B-141334, MAR. 4, 1960

B-141334, MAR. 4, 1960

TO PAUL H. WERRES COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1960, FURTHER PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE METC-TRUE COMPANY, UNDER INVITATION FOR BIDS NO. QM 44-109-60-4, ISSUED BY THE DEPARTMENT OF THE ARMY, QUARTERMASTER ACTIVITIES, AT CAMERON STATION. YOU REQUEST THAT, ON THE BASIS OF THE REPRESENTATIONS SET FORTH IN YOUR LETTER, WE DIRECT THE CONTRACTING OFFICER TO WITHHOLD THE AWARD OF SUCH CONTRACT UNTIL THE MATTER HAS BEEN REVIEWED.

BY LETTER OF OCTOBER 31, 1959, AND SUBSEQUENT CORRESPONDENCE, YOU CONTENDED THAT IT WOULD NOT BE POSSIBLE FOR THE LOW BIDDER TO COMPLY WITH THE TERMS OF THE CONTRACT WITH RESPECT TO THE FURNISHING OF A CERTIFICATE OF COMPLIANCE BECAUSE IT COULD NOT PERFORM ALL THE TESTS SET FORTH IN THE SPECIFICATIONS WHICH YOU URGE ARE REQUIRED BY THE SPECIFICATIONS TO SUPPORT THE CERTIFICATE. IN DECISION OF JANUARY 19, 1960, B-141334, TO THE SECRETARY OF THE ARMY, WE POINTED OUT THAT BY AMENDMENT NO. 1, DATED SEPTEMBER 10, 1959, THE REQUIREMENT REGARDING TESTS WAS DELETED FROM THE INVITATION AND, IN LIEU THEREOF, A CERTIFICATE OF COMPLIANCE WAS TO BE FURNISHED. WE HELD FURTHER THAT THE "BACK-UP," AS REQUIRED BY PARAGRAPH 3.1.4 OF THE SPECIFICATIONS TO SUPPORT THE CERTIFICATE, REASONABLY MIGHT CONSIST OF PLANT INSPECTION DATA, THE CONTRACTOR'S QUALITY ASSURANCE PROGRAM, PERFORMANCE EXPERIENCE OF LARGE USERS OF COMPARABLE EQUIPMENT, ETC.

YOU NOW CONTEND THAT THE ONLY CRITERIA BY WHICH "BACK-UP" DATA MAY BE DETERMINED TO BE ACCEPTABLE IN THIS CASE ARE THE GENERAL OBSERVATIONS SET FORTH IN LETTER OF DECEMBER 23, 1959, FROM AN EMPLOYEE IN THE NAVY PURCHASING OFFICE, THAT "BACK-UP DATA SHOULD SHOW EVIDENCE OF PREVIOUS SUCCESSFUL PERFORMANCE OF THESE TESTS OR THE EQUIVALENT.' IT IS FURTHER URGED BY YOU THAT SINCE THE DEPARTMENT OF THE NAVY PREPARED THE SPECIFICATIONS FOR THE EQUIPMENT INVOLVED, ONLY THAT AGENCY IS COMPETENT TO EVALUATE SUCH "BACK-UP" DATA AS MAY BE FURNISHED BY THE SUBJECT CONTRACTOR.

WE CANNOT AGREE THAT THE OPINION EXPRESSED BY THE AUTHOR OF THE NAVY PURCHASING OFFICE LETTER AS TO WHAT HE CONSIDERS TO BE ADEQUATE "BACK UP" DATA IS OR SHOULD BE REQUIRED TO BE ACCEPTED BY THE ARMY PROCUREMENT OFFICIALS. SINCE THE TESTING REQUIREMENTS WERE SPECIFICALLY ELIMINATED FROM THE SPECIFICATIONS IN THIS PROCUREMENT, WE MUST REITERATE OUR CONCLUSION SET FORTH IN THE REFERRED TO DECISION THAT "BACK-UP" DATA NEED NOT BE SUPPORTED BY THE RESULTS OF PREVIOUS TESTS OF THE EQUIPMENT. WHAT MAY BE ACCEPTABLE AS THE "EQUIVALENT" THEREOF IS SOLELY FOR DETERMINATION BY THE CONTRACTING OFFICER OF THE DEPARTMENT OF THE ARMY UNDER THE TERMS OF THE CONTRACT, IN THE SAME MANNER AS ANY OTHER FACTUAL MATTER PROPERLY FOR HIS CONSIDERATION UNDER THE TERMS OF THE CONTRACT.

ACCORDINGLY, YOUR LETTER AFFORDS NO LEGAL BASIS FOR THIS OFFICE TO DISTURB THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY.