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B-158132, JAN. 12, 1966, 45 COMP. GEN. 397

B-158132 Jan 12, 1966
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CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - BIDDERS OPTION TO FURNISH EITHER OF TWO ITEMS TWO BIDDERS WHOSE NONCOMPLIANCE WITH THE INVITATION REQUIREMENT TO IDENTIFY AND FURNISH THE TEST NUMBER IN THE SPACES PROVIDED ON THE BID FORM OF EACH QUALIFIED ITEM OFFERED WAS SATISFIED BY ONE BIDDER SUPPLYING THE INFORMATION IN A TIMELY TELEGRAPHIC MODIFICATION. MAY HAVE THEIR BIDS CONSIDERED. THE INVITATION PROVIDING THAT AWARDS WILL BE MADE FOR ITEMS WHICH HAVE BEEN TESTED AND HAVE QUALIFIED FOR INCLUSION IN THE APPLICABLE QUALIFIED PRODUCTS LIST BEFORE THE OPENING OF BIDS. IT IS IMMATERIAL THAT A BIDDER BY HAVING TWO QUALIFIED PRODUCTS MAY HAVE A COMPETITIVE ADVANTAGE. 1966: REFERENCE IS MADE TO LETTERS DATED DECEMBER 14 AND 27.

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B-158132, JAN. 12, 1966, 45 COMP. GEN. 397

CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - BIDDERS OPTION TO FURNISH EITHER OF TWO ITEMS TWO BIDDERS WHOSE NONCOMPLIANCE WITH THE INVITATION REQUIREMENT TO IDENTIFY AND FURNISH THE TEST NUMBER IN THE SPACES PROVIDED ON THE BID FORM OF EACH QUALIFIED ITEM OFFERED WAS SATISFIED BY ONE BIDDER SUPPLYING THE INFORMATION IN A TIMELY TELEGRAPHIC MODIFICATION, AND WAIVER OF THE OMISSION AS A MINOR INFORMALITY, AND BY THE AVAILABILITY OF THE INFORMATION ON THE QUALIFIED ITEMS OFFERED BY THE SECOND BIDDER BY REFERENCE TO THE APPROPRIATE QUALIFIED PRODUCTS LIST, MAY HAVE THEIR BIDS CONSIDERED, NOTWITHSTANDING THE OFFER TO FURNISH EITHER OF TWO QUALIFIED PRODUCTS AT THEIR OPTION ON A PARTICULAR ITEM, THE INVITATION PROVIDING THAT AWARDS WILL BE MADE FOR ITEMS WHICH HAVE BEEN TESTED AND HAVE QUALIFIED FOR INCLUSION IN THE APPLICABLE QUALIFIED PRODUCTS LIST BEFORE THE OPENING OF BIDS, IT WOULD BE INCONSISTENT, WHEN NOT PROHIBITED, TO HOLD THAT A BIDDER COULD OFFER EITHER OF TWO QUALIFIED PRODUCTS BUT COULD NOT OFFER EITHER OR BOTH AT HIS OPTION, AND IT IS IMMATERIAL THAT A BIDDER BY HAVING TWO QUALIFIED PRODUCTS MAY HAVE A COMPETITIVE ADVANTAGE.

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY, JANUARY 12, 1966:

REFERENCE IS MADE TO LETTERS DATED DECEMBER 14 AND 27, 1965, FROM YOUR ASSISTANT COUNSEL, REFERENCE DSAH-G, CONCERNING THE PROTESTS OF ROYAL LUBRICANTS COMPANY, AMERICAN OIL AND SUPPLY COMPANY, AND BRAY OIL COMPANY, AGAINST AWARD TO ANY BIDDER WHO DID NOT SUPPLY THE IDENTITY OF THE QUALIFIED PRODUCTS OFFERED IN THE APPROPRIATE PARAGRAPH UNDER INVITATIONS FOR BIDS DSA-600-66-81, DSA-600-66-84, AND DSA-600 66-89 ISSUED BY THE DEFENSE FUEL SUPPLY CENTER.

THE PROTESTS APPLY TO ALL THREE INVITATIONS; HOWEVER, THE QUESTION TO BE RESOLVED IS THE SAME UNDER EACH INVITATION AND RESOLUTION OF THE PROTESTS UNDER ONE OF THE INVITATIONS CLEARLY CAN BE DETERMINATIVE FOR ALL THREE INVITATIONS.

THE PARTICULAR CLAUSE LEADING TO THE PROTESTS, PARAGRAPH 23, PAGE 7 OF EACH INVITATION, READS AS FOLLOWS:

QUALIFIED PRODUCTS.--- AWARDS FOR ANY ITEMS WHICH ARE REQUIRED TO BE QUALIFIED PRODUCTS WILL BE MADE ONLY WHEN SUCH ITEMS HAVE BEEN TESTED AND HAVE QUALIFIED FOR INCLUSION IN THE APPLICABLE QUALIFIED PRODUCT LIST (WHETHER OR NOT ACTUALLY INCLUDED IN THE LIST) BEFORE THE TIME SET FOR OPENING OF BIDS. BIDDERS SHOULD CONTACT THE QUALIFYING AGENCY DESIGNATED IN THE APPLICABLE SPECIFICATION TO ARRANGE TO HAVE THE PRODUCTS WHICH THEY INTEND TO OFFER TESTED FOR QUALIFICATION. BIDDERS OFFERING PRODUCTS WHICH HAVE BEEN TESTED AND QUALIFIED, BUT WHICH ARE NOT YET LISTED, ARE REQUESTED TO SUBMIT EVIDENCE OF SUCH QUALIFICATION WITH THEIR BIDS SO THAT THEY MAY BE GIVEN CONSIDERATION. ANY BID WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED WILL BE REJECTED. THE BIDDER SHALL IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED IN THE BLANK SPACES BELOW.

THE SPACES PROVIDED BELOW CONSISTED OF THREE COLUMNS HEADED "ITEM NO. OR PRODUCT," "BRAND NAME" AND "TEST NO. OR GOV-T INDENT. NO., " EACH COLUMN BEING NINE ROWS LONG.

THE CONTRACTING OFFICER REPORTS THAT THE LAST TWO SENTENCES OF THE ABOVE CLAUSE REQUIRING IDENTIFICATION OF THE QUALIFIED PRODUCT BEING OFFERED AND REQUIRING THAT THE BIDDER IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED IN THE SPACES BELOW HAVE BEEN USED IN DEFENSE FUEL SUPPLY CENTER INVITATIONS FOR A VERY SHORT TIME. PRIOR THERETO THE LAST TWO SENTENCES DID NOT APPEAR IN THE CLAUSE. THE CLAUSE WAS REWRITTEN TO (I) PROVIDE ASSURANCE THAT BIDDERS UNDERSTOOD THAT THE PRODUCT DESIRED WAS A QUALIFIED PRODUCT, (II) TO PRECLUDE THE NEED TO CONTACT BIDDERS AFTER BID OPENING TO ASCERTAIN WHAT QUALIFICATION IDENTIFICATION PRODUCT THEY WERE OFFERING, AND (III) TO PRECLUDE BID SHOPPING AFTER OPENING AND AWARD. IT IS FURTHER REPORTED THAT SINCE BIDDERS WHO HAVE NO QUALIFIED PRODUCT ON THE QUALIFIED PRODUCTS LIST MAY BID BASED ON SUPPLYING ANOTHER COMPANY'S QUALIFIED PRODUCT, PACKAGED BY THEM, THERE OFTEN EXISTED UNDER THE PRIOR CLAUSE A QUESTION WHETHER THE BIDDER WAS IN FACT OFFERING AND COULD SUPPLY A QUALIFIED PRODUCT. IN ADDITION A PRACTICE WAS DEVELOPING WHEREBY BIDDERS WOULD FAIL TO INDICATE A QUALIFIED PRODUCT AND WOULD THEN SHOP AROUND AFTER BID OPENING, IF THEY WERE LOW BIDDER, IN AN ATTEMPT TO LOCATE A QUALIFIED PRODUCT TO FURNISH. IT IS STATED THAT THE USE OF THE LANGUAGE IN THE NEW CLAUSE WAS INTENDED TO ELIMINATE THE ADMINISTRATIVE BURDEN IN MAKING INQUIRIES AND TO PREVENT BID SHOPPING BY REQUIRING IDENTIFICATION OF THE QUALIFIED PRODUCT OR PRODUCTS OFFERED.

INVITATION FOR BIDS DSA-600-66-84 REQUESTED BIDS FOR 11 PRODUCTS WITH DELIVERIES TO VARIOUS LOCATIONS FOR EACH PRODUCT. TEN OF THESE PRODUCTS' SPECIFICATIONS REQUIRE QUALIFICATION (ALL BUT ITEM J, SPECIFICATION VV-C- 846) AND ROYAL LUBRICANTS HAS QUALIFICATION APPROVAL FOR THREE OF THESE PRODUCTS, ITEMS K, M, AND N. HOWEVER, ROYAL LUBRICANTS BID ONLY ON ITEMS K AND N.

ITEM K OF THE INVITATION CALLED FOR HYDRAULIC FLUID PETROLEUM BASE, SPECIFICATION MIL-H-5606B, DELIVERED TO THREE LOCATIONS. BIDS WERE RECEIVED FROM FOUR COMPANIES, AMERICAN OIL AND SUPPLY COMPANY, BRAY OIL COMPANY, PENNSYLVANIA REFINING COMPANY, AND ROYAL LUBRICANTS COMPANY. BRAY OIL COMPANY, THE LOW BIDDER ON THE TRACY DEPOT DESTINATION (ROYAL DID NOT BID THIS LOCATION), DID NOT FILL IN THE INFORMATION REQUESTED IN PARAGRAPH 23, BUT BY TELEGRAPHIC MODIFICATION RECEIVED PRIOR TO BID OPENING, STATED "ITEM K IS BRAYCO MICRONIC 756C OR 756D QUALIFICATION NUMBERS NAEC-AML-1804 OR AML-78272-64 RESPECTIVELY.' THE LOW BIDDER FOR THE MEMPHIS AND RICHMOND DEPOT DESTINATIONS WAS PENNSYLVANIA REFINING COMPANY WHO FAILED TO FILL IN PARAGRAPH 23 BUT LISTED PENNSYLVANIA REFINING COMPANY AS THE MANUFACTURING AND FILLING POINT OF THIS ITEM UNDER SECTION V, MANUFACTURING AND FILLING POINTS. PENNSYLVANIA REFINING COMPANY IS A QUALIFIED SUPPLIER FOR THIS ITEM. THE SECOND LOW BIDDER FOR THESE DESTINATIONS WAS AMERICAN OIL AND SUPPLY COMPANY WHO FULLY COMPLETED PARAGRAPH 23.

THE OTHER ITEM BID UNDER THIS INVITATION BY ROYAL LUBRICANTS WAS ITEM N, HYDRAULIC FLUID PETROLEUM BASE, SPECIFICATION MIL-H-6083B. FOUR BIDS WERE RECEIVED FOR THIS ITEM FROM THE SAME FOUR COMPANIES THAT BID UNDER ITEM K. THE LOW BIDDER ON THE THREE DESTINATIONS UNDER ITEM N IS PENNSYLVANIA REFINING COMPANY WHO MADE NO REPRESENTATION UNDER ITEM 23 BUT IDENTIFIED THE PENNSYLVANIA REFINING COMPANY AS A MANUFACTURER FOR THIS ITEM UNDER SECTION V, MANUFACTURING AND FILLING POINTS. PENNSYLVANIA REFINING COMPANY HAS QUALIFICATION APPROVAL FOR TWO PRODUCTS REQUIRED UNDER THIS ITEM. ROYAL LUBRICANTS IS THE LOW BIDDER ON THE MEMPHIS AND RICHMOND DEPOT DESTINATIONS. BRAY OIL COMPANY IS SECOND LOW BIDDER ON THE TRACY DEPOT DESTINATION.

ROYAL LUBRICANTS COMPANY, AMERICAN OIL AND SUPPLY COMPANY, AND BRAY OIL COMPANY ALL PROTEST ANY AWARDS TO PENNSYLVANIA REFINING COMPANY ON ACCOUNT OF ITS FAILURE TO SPECIFY THE PRODUCT OFFERED. ROYAL LUBRICANTS APPARENTLY ALSO PROTESTS AWARD TO ANY BIDDER WHO DID NOT SPECIFY THE PRODUCT OFFERED IN PARAGRAPH 23. THIS WOULD INCLUDE NOT ONLY PENNSYLVANIA REFINING COMPANY BUT ALSO BRAY OIL COMPANY WHO, WHILE NOT SHOWING THE IDENTITY OF THE PRODUCT OFFERED IN PARAGRAPH 23, SUPPLIED THE INFORMATION BY TELEGRAPHIC MODIFICATION OF ITS BID WHICH WAS DULY RECEIVED PRIOR TO BID OPENING. FURTHERMORE, AMERICAN OIL AND SUPPLY COMPANY PROTESTS AWARD TO ANY BIDDER WHO SUPPLIED OR WHOSE BID COULD BE CONSIDERED FOR MORE THAN ONE QUALIFIED PRODUCT PER ITEM. THIS INVOLVES BRAY OIL COMPANY WHO HAS NAMED IN ITS TELEGRAPHIC MODIFICATION TWO QUALIFIED PRODUCTS FOR ITEM K, AND PENNSYLVANIA REFINING COMPANY WHO HAS TWO QUALIFIED PRODUCTS FOR ITEM N.

THE FIRST QUESTION TO BE DECIDED IS THE RESPONSIVENESS OF THE BID SUBMITTED BY THE BRAY OIL COMPANY, SINCE IT FAILED TO SPECIFY THE QUALIFIED PRODUCT OR PRODUCTS OFFERED IN PARAGRAPH 23 OF THE BID FORM BUT SUPPLIED THE INFORMATION IN A TIMELY TELEGRAPHIC MODIFICATION OF ITS BID. THE CONTRACTING OFFICER REPORTS THAT WHILE IT WOULD BE DESIRABLE FROM AN ADMINISTRATIVE STANDPOINT TO HAVE THE PRODUCT IDENTIFIED IN THE SPACES PROVIDED IN THE BID FORM, ANY BID WHICH IDENTIFIED THE QUALIFIED PRODUCT OFFERED ELSEWHERE IN THE BID, IN AN ACCOMPANYING LETTER, OR BY A TIMELY MODIFICATION WOULD ENABLE EVALUATION OF THE BID AND THAT, THEREFORE, IT IS CONSIDERED THAT THE FAILURE OF A BIDDER TO IDENTIFY THE QUALIFIED PRODUCT BEING OFFERED IN THE SPECIFIC SPACES PROVIDED (PARAGRAPH 23) IS ONLY A MINOR INFORMALITY WHICH CAN BE WAIVED BY THE CONTRACTING OFFICER. CONSISTENTLY HAS BEEN HELD THAT ALL DOCUMENTS RECEIVED PRIOR TO THE BID OPENING CONSTITUTE A PART OF THE BID. 36 COMP. GEN. 535; 40 ID. 432. SINCE BRAY OIL COMPANY'S BID, AT THE TIME OF BID OPENING, CONTAINED THE IDENTITY OF QUALIFIED PRODUCTS OFFERED IT WAS IN STRICT COMPLIANCE WITH THE REQUIREMENTS OF THE INVITATION IN THIS RESPECT EVEN THOUGH INFORMATION WAS CONTAINED ELSEWHERE THAN IN PARAGRAPH 23.

THE SECOND QUESTION TO BE DECIDED IS WHETHER THE BID OF PENNSYLVANIA REFINING COMPANY WHICH DID NOT SPECIFICALLY IDENTIFY THE PRODUCT OR THE TEST NUMBER IN PARAGRAPH 23, BUT SHOWED IN SECTION V, MANUFACTURING AND FILLING POINTS, THAT IT PROPOSED TO FURNISH A PRODUCT IN ACCORDANCE WITH THE SPECIFIC MILITARY SPECIFICATION AND THAT THE MANUFACTURING AND FILLING POINT FOR THE PRODUCT OFFERED WAS THE PENNSYLVANIA REFINING COMPANY, KARNS CITY, PENNSYLVANIA. THE PARTICULAR SPECIFICATIONS REQUIRE QUALIFICATION AND PENNSYLVANIA REFINING COMPANY, KARNS CITY, PENNSYLVANIA, IS LISTED ON THE PARTICULAR QUALIFIED PRODUCTS LISTS FOR A PRODUCT, OR PRODUCTS, MEETING SUCH SPECIFICATIONS. IT IS RECOGNIZED THAT A BIDDER COULD OFFER A QUALIFIED PRODUCT OF ANOTHER COMPANY, HOWEVER, IN SUCH EVENT THE MANUFACTURING WOULD BE BY THE FIRM WHOSE PRODUCT HAD BEEN QUALIFIED WITH SUBSEQUENT PACKAGING (SHIPPING) ONLY BY THE BIDDER. IN THE INSTANT MATTER PENNSYLVANIA REFINING COMPANY STATED IN ITS BID THAT THEY WERE DOING THE MANUFACTURING AND, THEREFORE, THEIR BIDS COULD ONLY BE INTERPRETED AS OFFERING A QUALIFIED PRODUCT MANUFACTURED BY THEM. THE IDENTITY AND TEST NUMBER OF THE PARTICULAR PRODUCT, OR PRODUCTS, SO OFFERED READILY COULD BE DETERMINED BY THE GOVERNMENT BY REFERENCE TO THE PARTICULAR QUALIFIED PRODUCTS LIST. IN SUCH CIRCUMSTANCES WE AGREE WITH THE DETERMINATION OF THE CONTRACTING OFFICER THAT THE BIDS OF PENNSYLVANIA REFINING COMPANY HAVE IDENTIFIED SUFFICIENTLY THE QUALIFIED PRODUCTS OFFERED AND THAT THE BIDS SHOULD BE CONSIDERED FOR AWARD.

THE FINAL QUESTION TO BE DECIDED CONCERNS THE BIDS OF BRAY OIL COMPANY AND PENNSYLVANIA REFINING COMPANY WHICH OFFERED EITHER OF TWO QUALIFIED PRODUCTS AT THEIR OPTION FOR A PARTICULAR ITEM. AMERICAN OIL AND SUPPLY COMPANY URGES THAT ONLY ONE QUALIFIED PRODUCT CAN BE SPECIFIED, OTHERWISE THE BIDDER IS GIVEN AN UNFAIR COMPETITIVE ADVANTAGE. IN THIS CONNECTION, IT IS STATED THAT WHERE FOR A PARTICULAR ITEM A BIDDER HAS TWO QUALIFIED PRODUCTS AND TWO COMPETING RAW MATERIAL SUPPLIERS, THE BIDDER COULD, IF LOW, REOPEN NEGOTIATIONS WITH THE COMPETING RAW MATERIAL SUPPLIERS AND REALIZE GREATER PROFITS. PARAGRAPH 23 PROVIDES THAT AWARDS FOR ANY ITEMS WHICH ARE REQUIRED TO BE QUALIFIED PRODUCTS WILL BE MADE ONLY FOR ITEMS WHICH HAVE BEEN TESTED AND HAVE QUALIFIED FOR INCLUSION IN THE APPLICABLE QUALIFIED PRODUCTS LIST BEFORE THE TIME SET FOR OPENING OF THE BIDS. WHERE A BIDDER HAS TWO QUALIFIED PRODUCTS OF HIS OWN MANUFACTURE FOR A PARTICULAR ITEM REQUIRING A QUALIFIED PRODUCT OBVIOUSLY HE COULD OFFER EITHER OF HIS QUALIFIED PRODUCTS. IT WOULD BE INCONSISTENT TO HOLD THAT A BIDDER COULD OFFER EITHER OF TWO PRODUCTS BUT COULD NOT OFFER EITHER OR BOTH AT HIS OPTION, UNLESS SPECIFICALLY PROHIBITED AND WE DO NOT BELIEVE THAT THE CLAUSE CONTAINS ANY SUCH PROHIBITION. THE FACT THAT A BIDDER BY HAVING TWO QUALIFIED PRODUCTS MAY HAVE A COMPETITIVE ADVANTAGE OVER BIDDERS ONLY HAVING ONE IS OF NO CONCERN TO THE GOVERNMENT. SEE 40 COMP. GEN. 688.

FOR THE FOREGOING REASONS YOU ARE ADVISED THAT THE BIDS OF BRAY OIL COMPANY AND PENNSYLVANIA OIL COMPANY PROPERLY MAY BE CONSIDERED FOR AWARD UNDER THE THREE INVITATIONS.

COPIES OF THIS DECISION HAVE BEEN SENT TO BRAY OIL COMPANY, AMERICAN OIL AND SUPPLY COMPANY, ROYAL LUBRICANTS COMPANY, AND PENNSYLVANIA REFINING COMPANY.

THE PAPERS SUBMITTED WITH THE LETTER OF DECEMBER 14, 1965, WITH THE EXCEPTION OF THE STATEMENT OF FACTS BY THE CONTRACTING OFFICER, ARE RETURNED.

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