B-158096, MAR. 8, 1966

B-158096, MAR. 8, 1966

TO MR. WILLIAM M. BECK, PRESIDENT THE AKRON PAINT AND VARNISH COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM DATED NOVEMBER 29, 1965, AND LETTER DATED DECEMBER 8, 1965, PROTESTING THE AWARD OF CONTRACT NO. DA 04-495-AMC -1015/T), DATED NOVEMBER 1, 1965, TO WILLARD TIRE COMPANY, INC., MAYWOOD, CALIFORNIA, ISSUED BY THE UNITED STATES ARMY, LOS ANGELES PROCUREMENT DISTRICT, UNDER REQUEST FOR PROPOSALS NO. EH-6 W2268 DATED SEPTEMBER 20, 1965. THE CONTRACT REQUIRED THE FURNISHING OF 1615 5-GALLON PAILS OF PRESERVATIVE COMPOUND AT A PRICE OF $21,883.25.

THE MATERIAL REQUIRED UNDER THE CONTRACT WAS LISTED ON A QUALIFIED PRODUCTS LIST (QPL) AND THE AKRON PAINT AND VARNISH COMPANY WAS THE ONLY MANUFACTURER WHOSE NAME APPEARED ON THE QUALIFIED PRODUCTS LIST FOR MIL-P- 11520D.

YOU CONTEND THAT THE ONLY MANUFACTURERS ELIGIBLE TO RECEIVE AWARDS WERE THOSE WHOSE PRODUCTS WERE INCLUDED IN THE APPLICABLE QPL AND THAT ANYONE SUBMITTING A PROPOSAL WHO DID NOT HAVE QPL ELIGIBILITY DID SO ILLEGALLY AND DID NOT SUBMIT A LEGITIMATE PROPOSAL. YOU BASE YOUR POSITION UPON PARAGRAPH 6.5 OF THE MIL SPECIFICATION WHICH PROVIDES IN PART AS FOLLOWS:

"QUALIFICATION. WITH RESPECT TO PRODUCTS REQUIRING QUALIFICATION, AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME SET FOR OPENING BIDS, BEEN TESTED AND APPROVED FOR INCLUSION IN THE APPLICABLE QUALIFIED PRODUCTS LIST, WHETHER OR NOT SUCH PRODUCTS HAVE ACTUALLY BEEN SO LISTED BY THAT DATE. * * *"

HOWEVER, THE PREPARING ACTIVITY, UNITED STATES ARMY TANK-AUTOMOTIVE CENTER ADVISED THAT, DUE TO LACK OF ADEQUATE COMPETITION ON THE PROPOSED PROCUREMENT FROM SOURCES LISTED ON THE QPL, THE MATERIAL SHOULD BE PROCURED IN ACCORDANCE WITH THE CITED MILITARY SPECIFICATION AND IN ORDER TO ASSURE THE QUALITY OF THE MATERIAL THE LOS ANGELES PROCUREMENT DISTRICT WAS REQUESTED AND REQUIRED TO PERFORM A RIGID INSPECTION OF THE MATERIAL DELIVERED UNDER THE CONTRACT.

AWARD OF THIS PROCUREMENT TO A SUPPLIER OTHER THAN ONE ON THE QPL IS PROVIDED FOR UNDER ASPR 1-1109 WHERE INADEQUATE COMPETITION EXISTS. THE ARMY ADMITS THAT THE PROCEDURE SET FORTH IN ASPR 1-1109 "INADEQUATE COMPETITION," WAS NOT FOLLOWED PRIOR TO AWARD. HOWEVER, THE PROCUREMENT AND PRODUCTION DIRECTORATE AT ATAC IS TAKING STEPS TO ASSURE THAT FUTURE PROCUREMENT OF ITEMS FOR WHICH A QPL HAS BEEN ESTABLISHED IS EFFECTED IN COMPLETE ACCORDANCE WITH THE PROCEDURES SET FORTH IN ASPR 1-1101, ET SEQ. THE MATERIAL SUPPLIED BY WILLARD TIRE COMPANY WAS INSPECTED, ACCEPTED AND SHIPPED ON DECEMBER 15, 1965.

YOU CONTEND THAT THE WILLARD TIRE COMPANY'S BID WAS NONRESPONSIVE IN THAT IT WAS KNOWN THAT THE FIRM HAS NOT BEEN ABLE TO MEET THE TEST REQUIREMENTS OF SPECIFICATION MIL-P-11520D, AND THE AMENDMENT THERETO. THE PREPARING ACTIVITY, THE UNITED STATES ARMY TANK-AUTOMOTIVE CENTER, HAS ADVISED THAT A MEANS OF QUALITY ASSURANCE OTHER THAN QUALIFICATION APPROVAL COULD BE SUBSTITUTED IN THE PROCUREMENT, NAMELY, A RIGID INSPECTION OF THE MATERIAL DELIVERED UNDER THE CONTRACT TO MAKE SURE THE MATERIAL CONFORMED TO THE SPECIFICATIONS OF MIL-P-11520D. THE ADMINISTRATIVE REPORT STATES THAT THE INSPECTION PERFORMED WAS IN ACCORDANCE WITH SPECIFICATIONS NOTED IN THE CONTRACT. A SAMPLE WAS TAKEN FROM EACH BATCH NUMBER AND TESTED IN ACCORDANCE WITH THE REQUIREMENTS OF MIL-P-11520D PER CONTRACT REQUIREMENTS. THE ASSIGNED DCAS-QAR PERFORMED ANALYSIS EVALUATION OF THE TEST REPORTS, USING MIL P-11520D AS A GUIDE IN ORDER THAT THE ACCEPTANCE OF THE MATERIAL COULD BE AFFORDED. IT SHOULD BE NOTED THAT IN THE EVENT THE PRESERVATIVE COMPOUND FURNISHED BY WILLARD TIRE COMPANY FAILS TO CONFORM WITH THE SPECIFICATIONS, WILLARD TIRE COMPANY WILL BE REQUIRED TO MAKE ADJUSTMENTS WITHOUT COST TO THE GOVERNMENT.

YOU CONTEND THAT IT WAS PHYSICALLY, AS WELL AS CHEMICALLY, IMPOSSIBLE FOR WILLARD TIRE COMPANY TO COMPLY WITH THE TESTS REQUIRED BY THE SPECIFICATION IN TIME TO MEET THE REQUIRED DELIVERY DATE. THE TEST REPORT SUBMITTED BY WILLARD TIRE COMPANY INDICATES THAT TESTS HAVE BEEN MADE ON THE RUBBER PRESERVATIVE COMPOUND FOR A TOTAL OF THREE YEARS WITH NO CHEMICAL CHANGE THAT WOULD EFFECT USE OR PRESERVATIVE QUALITY. WE ALSO NOTE THAT THE WILLARD TESTS INDICATE THE COATING PASSES ONE YEAR EXPOSURE BY DIPPING AND TWO YEARS BY SPRAY. THE WILLARD TIRE COMPANY HAS CERTIFIED THAT TESTS HAVE BEEN PERFORMED AND MEET ALL QUALITY REQUIREMENTS.

THE ADMINISTRATIVE REPORT INDICATES THAT WILLARD TIRE COMPANY HAD IN THE PAST FURNISHED OTHER GOVERNMENT AGENCIES, INCLUDING GENERAL SERVICES ADMINISTRATION, PRESERVATIVE COATING UNDER SPECIFICATION MIL P-11520D BUT THAT GSA HAD RECENTLY REFUSED CONTRACTS TO WILLARD TIRE COMPANY BECAUSE OF THE QPL PORTION OF THE SPECIFICATION.

THE ESTABLISHMENT OF A QUALIFIED PRODUCTS LIST IS SOLELY FOR THE GOVERNMENT'S BENEFIT, AND THE GOVERNMENT MAY ELECT UNDER ASPR 1-1109 NOT TO USE IT. THERE ARE NO ASSURANCES MADE TO QUALIFIED FIRMS THAT THE GOVERNMENT WILL PURCHASE QPL ITEMS ONLY FROM SUCH FIRMS. HENCE, WHEN THE GOVERNMENT ELECTS NOT TO USE A QPL AS THE BASIS FOR PROCUREMENT, A QUALIFIED SOURCE CANNOT HAVE AN AWARD SET ASIDE AS BEING INVALID NOTWITHSTANDING THE LACK OF PRECISE COMPLIANCE WITH ADMINISTRATIVE PROCEDURES.

IN VIEW OF THE RESTRICTIVE NATURE OF THE QUALIFIED PRODUCTS SYSTEM OF PROCUREMENT, AND IN VIEW OF THE PAST HISTORY IN THE USE OF THAT SYSTEM, WE BELIEVE THAT INVITATION PROVISIONS REQUIRING PRODUCT QUALIFICATION SHOULD NOT BE NARROWLY CONSTRUED SO AS TO ELIMINATE AN ACCEPTABLE PRODUCT WHICH, AS IN THE INSTANT CASE, HAS BEEN DETERMINED BY THE PROCUREMENT AGENCY TO MEET THE ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS. A NARROW CONSTRUCTION OF SUCH INVITATION PROVISIONS IS EVEN LESS JUSTIFIED WHEN IT IS CONSIDERED THAT THE MERE LISTING OF A PRODUCT ON A QUALIFIED PRODUCT LIST DOES NOT RELIEVE A CONTRACTOR FROM HIS OBLIGATION TO DELIVER AN ITEM WHICH MEETS THE SPECIFICATIONS. SEE 43 COMP. GEN. 223, 41 COMP. GEN. 124, 40 COMP. GEN. 352.

ALTHOUGH THE PROCUREMENT WAS NOT MADE IN AN ORDERLY MANNER, WE CANNOT CONCLUDE THAT THE AWARD WAS ILLEGAL BECAUSE THE CONTRACTING AGENCY FAILED TO ACT IN COMPLETE ACCORDANCE WITH THE ADMINISTRATIVE PROCEDURE SET FORTH IN ASPR 1-1109. ACCORDINGLY, YOUR PROTEST IS DENIED.