B-161207, NOV. 29, 1967

B-161207, NOV. 29, 1967

BIDS - TESTS DECISION TO AUTOMATIC SWITCH CO. CONCERNING PROTEST AGAINST FAA'S ACCEPTANCE OF CONTRACTOR'S TEST LABORATORY REPORT FOR AUTOMATIC TRANSFER SWITCHES. THE MATTER OF THE ADEQUACY OF A CONTRACTOR'S TESTING PROCEDURE DOES NOT CONCERN THE LEGALITY OF THE CONTRACT BUT IS MATTER OF TECHNICAL JUDGMENT IN THE ADMINISTRATION OF THE CONTRACT. DETERMINATION THAT TESTING PROCEDURE MEETS REQUIREMENTS MUST BE ACCEPTED IN ABSENCE OF SHOWING OF BAD FAITH OR FRAUD.

TO AUTOMATIC SWITCH COMPANY:

WE REFER TO YOUR PROTEST AGAINST THE FEDERAL AVIATION AGENCY'S ACCEPTANCE OF THE CONTRACTOR'S TEST LABORATORY REPORT FOR AUTOMATIC TRANSFER SWITCHES UNDER CONTRACT NO. FA66WA-1546.

THE CONTRACT WAS AWARDED TO JOHN R. HOLLINGSWORTH COMPANY, ON MARCH 28, 1966, AND CALLS FOR THE DELIVERY OF A QUANTITY OF 125 KVA ENGINE GENERATOR SETS. THE SPECIFICATION, FAA - E-2204, REQUIRES UNDER PARAGRAPH 3.4.13.2 THAT: "THE MANUFACTURER OR SUPPLIER OR CONTRACTOR ASSEMBLING THE COMPONENTS OF THE COMPLETE AUTOMATIC TRANSFER SWITCH SHALL FURNISH A CERTIFIED TEST REPORT FROM A NATIONALLY RECOGNIZED, INDEPENDENT, TEST LABORATORY, CERTIFYING THAT HIS TRANSFER SWITCH AND TRANSFER EQUIPMENT, RELAYS, CONTRACTS, ETC., HAVE PASSED ALL OF THE FOLLOWING TESTS IN AN ENCLOSURE WITH THE DOORS CLOSED AND ALL OPENINGS SEALED.' THE TESTING REQUIREMENTS ARE LISTED IN SUBPARAGRAPHS A THROUGH H OF PARAGRAPH 3.4.13.2.

THE CONTRACTOR SUBMITTED A TEST REPORT ON THE R. C. RUSSELL COMPANY SWITCH. (REPORT NO. 398685 DATED AUGUST 26, 1966, PREPARED BY ELECTRICAL TESTING LABORATORIES, INC.) THE PROTEST CONCERNS THE ACCEPTABILITY OF THIS TEST REPORT. THE FAA CONTRACTING OFFICER HAS ACCEPTED THE TEST REPORT AND HAS ALREADY INSPECTED AND ACCEPTED OVER HALF OF THE END ITEMS ORDERED FROM THE PRIME CONTRACTOR. YOU HAVE BEEN FURNISHED WITH COPIES OF THE FAA REPLIES TO THE POINTS RAISED IN YOUR PROTEST. NEVERTHELESS, YOU ASK US TO RULE THAT THE TEST REPORT SHOULD BE REPUDIATED AS INADEQUATE AND INCOMPLETE.

YOU CONTEND THE TEST REPORT IS LACKING IN SIGNIFICANT DATA AND, THUS, PROVIDES LITTLE OR NO ASSURANCE THAT THE MODEL SWITCH AND COMPONENTS PASSED ALL THE REQUIRED TESTS. IN THIS CONNECTION, THE RECORD SHOWS THAT THE FAA AT FIRST HAD SOME DOUBTS CONCERNING THE ADEQUACY OF THE TESTING PROCEDURE, BUT, AFTER RECEIVING THE CONTRACTOR'S ASSURANCE THAT THE TESTS WERE CONDUCTED IN CONFORMANCE WITH THE SPECIFICATIONS, DECIDED TO ACCEPT THE TEST REPORT.

ONE MAY, OF COURSE, DISAGREE WITH FAA'S ACCEPTANCE OF THE TEST REPORT. HOWEVER, THE ISSUE CONCERNS NOT THE LEGALITY OF A CONTRACT AWARD BUT THE EXERCISE OF TECHNICAL JUDGMENT IN THE ADMINISTRATION OF A VALID CONTRACT. WE HAVE LONG RECOGNIZED THE PRIMACY OF THE CONTRACTING AGENCY IN DETERMINING WHETHER AS A MATTER OF FACT THE PERFORMANCE OFFERED BY THE CONTRACTOR COMPLIES WITH THE CONTRACT SPECIFICATIONS. 17 COMP. GEN. 554; 45 COMP. GEN. 357, 363. IN THE PRESENT CASE THE CONTRACTING OFFICER HAS DECIDED THAT THE SPECIFICATIONS HAVE BEEN MET. ABSENT A SHOWING OF FRAUD OR BAD FAITH ON THE PART OF THE ADMINISTRATIVE AGENCY--AND NEITHER HAS BEEN SHOWN HERE--WE FIND NO BASIS TO CHALLENGE THE LEGALITY OF THE FAA ACTION.

HOWEVER, FAA HAS BEEN MADE AWARE OF YOUR VIEWS. BY NOW THE END ITEMS ARE ALL, OR ALMOST ALL, DELIVERED. SHOULD THE SWITCH COMPONENT PROVE TO BE DEFECTIVE IN PERFORMANCE, WE EXPECT FAA TO CONSIDER YOUR SUGGESTIONS IN FUTURE PROCUREMENTS OF THE SAME OR SIMILAR ITEMS.