B-164732, SEP. 30, 1968

B-164732, SEP. 30, 1968

TO MR. SECRETARY:

BY LETTER DATED JULY 31, 1968, THE DEPUTY COMMANDER, PURCHASING, NAVAL SUPPLY SYSTEMS COMMAND, FURNISHED OUR OFFICE WITH A REPORT ON THE PROTEST OF TABET MANUFACTURING CO., INC. OF THE AWARD OF CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR QUOTATIONS (RFQ) NO. N00189-68-Q 0059, ISSUED BY THE NAVAL SUPPLY CENTER.

THE SUBJECT RFQ WAS FOR A BASIC QUANTITY OF 1,175 FIELD CHANGE KITS WITH OPTIONS TO 1,375 TO PROTECT A CERTAIN ANTENNA COUPLER FROM DESTRUCTION BY HEAT. PARAGRAPH 2.2.10 OF THE RFQ REQUIRED THAT SAMPLES OF CERTAIN COMPONENTS OF THE FIELD CHANGE KITS FABRICATED WITH BERYLLIUM OXIDE BE FURNISHED WITH QUOTATIONS FOR TESTING TO DETERMINE THE QUOTER'S CAPABILITY TO MANUFACTURE SUCH COMPONENTS WITHIN SPECIFIED TOLERANCES AND TO DETERMINE THE COMPONENTS GENERAL ACCEPTABILITY. THE RFQ ALSO REQUIRED, IN PARAGRAPH 7.5, THE SUBMISSION WITH QUOTATIONS OF A QUALITY ASSURANCE PROGRAM WITH REGARD TO BERYLLIUM OXIDE COMPONENTS AND SPECIFIED IN PARAGRAPH 7.7 THAT FAILURE TO SUBMIT SAMPLES WOULD RESULT IN QUOTATION REJECTION. ADDITIONALLY, THE RFQ CONTAINED PROVISIONS FOR FIRST ARTICLE APPROVAL.

THE ORIGINAL DATE FOR THE SUBMISSION OF QUOTATIONS WAS APRIL 25, 1968. BY LETTER TO THE NAVAL SUPPLY CENTER DATED APRIL 16, 1968, BEFORE SUBMISSION OF ITS PROPOSAL, TABET REQUESTED THAT THE SAMPLE REQUIREMENT BE DELETED FROM THE RFQ ON THE GROUNDS THAT THE RFQ SPECIFICATIONS ADEQUATELY DESCRIBED THE PARTS FOR WHICH SAMPLES WERE REQUESTED AND THAT THE SAMPLE REQUIREMENT WAS THEREFORE CONTRARY TO THE REQUIREMENTS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 202.4; THAT THE SAMPLE REQUIREMENT PLACED "THE BURDEN OF ADDITIONAL AND UNNECESSARY EXPENSE ON US IN ORDER TO MAKE A PROPOSAL"; AND THAT THE SAMPLE REQUIREMENT, WHICH WOULD BE WAIVED FOR THE ORIGINAL MANUFACTURER AND ONLY PRIOR PRODUCER OF THE KITS, HAD THE EFFECT OF EXCLUDING ALL PROSPECTIVE CONTRACTORS OTHER THAN THE PRIOR PRODUCER. TABET ALSO REQUESTED THAT THE CLOSING DATE FOR QUOTATION SUBMISSION BE EXTENDED TO ALLOW CONSIDERATION OF ITS REQUEST FOR DELETION OF THE SAMPLE REQUIREMENT AND TO ALLOW SUFFICIENT TIME THEREAFTER FOR QUOTATION PREPARATION.

AS A RESULT OF TABET'S REQUEST, THE POSSIBILITY OF DELETING THE SAMPLE REQUIREMENT WAS CONSIDERED BY THE NAVAL SHIP ENGINEERING CENTER, NORFOLK, VIRGINIA, WHICH DETERMINED THAT THE SAMPLES WERE REQUIRED "BECAUSE OF THE CRITICALITY OF TOLERANCES OF THE BERYLLIUM OXIDE PARTS.' TABET WAS INFORMED OF THIS DETERMINATION BY LETTER DATED APRIL 26, 1968. THEREAFTER, TABET AGAIN REQUESTED DELETION OF THE SAMPLE REQUIREMENT AND SUGGESTED INSTEAD THAT THE FIRST ARTICLE SUBMISSION REQUIREMENT BE MADE MORE SEVERE. THE CONTRACTING OFFICER RESPONDED BY LETTER DATED MAY 2, 1968, THAT WHILE URGENCY PRECLUDED ANY FURTHER CONSIDERATION OF POSSIBLE DELETION OF THE SAMPLE REQUIREMENT IN THE INSTANT PROCUREMENT,"FOR FUTURE PROCUREMENTS OF THIS MATERIAL THE FIRST ARTICLE MIGHT BE CONSIDERED AN ACCEPTABLE METHOD OF DETERMINING CONTRACTOR CAPABILITIES.'

THE CLOSING DATE FOR THE RECEIPT OF QUOTATIONS WAS EXTENDED UNTIL MAY 10, 1968, IN ACCORDANCE WITH TABET'S REQUEST. OF THE FOUR OFFERS RECEIVED, THE 2 LOW OFFERS, INCLUDING THAT OF TABET, WERE REJECTED FOR FAILURE TO SUBMIT EITHER SAMPLES OR QUALITY ASSURANCE PROGRAMS AS REQUIRED BY THE RFQ. NEGOTIATIONS WERE CONDUCTED WITH THE REMAINING 2 OFFERORS AND AN AWARD WAS MADE TO NATIONAL BERYLLIA CORP., THE ONLY PRIOR PRODUCER OF THE KITS, ON JUNE 18, 1968.

AFTER AWARD WAS MADE COMPLETE FIELD CHANGE KITS WERE ACQUIRED FROM EACH OF THE 3 UNSUCCESSFUL QUOTERS FOR THE PURPOSE OF QUALIFICATION TESTING FOR LATER FISCAL YEAR PROCUREMENTS OF THE KITS IN QUESTION.

ON THE BASIS OF THE PRESENT RECORD, WE ARE NOT CONVINCED THAT THE REQUIREMENT FOR PREAWARD SAMPLES IN THE INSTANT CASE WAS AUTHORIZED BY ASPR 2-202.4. THAT SECTION SPECIFICALLY STATES THAT THE TERM "BID SAMPLE" DOES NOT REFER TO SAMPLES SUBMITTED "TO EVIDENCE A MANUFACTURER'S ABILITY TO PRODUCE.' FURTHER, SUBSECTION (B) OF THE REFERENCED SECTION STATES: "BIDDERS SHALL NOT BE REQUIRED TO FURNISH A BID SAMPLE OF A PRODUCT THEY PROPOSE TO FURNISH UNLESS THERE ARE CERTAIN CHARACTERISTICS OF THE PRODUCT WHICH CANNOT BE DESCRIBED ADEQUATELY IN THE APPLICABLE SPECIFICATION OR PURCHASE DESCRIPTION,THUS NECESSITATING THE SUBMISSION OF A SAMPLE TO ASSURE PROCUREMENT OF AN ACCEPTABLE PRODUCT.' IN THIS REGARD OUR OFFICE HAS CONSISTENTLY HELD THAT SAMPLES ARE NOT TO BE USED TO DETERMINE A BIDDER'S CAPABILITY TO MANUFACTURE AN ITEM MEETING SPECIFICATION REQUIREMENTS. 17 COMP. GEN. 940, 43 COMP. GEN. 465; B-161305, JULY 13, 1967.

THE REPORT SUBMITTED TO OUR OFFICE BY THE NAVAL SUPPLY SYSTEMS COMMAND STATES THAT:

"IT WAS THE CONTRACTING OFFICER'S DETERMINATION THAT THERE WERE CERTAIN CHARACTERISTICS OF THE PRODUCT THAT COULD NOT BE ADEQUATELY DESCRIBED IN THE SPECIFICATIONS, THUS NECESSITATING THE SUBMISSION OF SAMPLES TO ASSURE PROCUREMENT OF AN ACCEPTABLE PRODUCT.' HOWEVER, THE INITIAL BID SAMPLE JUSTIFICATION SUBMITTED TO THE CONTRACTING OFFICER BY THE REQUIRING ACTIVITY AS WELL AS THE VARIOUS LATER JUSTIFICATIONS SUBMITTED AS A RESULT OF TABET'S REQUESTS FOR DELETION OF THE SAMPLE REQUIREMENT ALL ADDRESS THEMSELVES TO THE NEED FOR DETERMINING AN OFFEROR'S ABILITY TO MEET THE SPECIFICATIONS AND TO THE URGENCY OF THE PROCUREMENT RATHER THAN TO ANY INADEQUACY IN THE SPECIFICATIONS THEMSELVES. IN THIS REGARD, THE ORIGINAL BID SAMPLE JUSTIFICATION DISCUSSES THE DIFFICULTY OF FABRICATION TECHNIQUES FOR BERYLLIUM OXIDE COMPONENTS; THE CRITICAL NATURE OF THE SPECIFICATION TOLERANCES REQUIRED OF BERYLLIUM OXIDE COMPONENTS; THE NEED FOR EXCLUDING INEXPERIENCED COMPANIES BY MEANS OTHER THAN "THE NORMAL PROCESS OF LOW BIDS AND UNACCEPTABLE PREPRODUCTION UNITS AND THE STEP BY STEP QUALIFICATION OF OR NONQUALIFICATION OF EACH SUCESSIVE LOW BIDDER" BECAUSE OF URGENCY; AND THE FACT THAT THE ONLY PRIOR PROCUREMENT OF THE SUBJECT KITS WAS SOLE-SOURCE. NEITHER THE ORIGINAL JUSTIFICATION NOR THE LATER ONES, HOWEVER, TAKE THE POSITION THAT THE BERYLLIUM OXIDE COMPONENTS ARE NOT ADEQUATELY DESCRIBED BY THE SPECIFICATIONS.

ACCORDINGLY, IT APPEARS THAT SOME MEANS OTHER THAN THE BID SAMPLE, SUCH AS THE FIRST ARTICLE APPROVAL REQUIREMENT CONTAINED IN THE RFQ OR A QUALIFICATION PROGRAM SUCH AS IS NOW IN PROCESS, SHOULD HAVE BEEN UTILIZED TO DETERMINE THE CAPABILITY OF OFFERORS OTHER THAN THE PRIOR SUPPLIER TO MANUFACTURE SUITABLE BERYLLIUM OXIDE COMPONENTS. IN VIEW OF THE URGENCY OF THIS PROCUREMENT AS EVIDENCED BY AN 05 PRIORITY DESIGNATOR AND IN VIEW OF THE FURTHER FACT THAT THERE IS NO INDICATION THAT THE OFFERS OF THE 2 LOW OFFERORS WERE NOT PROPERLY REJECTED FOR FAILURE TO SUBMIT QUALITY ASSURANCE PROGRAMS, WE DO NOT FEEL THAT THE AWARD AS MADE SHOULD BE DISTURBED, BUT WE SUGGEST THAT CARE BE TAKEN IN FUTURE PROCUREMENTS TO ASSURE THAT BID SAMPLES BE REQUIRED ONLY IN THOSE INSTANCES CONTEMPLATED BY ASPR 2-202.4.