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.