B-180101, APR 17, 1974

B-180101, APR 17, 1974

PROTEST ADDRESSED SOLELY TO THE CONTENT OF SPECIFIC CLAUSES IN THE CONTRACT SHOULD HAVE BEEN FILED PRIOR TO BID OPENING AS THE ALLEGED DEFICIENCIES IN THE CLAUSES WERE CLEARLY APPARENT PRIOR TO THAT DATE. FILING PROTEST APPROXIMATELY 7 WEEKS AFTER BID OPENING IS THEREFORE UNTIMELY.

TO D. MOODY & CO., INC.:

REQUEST FOR PROPOSALS (RFP) F41608-74-R-R309 WAS ISSUED ON AUGUST 31, 1973, BY SAN ANTONIO AIR MATERIAL AREA (SAAMA), DEPARTMENT OF THE AIR FORCE, FOR VALVES. THE SUBJECT VALVES WERE TO BE EITHER PARKER HANNIFIN CORP. PART NUMBER 5-1050-4M4N OR MCDONNELL DOUGLAS CORP. PART NUMBER 3394770. FURTHER, THESE VALVES WERE REQUIRED TO BE NEW, UNUSED, ABLE TO MEET THE APPLICABLE SPECIFICATION WITHOUT REWORK OR REFURBISHMENT OF ANY KIND.

THE RFP CONTAINED THE FOLLOWING CLAUSES (C-39 AND B-29):

"(A) THIS SOLICITATION HAS BEEN PREPARED TO INCLUDE TERMS AND CONDITIONS WHICH CONTEMPLATE FURNISHING NEW MANUFACTURED ITEMS TO THE GOVERNMENT. THE EVENT NEW, UNUSED, SURPLUS MATERIAL IS OFFERED IN RESPONSE TO THIS SOLICITATION, THE OFFEROR MUST NOTIFY THE PROCURING CONTRACTING OFFICER (PCO), IN WRITING, SEPARATE FROM THE CONTRACTOR'S OFFER, WITHIN A MINIMUM OF TEN CALENDAR DAYS PRIOR TO THE OFFER OPENING DATE SO THE PCO MAY CONSIDER AMENDING THE TERMS AND CONDITIONS OF THE SOLICITATION TO INCLUDE PROVISIONS FOR THE PURCHASE OF SURPLUS MATERIAL. OFFERS OF SURPLUS MATERIAL WHERE THE PCO WAS NOT NOTIFIED AT LEAST TEN CALENDAR DAYS PRIOR TO OFFER OPENING DATE MAY BE CONSIDERED NONRESPONSIVE AND MAY NOT BE CONSIDERED FOR AWARD.

"(B) THE OFFEROR WILL BE REQUIRED, UPON NOTIFICATION FROM THE PCO, TO SUBMIT SAMPLES FROM THE LOT OF MATERIAL FROM WHICH THE REQUIREMENT IS TO BE SATISFIED. THESE SAMPLES WILL BE SELECTED BY THE QUALITY ASSURANCE REPRESENTATIVE OF THE CONTRACT ADMINISTRATIVE OFFICE (CAO) SERVING THE OFFEROR'S FACILITY. THE SAMPLES SELECTED WILL BE SHIPPED AT THE OFFEROR'S EXPENSE PRIOR TO AWARD OF CONTRACT. SAMPLES MUST BE DELIVERED TO THE DESTINATION DESIGNATED IN THE SOLICITATION, AS AMENDED, WITHIN 15 CALENDAR DAYS AFTER ISSUANCE OF NOTIFICATION FROM THE PCO TO MAKE SHIPMENT. FAILURE OF THE OFFEROR TO DELIVER THE SAMPLES WITHIN 15 CALENDAR DAYS WILL BE CAUSE FOR REJECTION OF THE OFFER. THE OFFEROR WILL BE ADVISED OF APPROVAL/DISAPPROVAL OF SAMPLES SUBMITTED FOR GOVERNMENT TESTING WITHIN 35 DAYS AFTER RECEIPT BY THE GOVERNMENT. AMONG OTHER CONSIDERATIONS, THE ACCEPTABILITY OF THESE SAMPLES WILL DETERMINE THE GOVERNMENT'S SELECTION OF SUCCESSFUL CONTRACTOR. IF THE SAMPLES ARE DISAPPROVED, THE OFFEROR WILL BE CONTACTED BY THE PCO FOR DISPOSITION INSTRUCTIONS FOR THE SAMPLES. ALL SAMPLES RETURNED TO THE OFFEROR WILL BE RETURNED AT THE OFFEROR'S EXPENSE. IF THE OFFEROR IS SELECTED FOR AWARD, APPROVED SAMPLES WILL BE RETAINED BY THE GOVERNMENT AND CONSIDERED A PART OF THE QUANTITY OF ITEMS BEING PROCURED UNLESS THE SAMPLES ARE DESTROYED OR RENDERED UNSERVICEABLE AS A RESULT OF GOVERNMENT TESTING IN WHICH CASE THE OFFEROR WILL BE REQUIRED TO REPLACE THE ITEMS DESTROYED OR RENDERED UNSERVICEABLE IN TEST.

"(C) IN ANY EVENT, SAMPLES PROVIDED BY THE OFFEROR FOR GOVERNMENT TESTING UNDER THIS PROVISION ARE MADE AVAILABLE TO THE GOVERNMENT AT THE SOLE RISK OF THE OFFEROR, AT NO COST TO THE GOVERNMENT, AND THE GOVERNMENT WILL NOT BE HELD LIABLE IN ANY MANNER FOR DAMAGES TO, OR LOSS OF SUCH SAMPLES RESULTING FROM TESTING ACTIVITIES OR OTHERWISE.

"CONCURRENT WITH THE NOTIFICATION TO THE PCO THAT SURPLUS MATERIAL IS BEING OFFERED, THE OFFEROR WILL PROVIDE THE FOLLOWING CERTIFICATE (IF THE MATERIAL BEING OFFERED IS FORMER GOVERNMENT SURPLUS, THIS CERTIFICATE MUST BE PROVIDED IN ADDITION TO THE INFORMATION REQUIRED IN ASPR 1-1208, GOVERNMENT SURPLUS):

"THE UNDERSIGNED HEREBY CERTIFIES THAT THE MATERIAL TO BE FURNISHED IN RESPONSE TO SOLICITATION (INSERT SOLICITATION NUMBER) WAS MANUFACTURED BY THE ORIGINAL DESIGN MANUFACTURER (AND/OR) HIS APPROVED SOURCE. (INDICATE QUANTITIES OF EACH MANUFACTURER). THIS MATERIAL IS NEW, UNUSED, MEETS APPLICABLE SPECIFICATIONS, AND IS OFFERED WITHOUT REWORK OR REFURBISHMENT OF ANY KIND. THE UNDERSIGNED FURTHER CERTIFIES THAT NO CHANGES HAVE BEEN MADE TO THE MATERIALS BEING OFFERED. THE QUANTITIES OF MATERIAL OFFERED ARE AVAILABLE FOR SHIPMENT. THE MATERIAL (IS/IS NOT) IN THE ORIGINAL, UNBROKEN CONTAINER WHICH IS DATED (SHOW PACKAGING DATE, IF KNOWN, OR INDICATE THE TYPE AND CONDITION OF PACKAGING). THE OFFEROR (DOES/DOES NOT) HAVE IN HIS POSSESSION THE DRAWINGS/SPECIFICATIONS APPLICABLE TO THE ITEMS) OFFERED. (IF DRAWINGS/SPECIFICATIONS ARE AVAILABLE INDICATE THE ISSUE LETTER AND DATE OF SUCH DRAWINGS/SPECIFICATIONS). THE OFFEROR (DOES/DOES NOT) AGREE TO RELEASE DRAWINGS/SPECIFICATIONS FOR GOVERNMENT QUALITY ASSURANCE USE UPON REQUEST OF THE PCO. THE OFFEROR (WILL/WILL NOT) RESPOND TO THIS SOLICITATION IN THE EVENT TESTING OF SAMPLES BY THE GOVERNMENT WILL RESULT IN DESTRUCTION OF THE SAMPLES OR RENDER THE SAMPLES UNSERVICEABLE."

THE DATE FOR RECEIPT OF PROPOSALS ON THE SUBJECT SOLICITATION WAS OCTOBER 1, 1973. D. MOODY & CO., INC. (MOODY), SUBMITTED A LETTER DATED SEPTEMBER 25, 1973 (LESS THAN 10 DAYS PRIOR TO THIS DATE), INFORMING THE AIR FORCE OF ITS OFFER OF SURPLUS PARTS. MOODY IN ITS LETTER ACCEPTED ALL TERMS AND CONDITIONS STATED IN THE SOLICITATION. THE LETTER OFFER DID NOT, HOWEVER, CONTAIN THE CERTIFICATION REQUIRED BY CLAUSE B-29.

MOREOVER, AIR FORCE TECHNICAL PERSONNEL INDICATED THAT THE ITEM IN QUESTION CONTAIN CERTAIN "CURE-DATED COMPONENTS" (SYNTHETIC RUBBER MATERIAL) THAT CANNOT BE OLDER THAN 12 QUARTERS (3 YEARS). THEREFORE, ANY SUCH ITEM WHICH MIGHT BE IN THE HANDS OF A SURPLUS DEALER, SUCH AS MOODY, WOULD REQUIRE REFURBISHMENT. AS SUCH, THE AIR FORCE DOES NOT BELIEVE THAT THE SURPLUS VALVES OFFERED BY MOODY WOULD MEET THE SPECIFICATIONS WITHOUT REWORK OR REFURBISHMENT.

FOR THE REASONS NOTED ABOVE, MOODY'S OFFER WAS REJECTED AND AWARD WAS MADE TO PARKER HANNIFIN CORP. ON NOVEMBER 14, 1973. MOODY, THEREAFTER, FILED ITS PROTEST WITH OUR OFFICE.

IN A FEBRUARY 15, 1974, LETTER FROM THE PRESIDENT OF MOODY, IT IS STATED THAT:

"MY PROTEST IS ADDRESSED SOLELY TO THE CONTENTS OF THOSE CLAUSES (C 39 AND B-29) WHICH I PROPOSE TO DEMONSTRATE ARE ARBITRARY, CAPRICIOUS, IN CONTRAVENTION OF ASPRS AND AGAINST THE BEST INTERESTS OF THE GOVERNMENT.

HOWEVER, SECTION 20.2(A) OF OUR BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20, ET SEQ., STATES THAT:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. ***"

THE ALLEGED DEFICIENCIES IN THE CLAUSES COMPLAINED OF BY MOODY WERE CLEARLY APPARENT PRIOR TO OCTOBER 1, 1973, THE DATE FOR RECEIPT OF PROPOSALS; YET, MOODY DID NOT FILE ITS PROTEST WITH OUR OFFICE UNTIL NOVEMBER 20, 1973.

CONSEQUENTLY, WE MUST CONCLUDE THAT MOODY'S PROTEST IS UNTIMELY. SEE 52 COMP. GEN. 20 (1972); B-178609, DECEMBER 28, 1973; B-176692, DECEMBER 27, 1973; AND B-180153, DECEMBER 12, 1973. WE MUST, THEREFORE, DECLINE TO RULE ON THE MERITS OF MOODY'S PROTEST.

WE DO, HOWEVER, REFER THE PROTESTER TO OUR DECISION B-180053, APRIL 4, 1974, WHEREIN WE DISCUSS ANOTHER PROTEST BY IT RELATIVE TO THE SAME PROVISIONS WHICH IT PRESENTLY CHALLENGES.