B-175188, JUN 1, 1972

B-175188, JUN 1, 1972

BID PROTEST - NONRESPONSIVENESS - QUALIFIED PRODUCTS LIST DECISION DENYING THE PROTEST OF THE ARO CORPORATION AGAINST AWARD OF A CONTRACT TO THOMAS C. WILSON, INC; UNDER AN IFB ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR PORTABLE PNEUMATIC GRINDERS. QUESTIONS OF QUALIFIED PRODUCT IDENTIFICATION MUST BE RESOLVED ON THE PARTICULAR FACTS OF EACH CASE. SINCE THE CONTRACTING OFFICER INDEPENDENTLY DETERMINED THAT THE WILSON ITEM WAS A QUALIFIED PRODUCT, THERE EXISTS NO BASIS FOR OBJECTION TO THE AWARD AND THE PROTEST MUST BE DENIED.

TO W. S. SPOTSWOOD AND SONS, INC.:

WE REFER TO YOUR LETTER OF MAY 1, 1972, AND PRIOR CORRESPONDENCE, PROTESTING ON BEHALF OF THE ARO CORPORATION AGAINST AWARD OF ITEMS 1 AND 2 TO ANY OTHER BIDDERS UNDER INVITATION FOR BIDS NO. FPNTP-B6-19208 A ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

ITEMS 1 AND 2 COVER ESTIMATED REQUIREMENTS FOR PORTABLE PNEUMATIC GRINDERS; BOTH ITEMS REQUIRE QUALIFIED PRODUCTS. BIDDERS WERE ADVISED THAT "AWARDS WILL BE MADE ONLY FOR SUCH PRODUCTS AS HAVE, PRIOR TO THE TIME SET FOR OPENING OF OFFERS, BEEN TESTED AND APPROVED FOR INCLUSION IN THE (APPLICABLE) QUALIFIED PRODUCTS LIST (QPL) *** ." ALSO, THEY WERE ADVISED THAT "ANY OFFER WHICH DOES NOT IDENTIFY THE QUALIFIED PRODUCT OFFERED WILL BE REJECTED." THE ROCKWELL MANUFACTURING COMPANY SUBMITTED THE LOWEST BID FOR ITEMS 1 AND 2. YOUR FIRM IS THE SECOND LOW BIDDER FOR ITEM 1 AND THE THIRD LOW BIDDER FOR ITEM 2. THOMAS C. WILSON, INC; IS THE SECOND LOW BIDDER FOR ITEM 2.

INSOFAR AS YOUR OBJECTION TO AN AWARD TO ROCKWELL IS CONCERNED, GSA HAS DETERMINED THAT FIRM'S BID FOR ITEMS 1 AND 2 TO BE NON-RESPONSIVE SINCE IT DID NOT OFFER A PRODUCT WHICH WAS QUALIFIED AT THE TIME OF BID OPENING FOR LISTING ON THE QPL, CITING B-143282, AUGUST 18, 1960. BY LETTER DATED MARCH 20, 1972, TO OUR OFFICE, ROCKWELL ACKNOWLEDGED THE CORRECTNESS OF GSA'S DETERMINATION.

YOU ALSO CONTEND THAT THE BID SUBMITTED BY THOMAS C. WILSON, INC; ON ITEM 2 WAS NONRESPONSIVE BECAUSE IN REPLY TO THE SOLICITATION'S REQUIREMENT FOR IDENTIFYING THE QPL PRODUCT DESIGNATION, WILSON LISTED "MODEL 921-75" WHILE THE QPL LISTS "921" AS THE MANUFACTURER'S DESIGNATION. (IT IS CONCEDED THAT WILSON'S IDENTIFICATION OF THE QPL TEST REFERENCE NUMBER CORRESPONDS TO THE TEST NUMBER LISTED ON THE QPL AND THAT WILSON WILL MANUFACTURE THE ITEM). YOU MAINTAIN THAT THIS VARIATION IS SIGNIFICANT IN THAT IT MAKES IT IMPOSSIBLE TO DETERMINE WHETHER THE ITEM OFFERED IS A QUALIFIED PRODUCT. IN THIS CONNECTION, YOU POINT OUT THAT THE "921" DESIGNATION COVERS 66 DIFFERENT MODELS, AND IS NOT, IN ITSELF, A MODEL DESIGNATION. YOU ALSO ASSERT THAT NOT ALL OF THE MODELS WOULD BE QUALIFIED.

GSA HAS DETERMINED THAT THE WILSON BID OFFERS A QUALIFIED PRODUCT AFTER ASSURANCES OF THE NAVAL SHIP ENGINEERING CENTER, THE ACTIVITY IN CHARGE OF THE QPL, THAT THE ADDITION OF THE SUFFIX, "75", DOES NOT AFFECT PRODUCT QUALIFICATION. MORE IMPORTANTLY, AN EXAMINATION OF THE TEST REPORT, CORRECTLY REFERENCED IN WILSON'S BID, INDICATES THAT THE GRINDER ORIGINALLY TESTED AND APPROVED WAS THE WILSON MODEL NO. 921-75 THE EXACT MODEL WHICH WILSON PROPOSES TO FURNISH. THE RECORD ALSO INCLUDES CORRESPONDENCE FROM THE NAVAL SHIP ENGINEERING CENTER WHICH INDICATES THAT THE CENTER SUGGESTED THE DELETION OF THE SUFFIX NUMBER AND THAT SUCH ACTION WAS NOT INTENDED TO HAVE AN IMPACT ON THE PRODUCT QUALIFICATION.

WHILE IT MAY NOT BE THAT THE QPL LISTING IS INTENDED TO EXTEND QUALIFICATION TO WILSON'S ENTIRE 921 SERIES, THERE IS NO QUESTION THAT WILSON'S MODEL 921-75 IS, IN FACT, QUALIFIED. MOREOVER, THE FACT THAT GSA DID NOT RELY ON ITS INTERPRETATION OF THE QPL WITHOUT FIRST CONTACTING THE NAVAL SHIP ENGINEERING CENTER AND LATER SECURING DOCUMENTS INDICATING THE CIRCUMSTANCES LEADING UP TO THE ELIMINATION OF THE SUFFIX DESIGNATION DOES NOT REQUIRE THE CONCLUSION THAT WILSON'S BID MUST BE REJECTED FOR FAILING TO SUFFICIENTLY IDENTIFY ITS QUALIFIED PRODUCT.

IN VIEW OF THE INHERENTLY RESTRICTIVE CHARACTER OF THE QUALIFIED PRODUCTS PROCEDURE, WE HAVE REFRAINED FROM ADOPTING UNIFORM REQUIREMENTS AS TO WHAT CONSTITUTES A SUFFICIENT PRODUCT IDENTIFICATION. B-161779, AUGUST 7, 1967. RATHER, WE HAVE JUDGED EACH CASE ON ITS PARTICULAR FACTS WITH THE VIEW OF AVOIDING OVERLY TECHNICAL RESULTS. IN RESOLVING THESE QUESTIONS, WE HAVE NOT CONFINED THE CONTRACTING AGENCY SOLELY TO A COMPARISON OF A BIDDER'S IDENTIFICATION INFORMATION WITH THE APPLICABLE QPL. WHERE, AS HERE, THE CONTRACTING OFFICER UNDERTAKES AN INVESTIGATION TO RESOLVE ANY DOUBT THAT HE MAY HAVE AS TO WHETHER THE PRODUCT IS QUALIFIED, THE RESULTS OF THAT INVESTIGATION ARE PROPERLY FOR CONSIDERATION. B-172636, AUGUST 23, 1971. IN THIS CONTEXT, WE ATTACH NO SIGNIFICANCE TO THE FACT THAT THE CONTRACTING OFFICER REQUESTED AND RECEIVED FROM WILSON COPIES OF NAVAL SHIP ENGINEERING CENTER CORRESPONDENCE ESTABLISHING THE FACT OF QUALIFICATION WHERE THE AUTHENTICITY OF THE DOCUMENTS IS UNQUESTIONED AND COPIES OF THE DOCUMENTS COULD HAVE BEEN OBTAINED BY THE CONTRACTING OFFICER DIRECTLY FROM THE CENTER'S FILES. FURTHER, AS INDICATED ABOVE, THE INFORMATION GENERATED INDEPENDENTLY FROM THE NAVAL SHIP ENGINEERING CENTER WAS SUFFICIENT TO ASSURE THE CONTRACTING OFFICER THAT THE GRINDER LISTED BY WILSON IN ITS BID WAS THE ONE LISTED ON THE QPL, WITHOUT CONSIDERATION OF THE INFORMATION PROVIDED LATER BY WILSON.

ACCORDINGLY, WE WILL INTERPOSE NO OBJECTIONS TO GSA'S PROPOSED AWARD OF A CONTRACT TO WILSON FOR ..END :