B-178015, OCT 23, 1973, 53 COMP GEN 249

B-178015, OCT 23, 1973, 53 COMP GEN 249

CONTRACTS - SPECIFICATIONS - QUALIFIED PRODUCTS - REEVALUATION - CHANGES REQUIRING REEVALUATION A BIDDER WHO FAILED TO HAVE A PRODUCT ON THE QUALIFIED PRODUCTS LIST REEVALUATED PURSUANT TO THE QUALIFIED END PRODUCTS CLAUSE (ASPR 1 1107.2(A)) INCLUDED IN THE INVITATION FOR BIDS TO FURNISH ROAD GRADERS, A CLAUSE WHICH REQUIRES REEVALUATION OF A PRODUCT IF ANY CHANGE OCCURRED IN THE LOCATION OR OWNERSHIP OF A PLANT AT WHICH A PREVIOUSLY APPROVED PRODUCT IS, OR WAS, MANUFACTURED, MAY, NEVERTHELESS, HAVE ITS BID CONSIDERED FOR AWARD SINCE THE CHANGE IN THE CIRCUMSTANCES OF THE BIDDING CONCERN WAS ONE OF FORM, NOT SUBSTANCE - A TRANSFER OF TITLE TO THE PLANT FACILITY AND A CHANGE IN CORPORATE NAME WITH NO ACCOMPANYING CHANGE IN EMPLOYEES, PRODUCTS, AND MANUFACTURING PROCESSES - AND, THEREFORE, REEVALUATION OF THE PRODUCT WOULD BE A USELESS EXERCISE AND AN OVERLY TECHNICAL APPLICATION OF THE REEVALUATION REQUIREMENT. BIDS EVALUATION - MANUALS AN IFB SCHEDULE PROVISION TO THE EFFECT A BIDDER WILL BE CONSIDERED NONRESPONSIVE IF THE COMMERCIAL TECHNICAL MANUALS SOLICITED DID NOT MEET MILITARY SPECIFICATION STANDARDS SHOULD BE DELETED FOR USE IN FUTURE SOLICITATIONS AS IT IS PREJUDICIAL TO FAULT BIDDERS FOR THIS FAILURE IN VIEW OF THE FACT THE MILITARY SPECIFICATION ON "MANUALS, TECHNICAL: COMMERCIAL EQUIPMENT" DOES NOT CONTEMPLATE BID REJECTION ON THE BASIS OF MANUAL INSUFFICIENCY BUT RATHER PROVIDES THAT THE DETAILS OF MANUAL CONTENT SHALL BE COVERED BY THE CONTRACT; IN VIEW OF A CONFLICTING PROVISION IN THE SOLICITATION SCHEDULE THAT COMMERCIAL MANUAL CONTENT THAT UNINTENTIONALLY DEVIATES FROM THE EQUIPMENT SPECIFICATION AFFORDS NO BASIS FOR BID REJECTION; AND IN VIEW OF THE FACT A BIDDER IS BOUND BY ITS BID TO COMPLY WITH BOTH EQUIPMENT SPECIFICATIONS AND THE COMMERCIAL MANUAL REQUIREMENTS OF THE MILITARY SPECIFICATIONS.

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY, OCTOBER 23, 1973:

WE REFER TO THE PROTEST OF JEFFREY GALION INC. AGAINST CERTAIN PROVISIONS IN DEFENSE CONSTRUCTION SUPPLY CENTER INVITATION FOR BIDS (IFB) DSA700-73- B-2129 AND THE REJECTION OF ITS BID AS NONRESPONSIVE.

BIDS WERE SOLICITED FOR 10 ROAD GRADERS UNDER THE IFB. THE ONLY BIDDERS WERE HUBER CORPORATION (HUBER) AND GALION MANUFACTURING COMPANY (GALION), DIVISION OF JEFFREY GALION INC. THE LATTER FIRM BID ONLY TO SUPPLY SIX GRADERS. THE PRICES OFFERED INDICATED THAT A SPLIT AWARD SHOULD BE MADE WITH JEFFREY GALION INC. RECEIVING AWARD FOR SIX GRADERS AND HUBER RECEIVING AWARD FOR FOUR. HUBER REFUSED TO EXTEND ITS BID ACCEPTANCE PERIOD AND ITS BID EXPIRED BEFORE THE RESOLUTION OF THE PROTEST. THEREFORE, IF AN AWARD IS MADE TO GALION FOR THE SIX GRADERS IT OFFERED TO FURNISH, THE REMAINING FOUR WILL HAVE TO BE RELET TO COMPETITION.

DSA ADVISES THAT GALION DID NOT ENTER IN CLAUSE B11 (QUALIFIED END PRODUCTS) OF ITS BID EITHER THE APPLICABLE OFFERED ITEM NAME OR QUALIFIED PRODUCT TEST NUMBER. THE IFB PROVIDED THAT FAILURE TO ENTER SUCH INFORMATION ON THE BID WOULD REQUIRE ITS REJECTION. WE HAVE HELD PREVIOUSLY THAT A BIDDER'S FAILURE TO DO SO DOES NOT, HOWEVER, NECESSARILY RENDER ITS BID NONRESPONSIVE. 45 COMP. GEN. 397, 400 (1966); B-158197, APRIL 5, 1966. THE PRESENT IFB CALLS FOR A TYPE I, SIZE 5, ROAD GRADER TO BE BUILT IN ACCORDANCE WITH FEDERAL SPECIFICATION 00-G-630D AND LISTED ON QUALIFIED PRODUCTS LIST (QPL) 00 G-630-9. AND DSA DOES NOT CONTEND THAT THE ITEM OFFERED BY GALION FAILS TO COMPLY WITH THE SPECIFICATION OR THAT GALION DOES NOT HAVE SUCH AN ITEM LISTED ON QPL 00-G-630-9. ACCORDINGLY, SINCE THE SPECIFICATION, THE QPL NUMBER AND THE TYPE AND SIZE GRADER REQUIRED ARE ALL KNOWN TO DSA AND IT IS ALSO KNOWN THAT GALION IS THE MANUFACTURER RATHER THAN A MERE SUPPLIER OF THE ITEM, THE DSA EXAMINATION OF QPL 00 G-630-9 CAN ASCERTAIN THE APPLICABLE ITEM NAME (GALION MODEL NUMBER) AND THE QPL TEST NUMBER FOR BID EVALUATION PURPOSES. THEREFORE, THE FAILURE OF GALION TO PROVIDE ITS ITEM NUMBER AND ITS QPL TEST NUMBER IS A MINOR IRREGULARITY WHICH MAY BE WAIVED.

HOWEVER, THE GALION MANUFACTURING COMPANY, DIVISION OF JEFFREY GALION INC., WAS NOT LISTED ON THE QPL FOR THE GRADERS WHICH WERE BEING PROCURED ON A QPL BASIS. RATHER THE APPLICABLE QPL LISTS GALION IRON WORKS & MFG. CO., GALION, OHIO, AS THE QUALIFIED MANUFACTURER. THE LATTER COMPANY WAS A DIVISION OF JEFFREY GALION INC., AN OHIO CORPORATION.

EFFECTIVE APRIL 1, 1973, JEFFREY GALION INC. CHANGED ITS NAME TO JEFLION INC., FORMED A NEW DELAWARE CORPORATION UNDER THE OLD NAME OF JEFFREY GALION INC., AND TRANSFERRED ALL ITS ASSETS TO THE NEWLY FORMED DELAWARE CORPORATION. JEFFREY GALION INC. IS NOW A WHOLLY OWNED SUBSIDIARY OF JEFLION.

MOREOVER, THE GALION IRON WORKS & MFG. CO., WHICH BECAME A DIVISION OF THE DELAWARE-BASED JEFFREY GALION INC., CHANGED ITS TRADENAME, PRIOR TO BIDDING, TO GALION MANUFACTURING COMPANY. THUS, GALION MANUFACTURING CO., A DIVISION OF JEFFREY GALION INC., WAS STATED AS THE NAME OF THE BIDDER.

THE NOTICE - QUALIFIED END PRODUCTS CLAUSE (ARMED SERVICES PROCUREMENT REGULATION 1-1107.2(A)), INCLUDED IN THE IFB, STATES:

ANY CHANGE IN LOCATION OR OWNERSHIP OF THE PLANT AT WHICH A PREVIOUSLY APPROVED PRODUCT IS, OR WAS, MANUFACTURED REQUIRES RE EVALUATION OF THE QUALIFICATION. SUCH RE-EVALUATION MUST BE ACCOMPLISHED PRIOR TO THE BID OPENING DATE IN THE CASE OF ADVERTISED PROCUREMENTS AND PRIOR TO THE DATE OF AWARD IN THE CASE OF NEGOTIATED PROCUREMENTS. FAILURE OF OFFERORS TO ARRANGE FOR SUCH RE-EVALUATION SHALL PRECLUDE CONSIDERATION OF THEIR OFFERS.

WE HAVE STATED GENERALLY THAT THE DETERMINATION AS TO WHETHER REQUALIFICATION BY A PARTICULAR FIRM IS REQUIRED BECAUSE OF CHANGED CIRCUMSTANCES IS A QUESTION FOR THE AGENCY RESPONSIBLE FOR QUALIFICATION RATHER THAN OUR OFFICE. SEE B-176159, JANUARY 24, 1973. HOWEVER, IN SITUATIONS NOT REVOLVING AROUND THE TECHNICAL ASPECTS OF MANUFACTURE, OUR OFFICE WILL REVIEW AN AGENCY DECISION TO DETERMINE WHETHER THE DECISION WAS FOUNDED ON A REASONABLE BASIS.

IN B-161414, SEPTEMBER 5, 1967, WE CONCURRED WITH AN AGENCY DETERMINATION THAT UNDER THE PRIOR VERSION OF ASPR 1-1107.2(A), CHANGES IN BOTH OWNERSHIP AND MANAGEMENT AT A PLANT PRODUCING A QUALIFIED PRODUCT NEED NOT RESULT IN THE LOSS OF PRODUCT QUALIFICATION. SINCE THAT DECISION, HOWEVER, THE RELEVANT ASPR PROVISION HAS BEEN AMENDED TO REQUIRE REEVALUATION OF THE QUALIFICATION WHERE "OWNERSHIP" CHANGES. REEVALUATION WOULD SEEM TO BE NECESSARY BECAUSE, WHERE THERE IS A CHANGE IN OWNERSHIP, THERE IS A POSSIBILITY THAT WITH NEW MANAGEMENT THERE MAY BE A CHANGE IN QUALITY CONTROLS AND PROCEDURES OF THAT NATURE. THUS, REEVALUATION IS APPROPRIATE IN SITUATIONS WHERE A CHANGE IN THE CIRCUMSTANCES OF MANUFACTURE, SUCH AS THE SALE OF A PLANT, IS NOT MERELY A CHANGE IN FORM, BUT RATHER IS ONE IN SUBSTANCE. WHERE THERE IS MERELY A TRANSFER OF TITLE TO THE PLANT FACILITY AND A CHANGE IN A CORPORATE NAME WITH NO ACCOMPANYING CHANGE IN EMPLOYEES, PRODUCTS, MANUFACTURING PROCESSES, LOCATION, OR MORE, AS IN THE PRESENT CASE, THE REEVALUATION WOULD BE A USELESS EXERCISE.

ON THIS POINT, THEREFORE, THE PROTEST IS SUSTAINED. ALTHOUGH THE BIDDER WAS NONRESPONSIVE TO ASPR 1-1107.2(A), IT WOULD BE AN OVERLY TECHNICAL APPLICATION TO APPLY THE PROVISION TO A FORMAL RATHER THAN A SUBSTANTIVE CHANGE. ACCORDINGLY, IT IS RECOMMENDED THAT THE BID OF GALION MANUFACTURING COMPANY BE CONSIDERED FOR AWARD.

WITH REGARD TO THE PROTESTOR'S CONTENTION REGARDING THE SOLICITATION'S PROVISION FOR COMMERCIAL MANUALS, WE NOTE THAT THE MANUALS WHICH WERE SUPPLIED WITH THE BID WERE DETERMINED TO BE ACCEPTABLE. THEREFORE, THE PROTEST AGAINST THE PROVISION IS ACADEMIC.

HOWEVER, SINCE THERE HAVE BEEN OTHER PROTESTS REGARDING THE PROVISION, OUR OFFICE OFFERS THE OBSERVATIONS THAT FOLLOW.

AFAD-71-531-(13), INCLUDED IN THE IFB SCHEDULE, PROVIDED:

COMMERCIAL TECHNICAL MANUALS. *** THE BIDDER SHALL SUBMIT, WITH HIS BID OR PROPOSAL, TWO COPIES OF THE COMMERCIAL MANUAL HE IS OFFERING FOR EVALUATION BY THE GOVERNMENT IN ORDER TO DETERMINE WHETHER THE MANUAL MEETS THE CRITERIA FOR EXISTING COMMERCIAL MANUALS CITED IN SPECIFICATION MIL-M-7298. THE CONTRACTING OFFICER IN CONJUNCTION WITH THE CONCERNED ORGANIZATIONS RESERVES THE RIGHT TO DETERMINE THE ADEQUACY OF EXISTING COMMERCIAL MANUALS SUBMITTED USING THE MIL-M-7298 CRITERIA. *** IN THE EVENT BIDDER COMMERCIAL MANUAL REQUIRES SUPPLEMENTAL DATA IN ACCORDANCE WITH PARAGRAPH 3.2.2, MIL-M-7298, THE SUPPLEMENTAL DATA WILL BE SUBMITTED TO THE PROCURING ACTIVITY FOR APPROVAL OR REJECTION. ***

*** IF IN THE EVALUATION OF THE CONTRACTOR'S COMMERCIAL MANUALS BY THE GOVERNMENT IT IS DETERMINED THE MANUALS DO NOT MEET THE REQUIREMENTS FOR COMMERCIAL DATA IN MIL-M-7298, THE BIDDER WILL BE CONSIDERED NONRESPONSIVE

IT IS APPARENT FROM THE FOREGOING QUOTATION THAT, IF THE COMMERCIAL MANUALS OFFERED FOR EVALUATION DO NOT MEET THE REQUIREMENTS FOR COMMERCIAL DATA IN MIL-M-7298, THE BIDDER IS TO BE CONSIDERED NONRESPONSIVE. HOWEVER, IT DOES NOT APPEAR FROM THE QUOTED LANGUAGE THAT THE PURPOSE FOR THE SUBMISSION OF MANUALS WAS TO FIX THE BIDDER'S OBLIGATION UNDER THE CONTRACT, BUT RATHER TO DETERMINE WHETHER PROPOSED MANUALS MET THE MIL-M- 7298 CRITERIA FOR MANUALS. WE NOTE IN THAT REGARD THAT THE AFAD DID NOT REQUIRE THE PRECISE SUPPLEMENTAL INFORMATION BE INDICATED, BUT ONLY AN "OUTLINE" OF THE DATA. IN THAT REGARD, MIL-M-7298C, INCLUDED IN THE IFB, STATES IN PARAGRAPH 6.2 THAT:

*** THE SUCCESSFUL BIDDER'S CONTRACT FOR THE EQUIPMENT WILL STATE WHETHER HIS MANUAL IS SATISFACTORY, SATISFACTORY IF SUPPLEMENTED, A MANUAL MUST BE PREPARED, OR HIS ORIGINAL QUOTE FOR A MANUAL WAS ACCEPTABLE. SUPPLEMENTARY DATA IS REQUIRED, DETAILS WILL BE PROVIDED AS TO WHAT INFORMATION SUCH A PUBLICATION SHALL CONTAIN.

NOTWITHSTANDING THE STATEMENT IN THE AFAD AS TO NONRESPONSIVENESS, THE MIL SPECIFICATION ON "MANUALS, TECHNICAL: COMMERCIAL EQUIPMENT" DOES NOT CONTEMPLATE BID REJECTION BASED ON INSUFFICIENCY OF MANUAL SAMPLES. RATHER, THE MIL SPECIFICATION PROVIDES THAT THE DETAILS OF MANUAL CONTENTS SHALL BE COVERED BY THE CONTRACT. IN THIS LIGHT, THE IFB MANUAL SUBMISSION PROVISION IS INFORMATIONAL IN NATURE SERVING TO CLARIFY FOR CONTRACT DEFINITION PURPOSES THE CONTENT AND MAKEUP OF TECHNICAL COMMERCIAL-TYPE MANUALS.

THE PORTION OF THE SCHEDULE PERTAINING TO TECHNICAL DATA READS IN PART:

CONTENT OF COMMERCIAL MANUALS: IF COMMERCIAL MANUALS ARE SUBMITTED WHICH DEPICT ITEMS OR FEATURES WHICH DEPART FROM SPECIFICATION REQUIREMENTS OR CONTAIN PROVISIONS AT VARIANCE WITH THOSE OF THIS SOLICITATION, SUCH MANUALS WILL NOT BE ACCEPTABLE; HOWEVER, THEY WILL NOT BE TREATED BY THE CONTRACTING OFFICER AS QUALIFYING THE BID OR DEVIATING FROM THE SOLICITATION REQUIREMENTS (UNLESS THE OFFEROR CLEARLY INDICATED IN HIS BID THAT DEVIATIONS ARE INTENDED). ***.

IT IS QUITE CLEAR FROM THE FOREGOING THAT COMMERCIAL MANUAL CONTENT WHICH MIGHT UNINTENTIONALLY DEVIATE FROM THE EQUIPMENT SPECIFICATIONS AFFORDS NO BASIS FOR BID REJECTION. IT SEEMS INCONSISTENT AS WELL AS PREJUDICIAL TO FAULT A BIDDER WHICH IS ALREADY BOUND BY ITS BID TO PRODUCE MANUALS MEETING MIL-M-7298 REQUIREMENTS AND EQUIPMENT SPECIFICATIONS, FOR COMMERCIAL MANUAL DEFICIENCIES IN FORMAT AND AT THE SAME TIME EXCUSE EQUIPMENT SPECIFICATION DEVIATIONS APPEARING IN THOSE MANUALS. THIS IS EVEN MORE SIGNIFICANT SINCE A BIDDER IS BOUND BY ITS BID TO COMPLY BOTH WITH THE EQUIPMENT SPECIFICATIONS AND THE COMMERCIAL MANUAL REQUIREMENTS OF MIL-M-7298.

IN VIEW OF THE FOREGOING, WE RECOMMEND THAT CONSIDERATION BE GIVEN TO AMENDING THE AFAD TO DELETE THE PROVISION THAT COMMERCIAL MANUALS SUBMITTED WITH THE BIDS WHICH DO NOT COMPLY WITH THE MILITARY SPECIFICATION WILL RENDER THE BIDS NONRESPONSIVE.

WE WOULD APPRECIATE ADVICE OF WHATEVER ACTION IS TAKEN ON OUR RECOMMENDATION.