B-172940, NOV 4, 1971

B-172940, NOV 4, 1971

BID PROTEST - BID RESPONSIVENESS - QUALIFIED PRODUCTS DECISION DENYING PROTEST BY LOW BIDDER AGAINST REJECTION OF ITS BIDS AS NONRESPONSIVE AND AWARD OF CONTRACTS TO ANY OTHER BIDDER UNDER TWO INVITATIONS ISSUED BY THE DEFENSE SUPPLY AGENCY FOR VEHICULAR WARNING LIGHTS. WHILE ON A PREVIOUS CONTRACT, PROTESTANT WAS PERMITTED TO FURNISH A WARNING LIGHT IN LIEU OF THAT SPECIFIED (WHICH IS IDENTICAL TO THE ONE CALLED FOR UNDER THE PRESENT INVITATIONS). TESTS PERFORMED AT THAT TIME WERE CONDUCTED MERELY TO VERIFY THAT PROTESTANT'S LIGHT WOULD MEET THE NEEDS OF THE CONTRACT INVOLVED, AND NOT FOR INCLUSION ON A QUALIFIED PRODUCTS LIST (QPL). THEREFORE, REJECTION OF THE BID AS NONRESPONSIVE TO THE REQUIREMENT THAT PRODUCTS OFFERED BE ON THE APPLICABLE QPL WAS PROPER.

TO JULIAN A. MCDERMOTT CORPORATION:

WE REFER TO YOUR LETTERS OF MAY 11 AND JUNE 29, 1971, PROTESTING AGAINST AWARDS OF CONTRACTS UNDER DEFENSE SUPPLY AGENCY INVITATIONS FOR BIDS NOS. DSA-400-71-B-4030 AND -6406 TO ANY OTHER BIDDER.

BOTH INVITATIONS WERE FOR A PROCUREMENT OF VEHICULAR WARNING LIGHTS, MS 51317-3. EACH INVITATION REQUIRED THE ITEM TO BE LISTED AS A QUALIFIED PRODUCT ON THE APPROPRIATE QUALIFIED PRODUCTS LIST (QPL).

YOUR BID ON EACH INVITATION WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE THE ITEM YOU OFFERED WAS NOT A QUALIFIED PRODUCT. YOU PROTESTED THIS DECISION ON THE GROUNDS THAT YOU DID OFFER AN ITEM WHICH HAD BEEN QUALIFIED UNDER THE LATEST REVISION OF THE SPECIFICATION, MIL L-45325C, DATED MARCH 26, 1969. THIS QUALIFICATION ALLEGEDLY RESULTED FROM TESTS CONDUCTED ON YOUR LIGHT UNDER CONTRACT NO. DAAE07-71-C-0073, WHICH YOU HAD WITH THE UNITED STATES ARMY TANK AUTOMOTIVE COMMAND (USATACOM), THE AGENCY RESPONSIBLE FOR THE QPL FOR THIS ITEM. CONSEQUENTLY, AS BOTH YOUR BIDS WERE LOW, YOU BELIEVE AWARD OF BOTH CONTRACTS SHOULD HAVE BEEN MADE TO YOU. YOU ALSO PROTESTED THAT NONE OF THE OTHER BIDDERS HAD QUALIFIED THEIR LIGHTS UNDER MIL-L-45325C, THE SPECIFICATION DESIGNATED IN EACH SOLICITATION. BECAUSE THE OTHER BIDDERS QUALIFIED ONLY PRIOR TO 1965 UNDER THE THEN APPLICABLE SPECIFICATION, MIL-L-45325A, DATED MARCH 23, 1961, YOU CONTEND THAT AWARDS CANNOT PROPERLY BE MADE TO THEM.

AFTER YOU WERE AWARDED THE CONTRACT WITH USATACOM, YOU WERE ADVISED THAT YOU WOULD BE PERMITTED TO FURNISH A WARNING LIGHT OF "YOUR FIRM'S MANUFACTURE" IN LIEU OF THE WARNING LIGHT MS 51317-3 AS ORIGINALLY SPECIFIED. THIS WAS DONE IN CONSIDERATION OF AN $11 UNIT PRICE REDUCTION BY YOU ON THE BASIS THAT THE LIGHTS WERE TO BE CONDITIONALLY ACCEPTED PENDING THE SUCCESSFUL COMPLETION OF TESTS ON THE LIGHT AT USATACOM. IN A LETTER TO THE CONTRACTING OFFICER, USATACOM ADVISED THAT WHILE YOUR LIGHT DID SUCCESSFULLY PASS THE TESTS CONDUCTED ON IT, THESE TESTS WERE NOT CONDUCTED FOR THE PURPOSE OF QUALIFYING YOUR LIGHT FOR QPL LISTING. NOTE THAT A LARGE PORTION OF THE TESTING WAS DONE AT THE MCDERMOTT PLANT AND BY THAT FIRM RATHER THAN QPL PERSONNEL. THE TESTS RESULTS WERE MERELY FORWARDED THEN TO USATACOM. THUS, THE TESTS WERE CONDUCTED WITH THE INTENTION MERELY OF VERIFYING THAT THE LIGHT WOULD MEET THE NEEDS OF THE CONTRACT INVOLVED, AND THERE IS NO INDICATION THAT YOU WERE ADVISED AT THAT TIME THAT YOUR FIRM'S LIGHT HAD BEEN QUALIFIED FOR THE QPL. IN THAT CONNECTION, THE RECORD REVEALS THAT YOUR LIGHT WAS SUBJECTED TO QPL TESTING IN 1970, BUT THAT IT FAILED TO PASS ALL REQUIRED TESTS AT THAT TIME AND HAS NOT BEEN PRESENTED FOR RETEST SINCE. FURTHER, WHILE THERE WAS SUCCESSFUL ACCEPTANCE TESTING UNDER CONTRACT -0073, THE CONTRACT DID NOT REQUIRE QPL LISTING FOR THE LIGHT AS IT WAS ONLY A COMPONENT OF THE END ITEM THEREUNDER. IN THE CIRCUMSTANCES, WE MUST DEFER TO THE ADMINISTRATIVE JUDGMENT THAT THE ACCEPTANCE TESTING WAS NOT SUFFICIENT FOR QPL QUALIFICATION.

WHILE IT IS UNFORTUNATE THAT YOU MISTAKENLY BELIEVED YOUR LIGHT TO HAVE BEEN QUALIFIED FOR QPL LISTING, WE MUST CONCLUDE THAT BECAUSE THE LIGHT HAD NOT BEEN TESTED AND QUALIFIED FOR INCLUSION ON THE QPL PRIOR TO THE DATES SET FOR THE BID OPENINGS, AS REQUIRED BY BOTH INVITATIONS, THERE EXISTS NO BASIS TO QUESTION THE REJECTION OF YOUR BIDS AS BEING NONRESPONSIVE.

AS TO YOUR CONTENTION THAT THE CONTRACTS IN QUESTION MAY NOT BE AWARDED TO ANY OTHER BIDDER, NO OTHER BIDDER HAVING BEEN QUALIFIED UNDER THE REVISED SPECIFICATION, MIL-L-45325C, THE CONTRACTING OFFICER WAS ADVISED BY USATACOM THAT BIDDERS ALREADY LISTED ON THE QPL, I.E., THOSE BIDDERS HAVING QUALIFIED UNDER MIL-L-45325A, WERE CONSIDERED TO BE QUALIFIED SUPPLIERS UNDER MIL-L-45325C.

PARAGRAPH 4-1101(C) OF THE ARMED SERVICES PROCUREMENT REGULATION REFERENCES CHAPTER IV OF THE DEFENSE STANDARDIZATION MANUAL (DSM) 4120.3-M AS BEING THE BASIC INSTRUCTION CONCERNING QUALIFIED PRODUCTS AND QUALIFICATION PROCEDURES. PARAGRAPH 4-109, CHAPTER IV, DSM, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"*4-109 RE-EXAMINATION AND RETEST. RE-EXAMINATION OF A QUALIFIED PRODUCT SHALL BE REQUIRED BY THE PREPARING ACTIVITY UNDER ANY OF THE FOLLOWING CONDITIONS:

"(B) THE REQUIREMENTS IN THE SPECIFICATION HAVE BEEN REVISED SUFFICIENTLY TO AFFECT THE CHARACTER OF THE PRODUCT."

SINCE IT HAS BEEN DETERMINED ADMINISTRATIVELY THAT THE SPECIFICATION CHANGE DID NOT INVALIDATE EXISTING TEST DATA OR AFFECT THE CHARACTER OF THE WARNING LIGHT, WE FIND NO BASIS TO QUESTION THE DECISION NOT TO REQUIRE REQUALIFICATION.

ACCORDINGLY, WE MUST DENY YOUR PROTESTS.