN OBTAINED UNDER ASPR 1-1109,BECAUSE ONLY ONE FIRM (YOUR FIRM) HAD BEEN QUALIFIED AND IT WAS THUS NECESSARY TO OBTAIN A WAIVER OF QPL AND INSTEAD USE PRODUCTION TESTING IN ORDER TO ENLARGE THE FIELD OF COMPETITION.

WE AGREE WITH THE AIR FORCE'S ANALYSIS OF THE SITUATION. ON APRIL 10, 1968, WHEN THE INVITATION WAS ISSUED NO PRODUCTS HAD BEEN QUALIFIED AS YET UNDER THE SUBJECT SPECIFICATION. CLEARLY NO QPL WAS IN EXISTENCE AT THAT POINT IN TIME. ON APRIL 22, THE NAVY WROTE THAT YOUR PRODUCT "WILL BE LISTED ON THE NEXT ISSUE OF THE QUALIFIED PRODUCTS LIST". ARGUABLY A QPL CAME INTO EXISTENCE AT THAT POINT. HOWEVER, THE INVITATION HAD ALREADY BEEN ISSUED WITHOUT A QUALIFIED PRODUCTS REQUIREMENT. IN YOUR WIRE OF APRIL 27, YOU ASKED THAT THE INVITATION BE CLARIFIED TO INCLUDE SUCH A REQUIREMENT. BUT THE CONTRACTING OFFICER, IN ORDER TO AVOID A SOLE-SOURCE SITUATION, DECIDED TO PROCEED WITH THE PROCUREMENT ON THE BASIS ISSUED. WE THINK HIS ACTIONS WERE PROPER UNDER THE CIRCUMSTANCES.

TO AVOID CONFUSION THE INVITATION SHOULD HAVE INCLUDED A PROVISION SPECIFICALLY ADVISING THAT PARAGRAPH 3.1 OF THE SPECIFICATION WAS NOT APPLICABLE FOR THE PROCUREMENT. ALSO, WE FIND NO ADEQUATE EXCUSE FOR THE AIR FORCE'S FAILURE TO RESPOND TO YOUR WIRES OF APRIL 27 AND MAY 16, 1968. THE AIR FORCE ADMITS AS MUCH. THE DEPARTMENT FEELS THAT PERHAPS YOUR PROTEST MIGHT NOT HAVE BEEN MADE IF THE CONTRACTING OFFICER HAD REPLIED TO YOUR TELEGRAMS.

BE THAT AS IT MAY, WE FIND NO BASIS UPON WHICH TO QUESTION THE AWARD. ACCORDINGLY, YOUR PROTEST IS DENIED.

CERTAINLY, WE ARE NOT UNMINDFUL OF YOUR COMMENTS CONCERNING THE INTEGRITY OF QPL-S. WE INITIALLY APPROVED THE QPL PROCEDURE ON THE BASIS THAT ALTHOUGH QPL'S REPRESENTED A RESTRICTION ON COMPETITION, THEY WERE NEVERTHELESS NECESSARY IN ORDER TO ASSURE THE DELIVERY OF A QUALITY PRODUCT WITHIN A REASONABLE TIME. SEE 36 COMP. GEN. 809, 815 816. THUS APPROVED A QUALIFYING PROCEDURE FOR TESTING OF PRODUCTS PRIOR TO THE ISSUANCE OF SOLICITATIONS. AT THE SAME TIME THE DEPARTMENTS HAVE ENACTED REGULATIONS TO ASSURE THAT THE QPL PROCEDURE WILL NOT BE USED AS A MEANS TO CONDUCT SOLE-SOURCE PROCUREMENTS. WHEN NECESSARY TO ACHIEVE ADEQUATE COMPETITION, THE GOVERNMENT WILL SUSPEND THE QPL REQUIREMENT ON A PARTICULAR PROCUREMENT IF A REASONABLE ALTERNATIVE IS AVAILABLE. SEE ASPR 1-1109. WE BELIEVE THE INSTANT PROCUREMENT IS CONSISTENT WITH THESE CONCEPTS.