B-156311, MAY 24, 1965

B-156311, MAY 24, 1965

TO GLOBE INDUSTRIES, INC.:

YOUR LETTER OF MARCH 10, 1965, PROTESTS THE DENIAL BY THE DEPARTMENT OF THE NAVY OF YOUR REQUEST FOR POSTPONEMENT OF BID OPENING UNDER INVITATION FOR BIDS (IFB) NO. 383-773-65 TO PERMIT YOU TO QUALIFY AN ITEM YOU PROPOSED TO OFFER UNDER THE IFB.

THE IFB, ISSUED ON JANUARY 15, 1965, BY THE UNITED STATES NAVY AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, SOLICITED BIDS TO FURNISH 1,012 TACHOMETER GENERATORS FOR P-2E AIRCRAFT, TO BE DELIVERED IN STATED QUANTITIES TO SEVERAL DESTINATIONS, WITHIN 180 DAYS AFTER AWARD OF CONTRACT. AN ADDITIONAL QUANTITY OF 1,011 GENERATORS WAS SET ASIDE FOR AWARD TO SMALL BUSINESS.

THE IFB PROVIDED THAT THE GENERATORS WERE TO BE MANUFACTURED IN ACCORDANCE WITH MILITARY STANDARD DRAWING MS 25038-1, REVISION B, DATED NOVEMBER 20, 1960, AND MILITARY SPECIFICATION MIL-G-5413B, AMENDMENT 1, DATED SEPTEMBER 4, 1962 (ALSO CITED AS MIL-G-5413B (ASG)BY THE NAVY). ADDITION, BIDDERS WERE ADVISED THAT AWARD WOULD BE MADE ONLY FOR PRODUCTS WHICH, PRIOR TO THE TIME FIXED FOR BID OPENING, HAD BEEN TESTED AND QUALIFIED FOR INCLUSION IN THE QUALIFIED PRODUCTS LIST (QPL). THE QPL FOR THE ITEM IS 5413-14, DATED AUGUST 17, 1964.

BID OPENING WAS ORIGINALLY SCHEDULED FOR FEBRUARY 15, BUT WAS EXTENDED TO MARCH 3 BY IFB AMENDMENT DATED FEBRUARY 11. ON MARCH 2, YOU REQUESTED THE PROCURING ACTIVITY TO POSTPONE BID OPENING FOR AN ADDITIONAL 15 TO 30 DAYS TO ENABLE YOU TO QUALIFY YOUR PART NUMBER 22A550. HOWEVER, SINCE TESTING OF YOUR SAMPLES COULD NOT BE COMPLETED UNTIL MAY 1965 AND SINCE THERE WAS AN URGENT REQUIREMENT FOR THE GENERATORS, YOUR REQUEST WAS DENIED. ACCORDINGLY, YOUR LOW BID OFFERING YOUR PART NUMBER 22A550 WAS CONSIDERED NONRESPONSIVE FOR FAILURE TO MEET THE QUALIFYING REQUIREMENT.

BY REPORT DATED MAY 4, WE WERE ADVISED BY THE DEPARTMENT OF THE NAVY THAT AN IMMEDIATE AWARD OF THE NON-SET-ASIDE PORTION OF THE PROCUREMENT HAD BEEN AUTHORIZED PURSUANT TO A DETERMINATION BY THE CONTRACTING OFFICER ON APRIL 27 THAT SUCH ACTION WAS NECESSARY TO ALLEVIATE THE CRITICAL STOCK STATUS OF THE GENERATORS. THE FINDINGS OF THE CONTRACTING OFFICER SUPPORTING HIS DETERMINATION READ, IN PART, AS FOLLOWS:

"2. FACTS AND CIRCUMSTANCES CONCERNING THE STOCK POSITION OF ASO ARE AS FOLLOWS:

"A. THE STOCK POSITION OF ASO FOR THE TACHOMETER GENERATORS IS ZERO.

"B. CURRENT USAGE IS 154 EACH PER MONTH. THE ONLY SOURCE OF SUPPLY SUPPORT IS FROM THE SUBJECT IFB.

"C.ASO PRESENTLY IS HOLDING REQUISITIONS FOR 71 EACH UNITS TO FURTHERMORE, THE ZERO STOCK STATUS OF THE MATERIAL MAKES THE LIKELIHOOD OF INCREASED DEMANDS FOR MATERIAL ON A PRIORITY BASIS A STRONG POSSIBILITY.

"D. TACHOMETER GENERATORS ARE USED ON C-121, P2D AND P2E AIRCRAFT. ANY DELAY IN AWARD OF A CONTRACT UNDER THE IFB WILL PLACE THE OPERATIONAL CAPABILITIES OF THESE AIRCRAFT IN JEOPARDY.'

AS TO THE SET-ASIDE PORTION OF THE PROCUREMENT, THE CONTRACTING OFFICER STATES THAT SHOULD THE ITEM WHICH YOU HAVE SUBMITTED FOR TESTING BE APPROVED FOR INCLUSION ON THE QPL, CONSIDERATION WILL BE GIVEN TO CANCELLING THE SET-ASIDE AND READVERTISING FOR SUCH QUANTITY IN THE INTEREST OF REALIZING A POSSIBLE SAVINGS TO THE GOVERNMENT.

IT IS YOUR POSITION THAT THE NAVY'S ACTION DENYING YOUR REQUEST FOR POSTPONEMENT OF BID OPENING WAS ARBITRARY. YOU STATE THAT YOU ARE CURRENTLY SUPPLYING TO THE AIR FORCE A TACHOMETER GENERATOR CONSTRUCTED IN ACCORDANCE WITH MILITARY STANDARD DRAWING MS25038-1, REVISION B, AND MILITARY SPECIFICATION MIL-G-5413, WHICH HAS BEEN QUALIFIED, AS EVIDENCED BY A TEST REPORT SUBMITTED TO NAVY WITH YOUR BID, AND THAT THE AIR FORCE HAS APPROVED THE ITEM. YOU CONTEND THAT SINCE THE SAME DRAWING IS USED FOR BOTH AIR FORCE AND NAVY UNDER MILITARY SPECIFICATIONS, ANY ITEM QUALIFIED BY THE AIR FORCE, WHICH USES A FIRST ARTICLE TESTING OR PREPRODUCTION TESTING PROCEDURE, SHOULD AUTOMATICALLY QUALIFY FOR INCLUSION ON A QPL, THE DIFFERENCE IN THE PROCEDURES EMPLOYED BY THE AGENCIES BEING A MERE FORMALITY. YOU FURTHER CONTEND, HOWEVER, THAT THE QPL CANNOT BE EMPLOYED AS A MANDATORY REQUIREMENT IN THE NAVY PROCUREMENT BECAUSE NONE OF THE ITEMS ON THE QPL IS SHOWN TO HAVE BEEN RETESTED AFTER THE ISSUANCE OF A REVISION B TO MIL-G-5413 ON SEPTEMBER 4, 1952.

THE RECORD SHOWS THAT THE MILITARY SPECIFICATION MIL-G-005413C (USAF) UNDER WHICH YOU ARE MANUFACTURING THE TACHOMETER GENERATOR FOR THE AIR FORCE, WAS ISSUED AS A LIMITED COORDINATED SPECIFICATIONS FOR AIR FORCE PROCUREMENT AND NOT AS A REVISION TO MILITARY SPECIFICATION MIL-G-5413B (ASG). A REVISED COORDINATED SPECIFICATION, WHICH WILL SUPERSEDE BOTH MIL -G-5413B (ASG) AND MIL-G-005413C (USAF), IS CURRENTLY UNDER PREPARATION AND IS EXPECTED TO BE COMPLETED BY DECEMBER 31, 1965. HOWEVER, PENDING ISSUANCE OF SUCH REVISED SPECIFICATION, MIL-G-5413B IS THE COORDINATED SPECIFICATION THAT IS TECHNICALLY ACCEPTABLE TO THE BUREAU OF NAVAL WEAPONS FOR THE ITEM IN QUESTION AND THEREFORE IS THE GOVERNING SPECIFICATION FOR THE NAVY PROCUREMENT.

REGARDING THE MATTER OF ACCEPTANCE BY THE NAVY OF THE TEST REPORTS SUBMITTED BY YOU AS EVIDENCE OF QUALIFICATION OF YOUR GENERATOR, THE CONTRACTING OFFICER STATES:

"7. MIL SPEC MIL-G-005413C (USAF) CHANGED VIBRATION REQUIREMENTS, ADDED A TEST FOR HARMONIC CONTENT, AND SUBSTITUTED PREPRODUCTION FOR QUALIFICATION REQUIREMENTS. AT THE TIME OF THEIR REQUEST FOR AN EXTENSION OF THE BID OPENING DATE, GLOBE SUBMITTED TEST DATA COVERING THE PERFORMANCE OF TESTS BY GLOBE ON THE PREPRODUCTION SAMPLE MANUFACTURED TO THE "C" REVISION OF THE SPECIFICATION. SINCE THE TESTS WERE PERFORMED BY GLOBE AT THEIR PLANT WITH NO EVIDENCE THAT THE TESTS WERE WITNESSED BY THE GOVERNMENT INSPECTOR TO ASSURE COMPLIANCE WITH REQUIRED TEST PROCEDURES IT WAS DETERMINED BY THE QUALIFYING ACTIVITY THAT QUALIFICATION TESTS PERFORMED AT THE GOVERNMENT LABORATORY WOULD BE REQUIRED. SINCE THE RUNNING OF THE TESTS AND THE PREPARATION OF A TEST REPORT WOULD CONSUME SOME TWO TO THREE MONTHS OF TIME, IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT AN EXTENSION OF BID OPENING DATE FOR SUCH PERIOD OF TIME COULD NOT BE GRANTED. TEST SAMPLES WERE IN FACT SUBMITTED BY GLOBE AND ARE NOW UNDERGOING TEST. IT IS CONTEMPLATED THAT THE TESTING AND EVALUATION WILL BE COMPLETED BY 3 MAY 1965.'

CONCERNING THE MATTER OF QUALIFICATION UNDER MIL-G-5413B OF THE ITEMS ON THE CURRENT QPL, THE CONTRACTING OFFICER REPORTS:

"8. ALL SUPPLIERS CURRENTLY LISTED ON QPL-5413-14 WERE INITIALLY QUALIFIED TO MIL-G-5413A (ASG) OF 26 JUNE 1953. SINCE THE MIL-G-5413B REVISION WAS ESSENTIALLY A CHANGE IN FORMAT OF SECTION 4, QUALITY ASSURANCE PROVISIONS, FROM THE MIL-G-5413A REVISION, THIS DID NOT AFFECT THE CHARACTER OF THE PRODUCT SO AS TO REQUIRE REQUALIFICATION. ACCORDINGLY, ALL PRODUCTS QUALIFIED TO MIL-G-5413A WERE CONSIDERED QUALIFIED TO MIL-G-5413B BY THE QUALIFYING ACTIVITY.'

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-1107 (A) PROVIDES THAT WHENEVER QUALIFIED PRODUCTS ARE TO BE PROCURED BY THE GOVERNMENT, ONLY BIDS OR PROPOSALS OFFERING PRODUCTS WHICH HAVE BEEN QUALIFIED PRIOR TO THE OPENING OF BIDS OR AWARD OF NEGOTIATED CONTRACTS SHALL BE CONSIDERED IN MAKING AWARDS. ASPR 1-1107.2 (A) PROVIDES FOR THE USE OF APPROPRIATE LANGUAGE IN THE PROCUREMENT SOLICITATION TO GIVE EFFECT TO ASPR 1-1107 (A).

RESPECTING THE TIME TO BE ALLOWED FOR SUBMISSION OF BIDS OR OFFERS IN QUALIFIED PRODUCTS PROCUREMENTS, ASPR 1-1107.1 (C) (2) READS, IN PART, AS FOLLOWS:

"/2) THE MAXIMUM TIME CONSISTENT WITH DELIVERY REQUIREMENTS SHALL BE ALLOWED BETWEEN ISSUANCE OF THE SOLICITATION AND THE OPENING OF BIDS OR THE AWARD OF A NEGOTIATED CONTRACT. AS A MINIMUM, HOWEVER, CONTRACTING OFFICERS SHALL ALLOW 30 CALENDAR DAYS BETWEEN THE DATES OF ISSUANCE AND OPENING (AWARD, IN THE CASE OF NEGOTIATED CONTRACTS), PROVIDED THAT PERIODS OF LESS THAN 30 DAYS MAY BE SET IN CASES OF URGENCY WHEN THE JUSTIFICATION FOR A SHORTER PERIOD IS SET FORTH IN WRITING AND MADE A PART OF THE PROCUREMENT FILE.'

SINCE NAVY'S NEED WAS FOR AN ITEM ON THE QPL, THE RESTRICTION OF AWARD TO PRODUCTS QUALIFIED UNDER THE QPL PROCEDURE BEFORE BID OPENING WAS PROPER UNDER ASPR 1-1107 (A). FURTHERMORE, THE ALLOWANCE OF 31 DAYS FOR SUBMISSION OF BIDS UNDER THE ORIGINAL IFB, AS WELL AS AN ADDITIONAL 16 DAYS UNDER THE AMENDMENT OF FEBRUARY 11, WAS IN FULL COMPLIANCE WITH THE PROVISIONS OF ASPR 1-1107.1 (2).

ON THE BASIS OF THE FACTS STATED, IT IS APPARENT THAT THE PRODUCTS ON THE CURRENT QPL HAVE BEEN QUALIFIED TO MILITARY SPECIFICATION MIL-G 5413B (ASG); THAT SUCH SPECIFICATION GOVERNS CURRENT NAVY PROCUREMENTS OF THE ITEM IN QUESTION; AND THAT YOUR ITEM, ALTHOUGH MANUFACTURED UNDER THE SAME DRAWING, WAS NOT SHOWN, AS OF THE EXTENDED DATE OF BID OPENING, TO BE QUALIFIED IN ACCORDANCE WITH REQUIREMENTS OF THE QPL PROCEDURE UNDER THE APPLICABLE SPECIFICATION. ACCORDINGLY, AND IN VIEW OF THE INFORMATION REFLECTED IN THE CONTRACTING OFFICER'S STATEMENT OF APRIL 27 CONCERNING THE URGENCY RESULTING FROM THE EXHAUSTION OF THE NAVY STOCK AND THE RATE OF USE OF THE ITEM, WE MUST CONCLUDE THAT THERE WAS AMPLE JUSTIFICATION FOR THE NAVY'S REFUSAL TO EXTEND THE TIME OF BID OPENING IN ACCORDANCE WITH YOUR REQUEST, AND THAT SUCH ACTION THEREFORE WAS NOT ARBITRARY. FOR THE SAME REASONS, WE FIND NO LEGAL BASIS TO QUESTION THE PROPRIETY OF THE AWARD PRIOR TO OUR DECISION ON YOUR PROTEST.

IN ADDITION TO THE FOREGOING, THE STATEMENT OF THE CONTRACTING OFFICER REGARDING THE POSSIBLE CANCELLATION OF THE SET-ASIDE AND ADVERTISEMENT OF THAT PORTION OF THE PROCUREMENT, IN THE EVENT THE ITEM YOU SUBMITTED FOR TESTING QUALIFIES UNDER THE APPLICABLE SPECIFICATION, FURNISHES SOME INDICATION THAT NAVY HAS NOT ARBITRARILY PRECLUDED YOU FROM PARTICIPATING IN PROCUREMENT OF THE GENERATORS.