B-179845, MAY 7, 1974

B-179845, MAY 7, 1974

1. THERE IS NO BASIS TO QUESTION AWARD TO LOW BIDDER WHOSE STATUS AS A QUALIFIED SOURCE WAS NOT PUBLISHED IN CURRENT QPL SINCE RECORD SHOWS THAT ITS PRODUCT WAS PREVIOUSLY QUALIFIED IN ACCORDANCE WITH APPLICABLE MILITARY SPECIFICATIONS. 2. PROTEST AGAINST ABSENCE OF IFB DATA PROVISIONS IS UNTIMELY AND WILL NOT BE CONSIDERED UNDER GAO BID PROTEST PROCEDURES WHEN PROTEST WAS FILED BOTH WITH GAO AND PROCUREMENT ACTIVITY AFTER BID OPENING.

TO ASTRONAUTICS CORP. OF AMERICA:

ASTRONAUTICS CORP. OF AMERICA (ASTRONAUTICS) PROTESTED THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER SOLICITATION NO. F34601-74-B-0078, AS AMENDED, ISSUED ON SEPTEMBER 6, 1973, BY THE OKLAHOMA CITY AIR MATERIEL AREA, AIR FORCE LOGISTICS COMMAND, DIRECTORATE PROCUREMENT AND PRODUCTION, TINKER AIR FORCE BASE, OKLAHOMA. THE SOLICITATION WAS AN ADVERTISED PROCUREMENT FOR QUALIFIED PRODUCTS LIST (QPL) ARU-20/A REMOTE ALTITUDE INDICATORS TO BE MANUFACTURED IN ACCORDANCE WITH SPECIFICATION MIL-I- 27710B (USAF), FEBRUARY 9, 1968, AND AMENDMENT NO. 4 DATED MAY 17, 1971. BIDS WERE OPENED ON OCTOBER 9, 1973. NOTWITHSTANDING THE PROTEST, AWARD WAS MADE ON OR ABOUT JANUARY 7, 1974, TO LEAR SIEGLER, INC. (LEAR SIEGLER), THE LOWEST RESPONSIVE BIDDER AT A PRICE DIFFERENCE OF $38,505, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.8(B)(3)(II) BECAUSE OF THE CITED NECESSITY FOR PREVENTING UNDUE DELAY IN DELIVERY.

ASTRONAUTICS ARGUES THAT THE LEAR SIEGLER ARU-20/A HAD NOT PASSED ALL THE TESTS REQUIRED BY THE APPLICABLE MILITARY SPECIFICATIONS FOR QPL APPROVAL.

OUR REVIEW OF THE RECORD SHOWS THAT THE LEAR SIEGLER PART NO. 156578 01- 01, MODEL NO. 4003 AU, WAS APPROVED FOR USE WHEN PROCURED UNDER SPECIFICATION MIL-I-27710B, AMENDMENT NO. 4, DATED MAY 17, 1971 (ARU 20/A REMOTE ALTITUDE INDICATOR). THE APPROVAL WAS BASED UPON THE SATISFACTORY COMPLETION OF QUALIFICATION TESTS AS DETERMINED BY THE AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, AND THE EVALUATION OF THE LEAR SIEGLER CERTIFIED QUALIFICATION REPORT NO. 4003- 556, DATED JUNE 26, 1973. FORMAL NOTIFICATION OF APPROVAL WAS FURNISHED TO LEAR SIEGLER IN A JULY 6, 1973, LETTER FROM THE AIR FORCE, WHEREIN IT WAS STATED THAT THE LEAR SIEGLER APPROVED PART (NO. 156578 01-01, MODEL 4003 AU) WOULD BE INCLUDED IN THE NEXT ISSUE OF THE QUALIFIED PRODUCTS LIST, CONFIRMING LEAR SIEGLER AS A QUALIFIED SOURCE FOR THE PART UNDER THE APPLICABLE MILITARY SPECIFICATION. THUS, WHILE THE LEAR SIEGLER PRODUCT WAS NOT ON THE CURRENT QUALIFIED PRODUCTS LIST, IT WAS AN ELIGIBLE BIDDER WITHIN THE PURVIEW OF THE QPL CLAUSE SET OUT IN SECTION B-25 OF THE SOLICITATION. ASPR 1-1101(B) PROVIDES THAT:

"*** SUPPLIERS WHOSE PRODUCTS HAVE SUCCESSFULLY PASSED QUALIFICATION AND WHO FURNISHED EVIDENCE THEREOF ARE ELIGIBLE FOR AWARD ALTHOUGH NOT YET INCLUDED ON THE QPL."

ASTRONAUTICS FURTHER CONTENDS THAT THE SOLICITATION WAS INCOMPLETE BECAUSE IT OMITTED DATA REQUIREMENTS. IT ASSERTED THAT THE SOLICITATION DID NOT INCLUDE THE REQUIRED DD FORM 1423 (CONTROL DATA REQUIREMENTS LIST). THEREFORE, IT IS MAINTAINED THAT AN ESSENTIAL ELEMENT OF THE PROCUREMENT WAS MISSING, AND THUS THE TOTAL COST OF THE PROCUREMENT TO THE AIR FORCE COULD NOT BE DETERMINED. BY MAKING AN AWARD TO LEAR SIEGLER, IT WOULD BE NECESSARY FOR THE AIR FORCE, IN ASTRONAUTICS' VIEW, TO PROCURE DATA BY A SEPARATE PROCUREMENT AT ADDITIONAL COST.

IN SUPPORT OF THE DATA REQUIREMENTS ARGUMENT, REFERENCE WAS MADE TO CONTRACT F33657-68-C-1240, A NEGOTIATED PROCUREMENT AWARDED ON A SOLE SOURCE BASIS ON MAY 20, 1968, TO ASTRONAUTICS FOR IDENTICAL EQUIPMENT WHICH DID INCLUDE A DD 1423 FORM SETTING FORTH THE NEEDS FOR SUBMITTING EXTENSIVE DATA REQUIREMENTS INCLUDING SPECIFIC ITEMS OF ENGINEERING, MANAGEMENT, AND LOGISTICS DATA. IN THIS REGARD, IT IS MAINTAINED THAT THE DATA PREVIOUSLY ACQUIRED BY THE AIR FORCE UNDER THAT CONTRACT WAS APPLICABLE ONLY TO ASTRONAUTICS' EQUIPMENT AND COULD NOT BE USED FOR EQUIPMENT SUPPLIED BY ANOTHER MANUFACTURER. SINCE LEAR SIEGLER HAD NOT PREVIOUSLY MANUFACTURED THE EQUIPMENT, IT IS ASSERTED THAT THE AIR FORCE WOULD ALSO NEED SUCH DATA FROM THAT COMPANY.

WE NOTE FROM THE RECORD THAT ASTRONAUTICS PROTESTED THE ABSENCE OF IFB DATA PROVISIONS BY TELEGRAM OF OCTOBER 10, 1973, TO THE PROCUREMENT ACTIVITY, AND BY LETTER OF OCTOBER 23, 1973, TO OUR OFFICE. THESE PROTESTS WERE MADE AFTER THE PUBLIC OPENING OF BIDS. UNDER SECTION 20.2 OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, PROTESTS BASED ON ALLEGED IMPROPRIETIES IN AN IFB MUST BE FILED PRIOR TO BID OPENING. IT IS FURTHER PROVIDED THAT IF THE PROTEST HAS BEEN FILED INITIALLY WITH THE PROCUREMENT ACTIVITY, ANY SUBSEQUENT PROTEST TO GAO FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE ACTION WILL BE CONSIDERED IF THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY.

ASTRONAUTICS' PROTEST TO THE PROCUREMENT ACTIVITY WAS UNTIMELY SINCE IT WAS NOT FILED UNTIL AFTER BID OPENING. IN VIEW OF THESE CIRCUMSTANCES, ITS PROTEST REGARDING THE ABSENCE OF DATA PROVISIONS IN THE IFB IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.