B-171760, JUN 29, 1971

B-171760, JUN 29, 1971

BID PROTEST - BIDDER RESPONSIBILITY - PRIOR CONTRACTS - PRE-AWARD SURVEY AFFIRMING PRIOR DECISION DENYING PROTEST OF MARS SALES AGAINST THE AWARD OF A CONTRACT TO UNIVERSAL JET INDUSTRIES UNDER AN IFB ISSUED BY THE DEFENSE SUPPLY AGENCY FOR THE PROCUREMENT OF AIR CURTAINS. ALTHOUGH THE IFB CALLED FOR A TYPE III AIR CURTAIN AVAILABLE UNDER A FEDERAL SUPPLY SERVICE (FSS) CONTRACT ALREADY HELD BY UNIVERSAL AT THE TIME OF AWARD, THE GSA HAD TERMINATED THAT CONTRACT FOR DEFAULT AND SUCH ACTION SPECIFICALLY PRECLUDED PLACING FURTHER ORDERS AGAINST THE CONTRACT. PROTESTANT'S CRITICISM OF UNIVERSAL'S ABILITY TO PRODUCE AN ACCEPTABLE ITEM AS EXPRESSED IN CORRESPONDENCE WITH DSA CONCERNING UNIVERSAL'S PERFORMANCE UNDER ITS FSS CONTRACT DOES NOT REQUIRE THE CONTRACTING OFFICER TO CONDUCT A PREAWARD SURVEY WHEN SUCH A DECISION IS BASED ON ADEQUATE INFORMATION.

TO MARS SALES:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1971, CONCERNING OUR DECISION B-171760, APRIL 6, 1971, WHICH DENIED YOUR PROTEST AGAINST AWARD BY THE DEFENSE GENERAL SUPPLY CENTER (DGSC), DEFENSE SUPPLY AGENCY (DSA), OF A CONTRACT TO UNIVERSAL JET INDUSTRIES (UNIVERSAL) FOR THE FURNISHING OF AIR CURTAINS. THE PROCUREMENT SOLICITATION WAS INVITATION FOR BIDS (IFB) DSA400-71-B-2751, DATED NOVEMBER 25, 1970, AND THE AWARD WAS ISSUED ON JANUARY 19, 1971.

THE PROCUREMENT ITEM WAS DESCRIBED IN THE IFB AS A TYPE I TEMPERATURE CONTROL AIR FAN, FEDERAL STOCK NUMBER (FSN) 4140-936-3147, CONFORMING TO INTERIM FEDERAL SPECIFICATION W-F-001350 AND EQUIPPED WITH AIR INTAKE PORTS ON BOTH ENDS, WITH DAMPER CONTROLS ON THE AIR INTAKE PORTS, AND WITH A MINIMUM VELOCITY OF 1600 FEET PER MINUTE OF DISCHARGED AIR.

YOU PROTESTED THAT UNIVERSAL'S END PRODUCT COULD NOT MEET THE SPECIFICATION REQUIREMENTS. IN THIS REGARD YOU STATED THAT AIR CURTAINS SUPPLIED TO THE GOVERNMENT UNDER TWO FEDERAL SUPPLY SCHEDULE (FSS) CONTRACTS AWARDED TO UNIVERSAL BY THE GENERAL SERVICES ADMINISTRATION (GSA) HAD FAILED TO CONFORM TO THE SAME SPECIFICATION. FURTHER, YOU QUESTIONED WHY DSA HAD NOT USED THE FSS CONTRACT FOR PROCUREMENT OF THE AIR CURTAINS.

IN OUR DECISION OF APRIL 6 WE INFORMED YOU THAT THE FSS FOR THE AIR CURTAINS WAS NOT LISTED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 5- 102.3 AS AN FSS WHICH IS REQUIRED TO BE USED BY THE DEPARTMENT OF DEFENSE, AND WE CALLED YOUR ATTENTION TO ASPR 5-104.1, RELATING TO OPTIONAL FSS CONTRACTS, UNDER WHICH FORMAL ADVERTISING IS CONTEMPLATED WHEN WARRANTED BY A PARTICULAR SITUATION. FURTHER, WE STATED THAT DSA HAD EXPLAINED THAT THE TYPE I AIR CURTAIN AVAILABLE UNDER THE FSS CONTRACT DID NOT INCLUDE THE FEATURES LISTED IN THE IFB PURCHASE DESCRIPTION, WHICH WERE PERMITTED AS OPTIONS UNDER THE PROVISIONS OF THE INTERIM FEDERAL SPECIFICATION.

AS TO THE ACCEPTANCE BY DSA OF UNIVERSAL'S LOW BID, WE ADVISED YOU THAT UNIVERSAL TOOK NO EXCEPTION TO THE IFB REQUIREMENTS AND WOULD THEREFORE BE BOUND TO FURNISH AN ITEM IN CONFORMITY WITH THE SPECIFIED NEEDS OF THE GOVERNMENT. IN ADDITION, WE ADVISED YOU THAT DSA INTENDED TO HAVE THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), MIAMI, FLORIDA, VERIFY THE CONTRACTOR INSPECTION AND TESTS UNDER THE QUALITY ASSURANCE PROVISIONS OF THE INTERIM FEDERAL SPECIFICATION AND FURNISH COPIES OF THE RELATED REPORTS TO DGSC.

IN YOUR LETTER OF APRIL 19 YOU STATE THAT THE AIR CURTAIN WHICH DSA HAS PROCURED UNDER IFB DSA400-71-B-2751 IS SIMILAR, IF NOT IDENTICAL, TO THE TYPE III AIR CURTAIN AVAILABLE UNDER THE FSS CONTRACT HELD BY UNIVERSAL AT THE TIME OF AWARD; THAT THE TYPE III AIR CURTAIN WAS REJECTED BY THE GENERAL SERVICES ADMINISTRATION (GSA) IN JUNE 1970; AND THAT THE CURTAIN NOW OFFERED BY UNIVERSAL TO DSA, AT A PRICE WHICH IS CONSIDERABLY HIGHER THAN THE FSS CONTRACT PRICE BUT LOWER THAN THE PRICE PAID BY DSA UNDER CONTRACTS WHICH DID NOT CITE INTERIM FEDERAL SPECIFICATION W-F-001350, WILL LIKEWISE NOT MEET THE INTERIM FEDERAL SPECIFICATION REQUIREMENTS. THIS CONNECTION, YOU ASK WHETHER THE FACT THAT DSA MADE ITS AWARD IN JANUARY 1971 NOTWITHSTANDING THE REJECTION IN JUNE 1970 OF THE TYPE III AIR CURTAINS BY GSA MEANS THAT MILITARY AND NONMILITARY PROCUREMENT OFFICIALS DO NOT EXCHANGE SUCH INFORMATION SO AS TO PRECLUDE WHAT HAPPENED IN THIS INSTANCE.

YOU ALSO QUESTION WHY, IN LIGHT OF YOUR CORRESPONDENCE WITH DSA REGARDING UNIVERSAL'S ABILITY TO PRODUCE AN ACCEPTABLE ITEM, A PREAWARD SURVEY OF UNIVERSAL WAS NOT REQUESTED BY THE CONTRACTING OFFICER.

FINALLY, YOU CONTEND THAT DCASD - MIAMI SHOULD MAKE THE NECESSARY TESTS OF UNIVERSAL'S AIR CURTAINS RATHER THAN ACCEPT UNIVERSAL'S WORD AS TO THE TEST RESULTS.

BY DECISION B-171010, DATED APRIL 16, 1971, WHICH YOU APPARENTLY HAD NOT RECEIVED WHEN YOU WROTE YOUR LETTER OF APRIL 19 CONCERNING THE DSA PROCUREMENT, WE ADVISED YOU THAT ON NOVEMBER 27, 1970, GSA TERMINATED UNIVERSAL'S FSS CONTRACT GS-OOS-83809, COVERING THE PERIOD MAY 1, 1970 THROUGH APRIL 30, 1971, FOR DEFAULT AS TO TYPE II AND TYPE III AIR CURTAINS, AND THAT NOTICE OF SUCH ACTION WAS INCLUDED IN AN AMENDMENT ISSUED JANUARY 7, 1971, TO THE FSS CONTRACT. IN LIGHT OF SUCH ACTION, IT IS APPARENT THAT THE TYPE III AIR CURTAINS WOULD NOT HAVE BEEN AVAILABLE TO DSA AT THE TIME OF THE JANUARY 19 AWARD. FURTHER, DSA WAS SPECIFICALLY PRECLUDED BY ASPR 5-108(C)(4)(II), RELATING TO GSA DEFAULT TERMINATIONS OF FSS CONTRACTS, FROM PLACING ANY ORDERS AGAINST CONTRACT GS-OOS-83809 AFTER NOTICE OF THE DEFAULT ACTION.

AS TO THE FACT THAT DSA DID NOT USE THE INTERIM FEDERAL SPECIFICATION IN SOLICITING AIR CURTAIN REQUIREMENTS PRIOR TO NOVEMBER 1970, YOU ARE ADVISED THAT UNDER FEDERAL PROCUREMENT REGULATIONS 1-1.305-4 THE USE OF INTERIM FEDERAL SPECIFICATIONS IS OPTIONAL WITH GOVERNMENT AGENCIES. DSA, THEREFORE, WAS NOT OBLIGATED TO USE THE SPECIFICATION IN QUESTION, AND ABSENT ITS USE NEITHER UNIVERSAL NOR ANY OTHER CONTRACTOR COULD BE HELD TO COMPLIANCE WITH ITS REQUIREMENTS.

YOUR QUESTIONS REGARDING PERFORMANCE OF A PREAWARD SURVEY OF UNIVERSAL AND THE EFFECT OF UNIVERSAL'S PERFORMANCE UNDER ITS FSS CONTRACTS UPON ITS ELIGIBILITY FOR AWARD OF OTHER GOVERNMENT CONTRACTS RELATE TO THE MATTER OF UNIVERSAL'S RESPONSIBILITY.

ASPR 1-905.1(A) REQUIRES THAT A CONTRACTING OFFICER HAVE IN HIS POSSESSION, OR OBTAIN, SUFFICIENT INFORMATION TO SUPPORT A DETERMINATION AS TO THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. WHEN THE INFORMATION AVAILABLE TO THE CONTRACTING OFFICER FOR SUCH PURPOSE IS NOT SUFFICIENT, ASPR 1-905.4(B) REQUIRES THAT A PREAWARD SURVEY OF THE PROSPECTIVE CONTRACTOR BE MADE. AMONG THE SOURCES LISTED IN ASPR 1-905.3 FROM WHICH INFORMATION ON A PROSPECTIVE CONTRACTOR MAY BE OBTAINED ARE THE DEPARTMENT OF DEFENSE (THIS INCLUDES THE EXPERIENCE LISTS WHICH DSA, THE NAVY AND THE AIR FORCE EACH MAINTAIN ON THEIR OWN CONTRACTS ONLY) AND OTHER GOVERNMENT DEPARTMENTS AND AGENCIES.

UNDER SUCH PROVISIONS, THE DETERMINATION WHETHER TO REQUEST A PREAWARD SURVEY IS DEPENDENT UPON THE CONTRACTING OFFICER'S EVALUATION OF WHATEVER INFORMATION IS AVAILABLE TO HIM REGARDING THE PROSPECTIVE CONTRACTOR. THIS CASE, AS WAS STATED IN OUR DECISION B-171760, SUPRA, THE CONTRACTING OFFICER SUPPORTED HIS DETERMINATION NOT TO REQUEST A PREAWARD SURVEY OF UNIVERSAL BY A MEMORANDUM, PREPARED IN ACCORDANCE WITH THE REQUIREMENTS OF DSA PROCUREMENT REGULATION 1 905.4(E), SUMMARIZING INFORMATION OF RECORD WHICH INDICATED THAT UNIVERSAL WAS RESPONSIBLE. IN LIGHT OF SUCH DATA, WHICH INCLUDED INFORMATION ON UNIVERSAL'S PERFORMANCE OF OTHER GOVERNMENT CONTRACTS, WE EXPRESSED THE OPINION THAT THE CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WAS NOT WITHOUT AN ADEQUATE BASIS.

WHILE YOU APPARENTLY BELIEVE THAT YOUR COMPLAINTS TO DSA REGARDING THE AIR CURTAINS MANUFACTURED BY UNIVERSAL CONSTITUTED SUFFICIENT JUSTIFICATION FOR CONDUCT OF A PREAWARD SURVEY BY DSA BEFORE ACCEPTING UNIVERSAL'S LOW BID UNDER IFB DSA400-71-B-2751, WE ARE UNABLE TO CONCUR WITH YOUR POSITION. IN THE FIRST PLACE, NONCOMPLIANCE OF THE UNIVERSAL AIR CURTAINS WITH THE INTERIM FEDERAL SPECIFICATION WAS NOT A FACTOR IN DSA'S PREVIOUS CONTRACTS WITH UNIVERSAL, NONE OF WHICH INCLUDED THE SPECIFICATION. IN THE SECOND PLACE, THE ISSUE OF NONCOMPLIANCE OF UNIVERSAL'S AIR CURTAINS WITH THE INTERIM FEDERAL SPECIFICATION AND/OR OTHER REQUIREMENTS OF THE FSS CONTRACT WAS IN DISPUTE AT THE TIME DSA ASSESSED UNIVERSAL'S RESPONSIBILITY FOR THE PURPOSE OF IFB DSA400-71-B 2751. IT IS APPARENT, HOWEVER, FROM THE CORRESPONDENCE WHICH YOU EXCHANGED WITH DSA AND WITH GSA, THAT YOUR STATEMENTS WERE CONSIDERED BY THE DGSC CONTRACTING OFFICER. NEVERTHELESS, IN THE EXERCISE OF THE DISCRETION ACCORDED TO HIM BY ASPR 1-905.1(A) AND BY ASPR 1-905.4(B), THE CONTRACTING OFFICER DETERMINED THAT THE DATA ON UNIVERSAL WHICH WAS AVAILABLE WAS SUFFICIENT TO SUPPORT AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WITHOUT NEED FOR A PREAWARD SURVEY. ON THE EVIDENCE OF RECORD, WE ADHERE TO THE VIEW STATED IN B-171760, SUPRA, THAT WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION WAS WITHOUT A PROPER BASIS.

AS TO THE QUALITY OF THE AIR CURTAINS SUPPLIED BY UNIVERSAL TO DSA UNDER THE JANUARY 19, 1971, CONTRACT WE HAVE BEEN ADVISED BY DSA THAT DELIVERIES HAVE BEEN COMPLETED; THAT DCASD-MIAMI MONITORED THE INSPECTION AND TESTING OF THE AIR CURTAINS; AND THAT DCASD-MIAMI INFORMED DGSC THAT ALL UNITS MET ALL REQUIREMENTS OF THE APPLICABLE SPECIFICATION. FOR YOUR FURTHER INFORMATION, DSA HAS ALSO ADVISED OUR OFFICE THAT THE PROCUREMENT RECENTLY SYNOPSIZED IN THE COMMERCE BUSINESS DAILY, WHICH HAS A BID OPENING DATE OF JUNE 23, 1971, COVERS A REQUIREMENT FOR 130 ADDITIONAL AIR CURTAINS, WHICH ARE SIMILAR, BUT NOT IDENTICAL, TO THE AIR CURTAINS DELIVERED BY UNIVERSAL UNDER ITS JANUARY 1971 CONTRACT.

IT WOULD APPEAR THAT UNIVERSAL HAS MET THE ADVERTISED SPECIFICATION REQUIREMENTS FOR THE DSA AIR CURTAINS AND THAT THE CONTRACT INSPECTION AND TESTING REQUIREMENTS HAVE BEEN ENFORCED BY THE GOVERNMENT. IF YOU HAVE REASON TO BELIEVE, HOWEVER, THAT THE UNITS IN QUESTION DO NOT MEET THE ADVERTISED SPECIFICATIONS, WE SHALL CONSIDER THE MATTER FURTHER UPON RECEIPT OF A WRITTEN STATEMENT BY YOU SETTING FORTH THE BASIS FOR SUCH CONTENTION.

FOR THE REASONS STATED, OUR DECISION OF APRIL 6 IS AFFIRMED.