B-178914, NOV 9, 1973

B-178914, NOV 9, 1973

PROTEST THAT TRACEABILITY REQUIREMENT FOR CRITICAL AIRCRAFT PARTS IS NOT NECESSARY BECAUSE PARTS MANUFACTURED IN ACCORDANCE WITH MILITARY SPECIFICATION SHOULD HAVE BEEN FILED PRIOR TO BID OPENING IF ATTEMPT TO RESOLVE MATTER WITH AGENCY UNSUCCESSFUL SEE 4 CFR 20.2(A). PROTEST DENIED WHERE BIDDER TOOK EXCEPTION TO SPECIFICATION REQUIREMENT ON BASIS REQUIREMENT SHOULD BE WAIVED WITH RESPECT TO IT, AS DELIBERATE DEVIATION FROM ADVERTISED REQUIREMENTS MAY NOT BE CONSIDERED TRIVIAL OR MINIMAL SO AS TO JUSTIFY WAIVER AS A MINOR IRREGULARITY. SEE CASES CITED.

TO ROLLER BEARING COMPANY OF AMERICA:

WE REFER TO YOUR LETTERS OF JUNE 14 AND 29, 1973, PROTESTING THE REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS (IFB) NO. DAAJ01-73 B- 0177 (PIA), ISSUED MARCH 2, 1973, BY THE UNITED STATES ARMY AVIATION SYSTEMS COMMAND (USAAVSCOM), ST. LOUIS, MISSOURI.

THE SUBJECT IFB CALLED FOR 562 ROLLER BEARINGS, AND CONTAINED A SPECIFICATION REQUIRING THE MANUFACTURER TO MAINTAIN CERTAIN RECORDS WHICH WOULD ESTABLISH COMPLETE TRACEABILITY FOR ALL PARTS DELIVERED UNDER THE CONTRACT. UPON THE OPENING OF BIDS ON APRIL 2, 1973, YOUR BID WAS DETERMINED LOW. HOWEVER, IT WAS ACCOMPANIED BY A LETTER FROM YOUR ASSISTANT SALES MANAGER STATING, INTER ALIA, THAT THE BEARINGS YOU PROPOSED TO SUPPLY HAD BEEN "PUT THROUGH MOST OF THE MANUFACTURING OPERATIONS REQUIRED TO COMPLETE THEM AND RBC WILL MEET THE TRACEABILITY SPECIFICATION ON ALL REMAINING OPERATIONS."

THE CONTRACTING OFFICER DETERMINED THAT THE FOREGOING LANGUAGE CREATED AN AMBIGUITY AS TO WHETHER THE TRACEABILITY SPECIFICATIONS OF THE IFB WOULD BE MET. THEREFORE, HE REQUESTED A PREAWARD SURVEY, AND IN A REPORT DATED MAY 23, 1973, THE SURVEY TEAM RECOMMENDED THAT AN AWARD NOT BE MADE TO YOUR FIRM BASED UPON FINDINGS THAT THE PARTS TO BE USED FOR THIS PROCUREMENT WERE IN STOCK IN VARIOUS DEGREES OF COMPLETION, WITH THE EXCEPTION OF THE BEARINGS WHICH WOULD BE MANUFACTURED FROM RAW MATERIAL, AND THAT AS TO THE PARTS ALREADY IN STOCK THE TRACEABILITY REQUIREMENTS IMPOSED BY THE IFB COULD NOT BE SATISFIED. ACCORDINGLY, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID WAS NONRESPONSIVE. A CONTRACT WAS AWARDED TO THE TORRINGTON COMPANY ON JUNE 1, 1973, AND YOU WERE NOTIFIED BY LETTER OF THE SAME DATE OF THE REJECTION OF YOUR BID AND THE REASONS THEREFOR.

WHILE YOU CONCEDE THAT THE BEARINGS ALREADY IN STOCK, AND INTENDED TO BE SUBMITTED IN PERFORMANCE OF THE PROSPECTIVE AWARD, DO NOT COMPLY WITH THE TRACEABILITY REQUIREMENT SET FORTH IN THE SPECIFICATIONS, YOU CONTEND THAT THESE BEARINGS WERE MANUFACTURED IN ACCORDANCE WITH A MILITARY SPECIFICATION AND HAVE BEEN DETERMINED ACCEPTABLE BY THE NAVY FOR THE CH46 HELICOPTER AND, THEREFORE, THEY SHOULD BE CONSIDERED ACCEPTABLE FOR THE SUBJECT PROCUREMENT AND THE TRACEABILITY REQUIREMENT WAIVED.

IT IS CLEAR, AS YOU HAVE ADMITTED, THAT YOUR BID INCLUDED AN EXCEPTION TO THE TRACEABILITY REQUIREMENT. ALTHOUGH YOU CONTEND THAT THE REQUIREMENT SHOULD BE WAIVED WITH RESPECT TO RBC, IT IS WELL SETTLED THAT A DELIBERATE DEVIATION FROM THE ADVERTISED REQUIREMENTS MAY NOT BE CONSIDERED TRIVIAL OR MINIMAL SO AS TO JUSTIFY WAIVER AS A MINOR IRREGULARITY. 49 COMP. GEN. 211, 214 (1969); 47 COMP. GEN. 496, 500 (1968). OTHERWISE, THE CONTRACT AWARDED TO THAT BIDDER WOULD NOT BE THE SAME CONTRACT OFFERED TO OTHER BIDDERS, CONTRARY TO A RECOGNIZED RULE OF COMPETITIVE BIDDING. 49 COMP. GEN. 211, SUPRA.

INSOFAR AS YOUR PROTEST QUESTIONS THE NECESSITY FOR THE TRACEABILITY REQUIREMENT, IT IS WELL ESTABLISHED THAT THE DRAFTING OF SPECIFICATIONS ADEQUATE TO MEET THE MINIMUM NEEDS OF THE GOVERNMENT IS THE PREROGATIVE OF THE PROCURING AGENCY AND NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE UNLESS CLEARLY ARBITRARY. 49 COMP. GEN. 156, 160 (1969). WITH REGARD TO THE TRACEABILITY REQUIREMENT AND YOUR POSITION THAT BEARINGS MANUFACTURED IN ACCORDANCE WITH MIL-Q-9858A SHOULD BE ACCEPTABLE, WE HAVE BEEN FURNISHED THE FOLLOWING INFORMATION:

"1. AS FAR BACK AS 1970, WHEN AVSCOM ASSEMBLED A CRITICAL PARTS REVIEW TEAM TO INVESTIGATE QUALITY ASSURANCE PROGRAMS OF SEVERAL MANUFACTURERS, AT AMCS INSISTENCE, THE NEED FOR HEAT TRACEABILITY PROVISIONS IN THE PROCUREMENT OF CRITICAL AIRCRAFT PARTS WAS RECOGNIZED. RBC WAS ONE OF THE MANUFACTURERS VISITED BY THAT TEAM. HEAT TRACEABILITY IS A RECORD KEEPING PROCEDURE BY THE MANUFACTURER BY WHICH THE SERIAL NUMBER OR OTHER HARDWARE MARKING IS CROSS REFERENCED TO A CONTROL NUMBER LIST IDENTIFYING ALL PARTS PROCESSED IN THE SAME HEAT TREAT LOT. HAVING THE KNOWLEDGE OF THE SERIAL NUMBERS OF ALL SUSPECTED DEFECTIVE PARTS, TBS CAN BE ISSUED WHICH MINIMIZE THE NUMBER OF AIRCRAFT WHICH MUST BE GROUNDED FOR REMOVAL AND REPLACEMENT OF PARTS.

PREVIOUSLY, SERIAL NUMBERS COULD ONLY BE TRACED AS FAR AS DELIVERY ORDERS WHICH OCCASIONALLY INVOLVE MUCH LARGER QUANTITIES OF SUSPECTED PARTS AND RESULT IN GROUNDING OF AN ENTIRE FLEET. P/N 114RS214-3, -4, 5, AND -6 BEARINGS ARE CRITICAL AIRCRAFT PARTS PROCURED UNDER A 'CONTROLLED' SOURCE PACKAGE (IT IS NOT OUR PRACTICE TO CAUSE THE 'CRITICAL AIRCRAFT PART' TO BE APPLIED TO THESE PACKAGES).

"2. THEORETICALLY, A MIL-Q-9858A CONTRACTUAL REQUIREMENT WITH A PRIME CONTRACTOR SUCH AS BOEING VERTOL SHOULD PROVIDE SUFFICIENT ASSURANCE THAT THE HEAT TRACEABILITY CONTROL FEATURE FOR CRITICAL AIRCRAFT PARTS WILL BE INVOKED. THIS IS TRUE BECAUSE THE DETAILED QUALITY PROGRAM PLAN IS SUBJECTED TO AVSCOM'S APPROVAL AND THE SECOND LAST SENTENCE OF SECTION 1.3 AND THE SECOND PARAGRAPH OF SECTION 6.1 OF MIL-Q-9858A PLACE THE RESPONSIBILITY FOR SUBCONTRACTED PARTS AND ITEMS ON THE PRIME CONTRACTOR. FROM SECTION 6.1, WE READ: 'SUPPLIERS SHALL BE REQUIRED BY THE CONTRACTOR'S QUALITY PROGRAM TO EXERCISE EQUIVALENT CONTROL OF THE RAW MATERIALS UTILIZED IN THE PRODUCTION OF THE PARTS AND ITEMS WHICH THEY SUPPLY TO THE CONTRACTOR.' WE HAVE NO ARGUMENT, THEREFORE, WITH MIL-Q- 9858A OR EVEN VERTOL'S ASSUMPTION OF THIS RESPONSIBILITY. VERTOL, IN THEIR MEETING AT AVSCOM IN AUGUST 1971, AS A RESULT OF A TORRINGTON PROTEST ON AWARD OF A CONTRACT TO RBC FOR THIS SAME BEARING, STATED THAT IT IS AND HAS BEEN THEIR POLICY TO REQUIRE HEAT TRACEABILITY ON ALL CRITICAL PARTS, WHETHER OR NOT THEY MAKE IT A PART OF DRAWING REQUIREMENTS. RBC, HOWEVER, HAS CONSISTENTLY REFUSED ENTRY OF VERTOL REPRESENTATIVES TO THEIR PLANT WHICH MAKES SURVEILLANCE OF INSPECTION SYSTEMS IMPOSSIBLE BY THEM.

"3. IT WAS A RESULT OF TORRINGTON'S PROTEST CONCERNING HEAT TRACEABILITY AS PART OF THEIR QUALIFICATION REQUIREMENTS AND IN NO WAY REQUIRED OF RBC, THAT WE DISCOVERED THAT RBC CAUSED THE MIL-Q-9858A PROVISION CITED IN THE PRECEDING PARAGRAPH TO BE INOPERATIVE AND IT WAS NECESSARY TO ADD QUALITY ASSURANCE PROVISIONS TO PROCUREMENT PACKAGE 114RS214 (JULY 27, 1971). OCTOBER 1971, VERTOL FINALLY REVISED DRAWING 114RS214 TO ADD THE HEAT TRACEABILITY REQUIREMENTS OF THEIR DOCUMENTS D8-0965 AND D8-4980.79. AFTER CONSIDERABLE DISPUTE WITH TORRINGTON AS TO THE WORDING OF OUR QUALITY ASSURANCE PROVISIONS AND SEVERAL REVISIONS TO OUR PROCUREMENT PACKAGE, AGREEMENT WITH TORRINGTON WAS FINALLY REACHED AND THEIR PROTEST CEASED.

"4. SINCE AUGUST 1971, AVSCOM HAS RECEIVED EIRS RELATING TO THE SUBJECT RBC MANUFACTURED BEARINGS WHICH WOULD NOT ROTATE WHEN INSTALLED IN PITCH CHANGE HOUSINGS. TEST FIXTURES WERE INDEPENDENTLY DEVELOPED BY VERTOL AND RBC TO SIMULATE INSTALLED CONDITIONS BUT THESE PRE INSTALLATION TESTS WERE INEFFECTIVE IN DECIDING WHICH BEARINGS WOULD BIND UPON INSTALLATION. OVERSIZE OR OUT OF TOLERANCE PARTS WERE SUSPECTED BUT THIS WAS NOT PROVEN."

IT IS OUR VIEW THAT THE FOREGOING REASONABLY ESTABLISHES THE NECESSITY FOR THE REQUIREMENT IN THE SUBJECT PROCUREMENT. FURTHERMORE, IT SHOULD BE NOTED THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING SHOULD BE FILED WITH OUR OFFICE PRIOR TO BID OPENING AND AFTER INITIALLY ATTEMPTING TO RESOLVE THE MATTER WITH THE CONTRACTING AGENCY. 4 CFR 20.2(A).

FINALLY, SINCE YOU HAVE FURNISHED NO EVIDENCE TO SUPPORT THE CHARGE THAT TORRINGTON'S BEARINGS DO NOT MEET THE SPECIFICATIONS, THERE IS NO BASIS TO SUSTAIN THIS ASPECT OF YOUR PROTEST.

ACCORDINGLY, YOUR PROTEST IS DENIED.