B-162438, OCT. 18, 1967

B-162438, OCT. 18, 1967

BIDS - TESTING REQUIREMENTS DECISION TO LEONARD MARINE INTERIORS RE PROTEST TO PREPRODUCTION TESTING IN SOLICITATION FOR MESS TABLES BY NAVY. SECOND LOW BIDDER WHO SUBMITTED ALTERNATE OFFER REQUESTING WAIVER OF FIRST ARTICLE APPROVAL CITING PREVIOUS CONTRACTS IS ADVISED THAT PROCUREMENT IS NOT IDENTICAL AND THAT DESIGN CHANGE IS OF SUFFICIENT IMPORTANCE SO THAT FIRST ARTICLE TESTING CANNOT BE WAIVED. SINCE REFUSAL OF WAIVER OF LISTING WAS NOT UNWARRANTED AND FAILURE TO CONSIDER PROTESTANT'S OFFER WAS NOT IMPROPER AWARD WILL NOT BE QUESTIONED.

TO LEONARD MARINE INTERIORS:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED SEPTEMBER 7, 1967, AND SUBSEQUENT LETTER OF OCTOBER 10, 1967, PROTESTING AGAINST THE METHOD OF EVALUATION OF PROPOSALS RECEIVED PURSUANT TO SOLICITATION N00104-67-B- 2533. IN PARTICULAR, YOU CONTEND THE CONTRACTING OFFICER SHOULD HAVE WAIVED THE REQUIREMENT FOR PREPRODUCTION TESTING AND EVALUATION, AND MADE AWARD TO YOUR COMPANY ON THE BASIS OF THAT WAIVER.

SOLICITATION N00104-67-B-2533 FOR 25 SHIPBOARD 4-MAN CREW MESS TABLES WAS ISSUED ON JULY 21, 1967, TO TWENTY-NINE PROSPECTIVE OFFERORS WITH OPENING SET FOR AUGUST 22, 1967. FIVE OFFERS WERE RECEIVED AND THE THREE LOW OFFERS WERE AS FOLLOWS:

COMPANY AMOUNT

TURNBULL ENTERPRISES, INC. $12,088.75

LEONARD MARINE INTERIORS 12,117.50

KWINN AND COMPANY, INC. 12,300.00 THE DISCOUNTS SPECIFIED BY THE OFFERORS WERE NOT FOR CONSIDERATION IN THAT THEY FAILED TO OFFER THE MINIMUM DISCOUNT PERIOD OF 30 DAYS SET FORTH IN THE SOLICITATION. THIS SOLICITATION CONTAINED CLAUSES FOR FIRST ARTICLE APPROVAL AND WAIVER OF THAT REQUIREMENT WHERE IDENTICAL OR SIMILAR MATERIAL HAD BEEN PREVIOUSLY TESTED, EVALUATED, AND APPROVED UNDER IDENTICAL OR SIMILAR SPECIFICATIONS. YOUR COMPANY SUBMITTED AN ALTERNATE OFFER OF $11,907.50 REQUESTING A WAIVER OF FIRST ARTICLE APPROVAL CITING PREVIOUS CONTRACTS UNDER WHICH SIMILAR 4 AND 6 MAN CREW MESS TABLES WERE DELIVERED.

WE HAVE BEEN ADVISED THAT THE MESS TABLES NOW UNDER PROCUREMENT ARE NOT IDENTICAL WITH THE TABLES PREVIOUSLY FURNISHED BUT ARE OF MODIFIED DESIGN FEATURING A NEW SLIDE ARRANGEMENT. FURTHER, THE RESPONSIBLE TECHNICAL PERSONNEL HAVE DETERMINED THIS DESIGN CHANGE IS OF SUFFICIENT IMPORTANCE THAT THE REQUIREMENT FOR FIRST ARTICLE TESTING CANNOT BE WAIVED. UNDER ASPR 1-1902 (2) (I) (B), A REQUIREMENT FOR FIRST ARTICLE APPROVAL TESTS MAY BE CONSIDERED APPROPRIATE WHEN THE PROCUREMENT ITEM HAS BEEN PREVIOUSLY FURNISHED BY THE CONTRACTOR TO THE GOVERNMENT BUT THERE HAVE BEEN SUBSEQUENT CHANGES IN PROCESSES OR SPECIFICATIONS. ACCORDINGLY, WE HAVE APPROVED THE REFUSAL OF A PROCURING AGENCY TO WAIVE FIRST ARTICLE APPROVAL WHERE SPECIFICATIONS HAVE BEEN CHANGED, AND THE TECHNICAL PERSONNEL DETERMINE SUCH FIRST ARTICLE TESTING APPROVAL NECESSARY TO GUARANTEE THAT THE EQUIPMENT PROCURED WILL PERFORM AS REQUIRED BY THE SPECIFICATIONS. B-159593, FEBRUARY 2, 1967, AND B-153175, JUNE 10, 1964.

IN VIEW OF THE FOREGOING, THIS OFFICE IS UNABLE TO CONCUR THAT THE REFUSAL OF THE CONTRACTING OFFICER TO WAIVE FIRST ARTICLE TESTING APPROVAL WAS UNWARRANTED, AND THAT FAILURE TO CONSIDER YOUR ALTERNATE OFFER WAS IMPROPER. FURTHER, IN THE PRESENT CIRCUMSTANCES, WE FIND NO BASIS TO QUESTION THE VALIDITY OF AN AWARD TO BE MADE TO THE LOW RESPONSIBLE OFFEROR ON THE BASIS OF FIRST ARTICLE APPROVAL, AND, THEREFORE, WE MUST DENY YOUR PROTEST.

YOUR PROTEST CONCERNING INVITATIONS NOS. N00104-67-B-2532 AND N00104-67-B -2414 IS UNDER DEVELOPMENT AND WILL BE HANDLED AS A SEPARATE CASE.