B-145256, MAY 10, 1961

B-145256, MAY 10, 1961

TO LEWIS AND MACDONALD:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1961, WITH ENCLOSURES, PROTESTING ON BEHALF OF YOUR CLIENT, GENERAL ELECTRONICS, INCORPORATED, AGAINST THE REJECTION OF ITS BID ON ITEM NO. 314, UNDER INVITATION FOR BIDS NO. 115-3-70, ISSUED BY THE FEDERAL AVIATION AGENCY, AERONAUTICAL CENTER, OKLAHOMA CITY, OKLAHOMA. THE SEVERAL POINTS RAISED IN SUPPORT OF YOUR CONTENTION THAT THE PROPOSAL OF YOUR CLIENT, AS LOW BIDDER ON THAT ITEM, SHOULD HAVE BEEN ACCEPTED WILL BE CONSIDERED INDIVIDUALLY AS PRESENTED IN YOUR LETTER OF FEBRUARY 7, 1961, TO THE ADMINISTRATIVE AGENCY.

THE SUBJECT INVITATION SOUGHT BIDS ON SEVERAL TYPES OF ELECTRON TUBES MEETING MILITARY OR COMMERCIAL SPECIFICATIONS, OR BOTH. PARAGRAPH VI OF THE TERMS AND CONDITIONS PERTINENT TO THIS INVITATION PROVIDED THAT--- "BIDS OFFERING TO FURNISH TUBES CONFORMING TO COMMERCIAL SPECIFICATIONS WILL BE CONSIDERED FOR AWARD ONLY IF NO BID IS RECEIVED OFFERING A TUBE CONFORMING TO MILITARY SPECIFICATIONS AND CURRENTLY ON THE MILITARY SPECIFICATION QUALIFIED PRODUCTS LIST FOR THE TYPE OFFERED.'

WITH RESPECT TO YOUR PROTEST AGAINST THE INCLUSION IN THE INVITATION OF THE QUOTED PROVISIONS AFFORDING PREFERENTIAL CONSIDERATION TO THOSE BIDDERS WHOSE PRODUCTS HAVE BEEN TESTED AND QUALIFIED BY A DESIGNATED AGENCY, YOUR ATTENTION IS INVITED TO OUR DECISION OF JUNE 13, 1957, 26 COMP. GEN. 809. IN THAT CASE WE FOUND THE QUALIFIED PRODUCTS METHOD OF PROCUREMENT TO BE LEGAL, AND THE UTILIZATION OF SUCH SYSTEM IN ANY PARTICULAR PROCUREMENT TO BE DISCRETIONARY WITH THE INDIVIDUAL AGENCIES. THE PREDETERMINED EXERCISE OF SUCH VESTED AUTHORITY IN THIS PROCUREMENT, WHICH INVOLVED 588 DIFFERENT ITEMS, CLEARLY IS NOT SUBJECT TO QUESTION MERELY BECAUSE ONLY ONE MANUFACTURER OF A SINGLE ITEM LISTED IN THE INVITATION HAD ITS PRODUCT QUALIFIED. WHILE THE ELEMENT OF RESTRICTION THROUGH THE USE OF THE QUOTED PROVISION UNDER THE ATTENDANT CIRCUMSTANCES IS RECOGNIZED, WE DO NOT FEEL THAT THERE IS INVOLVED ANY VIOLATION OF THE PROCUREMENT STATUTES OR APPLICABLE REGULATIONS, NOR DOES IT APPEAR FEASIBLE TO US THAT ITEM NO. 314 SHOULD HAVE BEEN OMITTED FROM THE INVITATION AND, AS YOU SUGGEST, BE MADE THE SUBJECT OF AN INDIVIDUAL UNDERTAKING TO BE PURCHASED BY NEGOTIATION AS A SOLE SOURCE OF SUPPLY.

THE RECORD FURTHER DISCLOSES THAT THIS WAS NOT AN INITIAL PROCUREMENT OF THE ARTICLE; THAT YOUR CLIENT WAS SOLICITED WHEN THE PREVIOUS PURCHASES WERE MADE; AND THE INDUSTRY, GENERALLY, WAS AWARE OF THE FACT THAT THIS PARTICULAR TUBE WAS TO BE INCLUDED IN THE QUALIFIED PRODUCTS LIST. IT IS SIGNIFICANT THAT YOUR CLIENT MADE NO EFFORT TO HAVE ITS PRODUCT QUALIFIED, AND NO REASON THEREFOR IS OFFERED, EVEN THOUGH IT IS ASSERTED THAT THE COMPANY WAS CONFIDENT THAT ITS PRODUCTION TUBE MET THE STANDARDIZED SPECIFICATIONS.

A FURTHER CONTENTION IS THAT YOUR CLIENT IS A SMALL BUSINESS FIRM LOCATED IN A LABOR SURPLUS AREA, AND FAILURE TO AWARD A CONTRACT FOR ITEM NO. 314, IN ADDITION TO THOSE ITEMS HERETOFORE AWARDED TO IT CONTRAVENES ESTABLISHED GOVERNMENT POLICY. THE PROVISIONS OF THE STATUTES AND IMPLEMENTING REGULATIONS WHICH WERE DESIGNED TO AFFORD ASSISTANCE TO SMALL BUSINESS ENTERPRISES OR FIRMS IN DISTRESSED LABOR AREAS, IN CONNECTION WITH THE ADVERTISING OF PUBLIC CONTRACTS, DO NOT APPEAR APPLICABLE TO THE PRESENT CASE, SINCE YOUR CLIENT'S BID WAS NOT RESPONSIVE AS TO THE ITEM IN QUESTION.

FINALLY YOU CONTEND THAT THIS WAS NOT AN URGENT PROCUREMENT, BUT THAT NOTWITHSTANDING THAT FACT YOUR CLIENT WAS NOT AFFORDED A REASONABLE TIME TO OBTAIN APPROVED QUALIFICATION FOR ITS PRODUCT. THERE IS NOTHING IN THE RECORD TO INDICATE THAT IT WAS OTHER THAN A PURCHASE OF STOCK ITEMS AND WE AGREE THEREFORE THAT TIME WAS NOT A MATERIAL FACTOR IN THE TRANSACTION. HOWEVER, YOUR LETTER OF FEBRUARY 9, 1961, CITES OUR DECISION OF DECEMBER 9, 1960, B-143792, IN SUPPORT OF YOUR CONTENTION THAT YOUR CLIENT WAS DISCRIMINATED AGAINST IN THIS AWARD, AND THAT APPLICABLE REGULATIONS WERE DISREGARDED. IT IS NOTED THAT THE QUOTATION IN YOUR LETTER WHICH PURPORTS TO BE FROM THE CITED DECISION IS NOT AN ACCURATE QUOTATION. IN THAT CASE THE PROCURING AGENCY FAILED TO TIMELY NOTIFY THE CONTRACTOR CURRENTLY SUPPLYING THE ARTICLES THERE INVOLVED THAT THE SPECIFICATIONS RECENTLY HAD BEEN AMENDED TO INCLUDE THE ITEM ON A QUALIFIED PRODUCTS LIST. AS A RESULT THE GOVERNMENT WAS DEPRIVED OF THE COMPETITION AFFORDED BY THE EXISTING SUPPLIER. IN THIS CASE WE ARE INFORMED THAT THE LAST REVISION OF SPECIFICATIONS MIL-E-1/876 OCCURRED IN JANUARY 1958, AND THAT THIS WAS NOT AN INITIAL INVITATION FOR BIDS FOR THIS TUBE AS A QUALIFIED PRODUCT. THEREFORE, OUR CONCLUSION IN THE DECISION OF DECEMBER 9, 1960, IS NOT FOR APPLICATION IN THIS CASE.

ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN IN THIS PROCUREMENT.