B-205261, B-205261.2, MAR 1, 1982

B-205261, B-205261.2, MAR 1, 1982

DIGEST: 1. PROTEST THAT INSPECTION REQUIREMENT WHICH PERMITS GOVERNMENT INSPECTION OF SUPPLIES AT POINT OF MANUFACTURE OR AT ANY OTHER ACCEPTABLE LOCATION DISCRIMINATES AGAINST SUPPLIERS OF DOMESTIC GOODS IS UNTIMELY FILED WHERE SOLICITATION AND DOCUMENTS INCORPORATED THEREIN SET FORTH THE INSPECTION REQUIREMENT AND PROTEST IS FILED FOUR MONTHS AFTER BID OPENING. 2. CONTENTION THAT LOW BIDDER'S ENTRY OF THE PRODUCTION POINT WAS IMPROPER BECAUSE IT DID NOT SPECIFY PRECISE FOREIGN MANUFACTURING FACILITIES CONCERNS BIDDER RESPONSIBILITY. SINCE OUR OFFICE DOES NOT REVIEW A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY EXCEPT IN CIRCUMSTANCES NOT PRESENT HERE, WE WILL NOT CONSIDER THIS CONTENTION.

GENERAL INSTRUMENT CORPORATION LAMP DIVISION:

GENERAL INSTRUMENT CORPORATION LAMP DIVISION PROTESTS THE AWARD OF CONTRACTS TO JKL COMPONENTS CORPORATION AND MICRO LAMPS, INC. UNDER SOLICITATION 7CF-52114/C5/7XB ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) FOR MINIATURE LAMPS. WE DISMISS THE PROTEST.

BIDS WERE OPENED ON JUNE 16, 1981. JKL AND MICRO LAMPS SUBMITTED THE APPARENT LOW BIDS ON ITEMS 165 AND 171, RESPECTIVELY, AND GENERAL INSTRUMENT SUBMITTED THE NEXT LOW BIDS FOR THE TWO ITEMS. FOLLOWING THE ADDITION OF THE REQUISITE BUY AMERICAN ACT DIFFERENTIAL TO THEIR BIDS (BOTH FIRMS OFFERED TO SUPPLY LAMPS OF FOREIGN MANUFACTURE), JKL AND MICRO LAMPS REMAINED THE LOW BIDDERS ON THE RESPECTIVE ITEMS. GSA AWARDED CONTRACTS TO JKL AND MICRO LAMPS ON SEPTEMBER 29.

GENERAL INSTRUMENT CONTENDS THAT THE GSA EMPLOYS A DISCRIMINATORY INSPECTION STANDARD UNDER WHICH AMERICAN MANUFACTURERS ARE REQUIRED TO PERMIT INSPECTION OF MANUFACTURING FACILITIES WHILE SUPPLIERS OF FOREIGN MANUFACTURED PRODUCTS NEED ONLY PERMIT INSPECTION OF FINISHED PRODUCTS IN WAREHOUSES. THE INSPECTION PROCEDURE IS CLEARLY DELINEATED BY THE SOLICITATION AND GSA FORM 1424, INCORPORATED IN THE SOLICITATION BY REFERENCE. BIDDERS ARE REQUIRED TO SPECIFY THE NAME AND ADDRESS OF A MANUFACTURING FACILITY, WAREHOUSE, OR ANY OTHER ACCEPTABLE FACILITY LOCATED IN THE UNITED STATES FOR THE INSPECTION OF THE GOODS TO BE SUPPLIED. THE INSPECTION POINT THUS NEED NOT BE THE SAME AS THE PLACE OF MANUFACTURE.

OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS BASED UPON ALLEGED SOLICITATION IMPROPRIETIES WHICH ARE APPARENT PRIOR TO THE BID OPENING DATE BE FILED WITH OUR OFFICE OR THE PROCURING AGENCY PRIOR TO BID OPENING. 4 C.F.R. SEC. 21.2(B)(1) (1981). GENERAL INSTRUMENT DID NOT RAISE THIS MATTER UNTIL OCTOBER 20, FOUR MONTHS AFTER BID OPENING AND NEARLY THREE WEEKS AFTER THE AWARD OF THE CONTRACTS, WHEN IT FILED A PROTEST WITH OUR OFFICE. SINCE THE COMPLAINT IS DIRECTED AT THE INSPECTION PROVISION OF THE SITUATION, THIS CONTENTION IS UNTIMELY AND WILL NOT BE CONSIDERED ON ITS MERITS.

GENERAL INSTRUMENT ALSO CONTENDS THAT JKL'S BID WAS DEFECTIVE BECAUSE JKL ENTERED AS THE PRODUCTION POINT "VARIOUS LOCATIONS IN JAPAN AND SOUTH KOREA" WITHOUT SPECIFYING THE EXACT LOCATION OF EACH MANUFACTURING SITE. THE PROTESTER CONTENDS THAT BECAUSE OF THE FAILURE TO SPECIFY EACH SITE, THE GSA CANNOT ASSURE ITSELF OF A RELIABLE FLOW OF LAMPS AND A CONSISTENT QUALITY STANDARD.

GENERALLY, THE DESIGNATION OF THE PLACE OF PRODUCTION AND THE QUESTION OF WHETHER A BIDDER IS CAPABLE OF RELIABLY SUPPLYING GOODS OF ADEQUATE QUALITY ARE MATTERS OF RESPONSIBILITY. KECO INDUSTRIES, B-1999934, SEPTEMBER 22, 1980, 80-2 CPD 219. THE CONTRACTING OFFICER FOUND JKL TO BE RESPONSIBLE IN THIS REGARD. WE DO NOT CONSIDER A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY EXCEPT WHERE THERE IS A SHOWING OF FRAUD OR BAD FAITH OR WHERE THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE BEEN APPLIED. ROBINSON INDUSTRIES, INC., B-194157, JANUARY 8, 1980, 80-1 CPD 20. NEITHER EXCEPTION APPEARS TO EXIST HERE. THEREFORE, WE WILL NOT CONSIDER THIS CONTENTION.

THE PROTEST IS DISMISSED.