BNUMBER: B-271381
DATE: June 18, 1996
TITLE: Gentex Corporation
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Matter of:Gentex Corporation
File: B-271381
Date:June 18, 1996
Ruth E. Ganister, Esq., Rosenthal and Ganister, for the protester.
Jeffery Greer, Esq., and Charles J. Roedersheimer, Esq., Defense
Logistics Agency, for the agency.
Scott A. Ford, Esq., and Gerard F. Doyle, Esq., Doyle & Bachman, for
Scott Aviation, an intervenor.
Behn Miller, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest challenging award on ground that offered item does not
comply with qualified products list requirement is denied where the
solicitation did not require compliance with this requirement.
2. Protest challenging agency's post-award modification that
incorporated qualified products list, engineering data list, and
military cleaning and marking instruction into the contract is denied
since there is no showing that protester was prejudiced by the
agency's action.
DECISION
Gentex Corporation protests the award of a contract to Scott Aviation
under request for proposals (RFP) No. SPO920-95-R-X035, issued by the
Defense Logistics Agency (DLA), Defense Electronic Supply Center
(DESC), for two sizes of pilot pressure-demand breathing oxygen masks
and related facepiece assemblies, a bracket assembly, and guide cable
components. Gentex challenges the award to Scott on the ground that a
mandatory component of Scott's offered oxygen mask does not appear on
the applicable qualified products list (QPL). Gentex further protests
a post-award modification that in essence requires Scott to comply
with the QPL requirement along with certain engineering data list
(EDL) and military cleaning and marking instruction (CMI)
requirements.
We deny the protest.
The solicitation was issued on September 8, 1995, and required
offerors to propose unit prices and delivery schedules for eight
contract line item numbers (CLIN) for a base year with 2 option years.
Offerors were invited to complete two pricing schedules for each CLIN:
an "ALL-OR-NONE PRICING" schedule and/or a "STAND-ALONE PRICING"
schedule. In this regard, the RFP provided that the government could
make one award or "a combination of awards," depending on which price
or combination of prices--considered in context with the corresponding
delivery schedules--would result in the "lowest estimated overall
cost" to the agency.
Each CLIN corresponded to one of the specified oxygen masks or related
equipment assemblies. Of significance to this protest, the item
descriptions for the oxygen masks--CLIN Nos. 0001 and 0005--listed the
masks by their national stock number (NSN), as well as by Scott's and
Gentex's commercial and government entity number and individual
manufacturer part numbers. Except for the NSN and manufacturer
identification information, no technical description or technical
specifications were set forth, or incorporated by reference, in the
RFP. Offerors were not required to submit any type of sample for
inspection or testing.
By the September 28 closing date, only Scott and Gentex had submitted
proposals. By letter dated November 14, after concluding discussions
with each offeror, DESC requested best and final offers (BAFO). Both
Scott and Gentex responded that their initial proposals remained
unchanged. On November 30, DESC awarded a contract for CLIN Nos. 0001
through 0005 and CLIN No. 0007 (the two oxygen masks and related
facepiece assemblies) to Scott. Gentex received a contract award for
CLIN Nos. 0006 and 0008 (the bracket assembly and guide cable
components).
On January 15, 1996, DESC notified Gentex of the Scott award. On
January 26, Gentex attended an agency debriefing and asked DESC
whether Scott's offered mask contained a mandatory QPL component--a
combination inhalation/exhalation valve which controls the mask's
oxygen flow. Gentex also asked DESC whether Scott's offered mask
complied with an Air Force EDL, which--in addition to recommending QPL
component compliance--sets forth other preferred technical
specifications for the mask being procured here. Finally, Gentex
asked DESC whether Scott's offered mask adhered to CMI No. 794-0858,
which sets forth recommendations for cleaning, handling and storing
life support oxygen breathing devices and component parts.
In response to Gentex's questions, the contracting officer advised the
protester that if Scott's proposed mask did not contain the QPL
inhalation/exhalation valve component or did not otherwise comply with
the EDL or CMI requirements, the agency would probably terminate the
contract. Thereafter, by facsimile dated February 16, the contracting
officer's supervisor contacted Scott and requested a "no-cost
cancellation" of the awarded contract.
Apparently, at the time of the debriefing and during preparation of
its first termination request, the contracting officer and her
supervisor believed that the QPL, EDL, and CMI requirements were terms
of the solicitation. However, shortly after discussing the matter
with Scott, the agency discovered that contrary to its initial
impression, the RFP did not contain or otherwise incorporate any QPL,
EDL or CMI requirements.
On February 27, Gentex contacted the contracting officer to determine
whether Scott's contract had been terminated. During this telephone
conversation, the contracting officer advised Gentex that termination
appeared unlikely. On March 7, Gentex filed this protest at our
Office. Shortly thereafter, by agreement dated March 19, and by means
of a formal contract modification executed on April 12, Scott agreed
to perform the contract in accordance with the QPL, EDL and CMI
criteria at no additional cost to the government. In this regard,
Scott will demonstrate its QPL and EDL compliance by means of first
article testing.
PROTESTER'S POSITION
Although there is no question that the RFP does not expressly set
forth the QPL, EDL or CMI criteria, Gentex nonetheless argues that the
RFP effectively incorporated the QPL criterion as a result of its
reference to a master solicitation which sets forth various QPL
provisions. Gentex also argues that since the agency identified each
mask by its designated NSN, the underlying NSN data and referenced
military specifications--requiring QPL compliance--is automatically
incorporated as a mandatory term of the RFP. Finally, Gentex objects
to the agency's post-award execution of a modification incorporating
the omitted EDL and CMI requirements.
DISCUSSION
Interpretation of the RFP
First, there is no basis for Gentex's argument that this RFP
incorporated the master solicitation's QPL provisions. Under the DESC
master solicitation method, suppliers are given a lengthy master
solicitation that contains standard contract provisions, to use in
conjunction with subsequent individual solicitations and contracts,
which are streamlined documents that specifically incorporate by
reference pertinent standard terms, paragraphs and conditions set
forth in the master solicitation. See generally Federal Acquisition
Regulation (FAR) sec. 14.203-3 and 15.408(d); Sonetronics, Inc.,
B-237267, Feb. 12, 1990, 90-1 CPD para. 178.
In this case, although the RFP referred to the master solicitation, it
did so by advising offerors that only those paragraphs from the
master solicitation which were referenced in the RFP were applicable.
Specifically, the cover page of the RFP provided:
"This Individual Solicitation (IS) must be read in conjunction
with the DESC Master Solicitation (MS). This IS incorporates the
full text of the paragraphs referenced herein of the DESC MS
dated February 1992, and Amendment One, dated April 1992."
(Emphasis added.)
In light of the highlighted language, we think it clear that absent an
express reference to or restatement in the RFP of a master
solicitation provision, no term or clause of the master solicitation
applied to this procurement.
Second, the agency's use of the NSN identifications in the RFP could
not have had the effect of incorporating the QPL requirement as a
mandatory term in this solicitation. The QPL is a qualification
requirement. Although qualification requirements are considered to be
for the benefit of the government, see Goodyear Tire & Rubber Co., 72
Comp. Gen. 28 (1992), 92-2 CPD para. 315, recon. denied, Varec
N.V.--Recon., B-247363.7, Mar. 23, 1993, 93-1 CPD para. 259, because
qualification requirements are inherently restrictive, an agency may
only use such provisions where it complies with certain notice
requirements imposed by the FAR. Under the FAR, an agency which
chooses to impose a qualification requirement must prepare a written
justification for the requirement, FAR sec. 9.202(a)(1); provide offerors
all requirements they must satisfy to become qualified, FAR sec.
9.202(a)(2); and provide an opportunity for qualification before award
by publishing a notice in the Commerce Business Daily. FAR sec. 9.205.
Finally, when an acquisition includes a component that is subject to a
qualification requirement, FAR sec. 9.206-1(d) and 9.206-2 require
contracting officers to insert the "Qualification Requirements"
provision at FAR sec. 52.209-1 in the solicitation.
If these notice requirements are not complied with, and particularly
if FAR sec. 52.209-1 is not expressly incorporated in the solicitation,
an agency may not enforce any qualification provisions. See FAR sec.
9.206-1(a); Warren Pumps, Inc., B-258710, Feb. 13, 1995, 95-1 CPD para.
79, aff'd, B-258710.2, July 14, 1995, 95-2 CPD para. 20; Comspace Corp.,
B-237794, Feb. 23, 1990, 90-1 CPD para. 217.
In this case, the RFP did not contain any reference to FAR sec. 52.209-1.
Under these circumstances, we see no basis for Gentex's interpretation
that the RFP required the awardee to provide an oxygen mask which
complied with the QPL criterion argued for by the protester.[1]
In any event, even if it could be argued that the RFP somehow
incorporated the QPL requirement, Scott's offer on its face took no
exception to any requirements that were imposed by the solicitation.
Therefore, the agency had no basis for rejecting it on this ground.
See E. W. Bliss Co., B-255648.3, Apr. 26, 1994, 94-1 CPD para. 280 (agency
properly determined that awardee's offer included new crankshaft
component since proposal did not state otherwise).
Post-Award Contract Modification
Gentex contends that instead of executing a post-award modification,
the agency should have canceled the RFP as defective and resolicited
the requirement with the recommended QPL, EDL and CMI provisions.
Gentex contends that it was prejudiced by the post-award modification
since "by virtue of the agency's action [Gentex] lost a three year
procurement with an estimated contract value of approximately 2.3
million dollars."
To the extent this protest ground is reviewable by our Office and is
not a matter of contract administration, see 4 C.F.R. sec. 21.5(a)
(1996), we point out that competitive prejudice is an essential
element of every viable protest, and where no reasonable possibility
of prejudice is shown or is otherwise evident from the record, our
Office will not sustain a protest, even if a deficiency in a
procurement is apparent. See EEV, Inc., B-261297; B-261297.2, Sept.
11, 1995, 95-2 CPD para. 107.
At the time it competed for this award, the protester believed that
the RFP contained the QPL, EDL, and CMI requirements. Thus, Gentex
actually competed under the impression that the more restrictive terms
applied--the same terms which, in the event we sustained Gentex's
protest against the post-award modification, would be incorporated in
the ensuing solicitation. This being the case, we see no basis to
conclude from this record--nor does Gentex argue--that its pricing or
delivery schedule would change in the event of a resolicitation.
Moreover, the protester does not suggest that Scott's lower prices for
the line items in question resulted from its intention to furnish a
non-QPL valve or to otherwise avoid the EDL and CMI requirements.
Accordingly, on this record we can only conclude that Gentex was not
prejudiced by the agency's post-award modification.
The protest is denied.
Comptroller General
of the United States
1. In its protest, Gentex also contends that the QPL requirement was a
definitive responsibility criterion which the agency improperly
waived. Since we conclude that the QPL requirement was not a part of
the solicitation, we will not consider this argument further; in any
event, solicitation qualification requirements do not involve matters
of responsibility. See Goodyear Tire & Rubber Co., supra.