TITLE:  Phaostron Instrument & Electronic Company, B-284456, April 20, 2000
BNUMBER:  B-284456
DATE:  April 20, 2000
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Phaostron Instrument & Electronic Company, B-284456, April 20, 2000

Decision

Matter of: Phaostron Instrument & Electronic Company

File: B-284456

Date: April 20, 2000

Mary E. Shallman, Esq., Morrison & Foerster, for the protester.

Bette Reinhart for Aircraft Instruments Co., an intervenor.

Stephen Stastny, Esq., Defense Logistics Agency, for the agency.

Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that award was improper because contracting activity that approved
awardee's part for addition to qualified products list did not have approval
authority is denied, where contracting officer found part approval valid
based on consideration of information from cognizant activities, consistent
with his authority under 10 U.S.C. sect. 2319.

DECISION

Phaostron Instrument & Electronic Company protests the issuance of a
purchase order to Aircraft Instruments Company (AIC) under request for
quotations (RFQ)
No. SPO440-99-Q-W731, issued by the Defense Supply Center, Richmond (DSCR),
Defense Logistics Agency, for a quantity of pressure indicators. Phaostron
asserts that AIC's part was not properly included on the qualified products
list for this requirement.

We deny the protest.

The pressure indicators are a critical application item and, as indicated in
the RFQ, competition for the requirement was limited to firms whose items
were approved for the qualified products list (QPL) at the time of contract
award. RFQ at 3. At the time the RFQ was issued, only the protester and one
other firm were listed on the QPL. QPL-27190-9, Mar. 30, 1998. In response
to the solicitation, the agency received several quotations, including the
protester's and AIC's.

AIC's quotation was low and, based on an evaluation of all the quotations
under the agency's automated best value model technical rating scheme, was
determined to offer the best overall value to the government. Because AIC's
part was not listed on the most recent iteration of the QPL, however, the
contract specialist contacted DSCR's quality assurance specialist to
determine whether AIC's part was in fact approved for the manufacture of
this item. Contracting Officer's Statement at 3-4. After being contacted by
the agency, AIC furnished an August 13, 1996 letter from DSCR stating that,
based on test data that had been furnished by AIC, its part would be added
to the QPL. Id. at 4. The agency also contacted the cognizant personnel at
the Defense Supply Center, Columbus (DSCC), since that activity had been
indicated on the QPL as the one responsible for maintaining the QPL. Id. In
response to that query, DSCC advised that the firm's part was in fact
qualified, and that it would be added to the QPL. Id. Based on this
information, DSCR concluded that the AIC part was qualified, and awarded the
firm a purchase order on November 9, 1999. Phaostron challenged the award
decision in an agency-level protest, which was denied. Phaostron then filed
this protest in our Office.

Phaostron asserts that the award was improper because AIC's part has not
properly been approved for inclusion on the QPL. [1] The sole basis for
Phaostron's position is its assertion that DSCR lacks authority to approve
products for inclusion on this QPL; it claims that only Kelly Air Force Base
(Department of the Air Force), has this authority. [2] Phaostron concludes
that AIC was not eligible for award.

Phaostron's argument is without merit. The applicable statute, 10 U.S.C.
sect. 2319 (1998), is designed to encourage competition for products subject to
qualification requirements by providing prospective offerors an enhanced
opportunity to have their products qualified prior to the award of a
contract in a given acquisition. To that end, the statute affords
contracting officers the authority to find that a product meets (or will
meet) a qualification requirement by the time of contract award,

regardless of whether the item is listed on the QPL. 10 U.S.C. sect. 2319(c)(3);
Federal Acquisition Regulation sect.sect. 9.202(c), 9.206-1(c). Nothing in the
statute limits the contracting officer's authority to approve a product for
a procurement based on whether the product has been tested or approved by a
particular entity. Indeed, consistent with the statutory objective of
enhancing competition for products subject to a qualification requirement,
we have approved an agency's use of an alternate method of source
approval--a licensing agreement with the original equipment manufacturer--in
lieu of approval by an authorized agency activity. B.F. Goodrich Aerospace,
B-261561 et al., Sept. 18, 1995, 95-2 CPD para. 137 at 4.

The contracting officer's actions here were consistent with the statute. As
discussed, because the AIC part was not listed on the QPL at the time
quotations were submitted, the contracting officer consulted with the
cognizant quality assurance personnel at both DSCR and DSCC to determine
whether AIC had in fact met all applicable requirements for purposes of
being added to the QPL. The applicable personnel advised the contracting
officer that AIC had in fact passed all necessary requirements relating to
having its part added to the QPL; that the DSCR QPL panel had met and agreed
that AIC had met all requirements, Memorandum from the Chief,
Standardization Program Branch, DSCR (Aug. 13, 1996); and that, basically,
the firm's part had not been added to the QPL due to an administrative
oversight on the part of DSCC, the activity responsible for having this QPL
periodically printed. Contracting Officer's Statement at 8. Based on the
information provided, the contracting officer determined that AIC's part was
qualified, and awarded the purchase order based on that conclusion. Whether
or not DSCR has final approval authority for the QPL, there is no basis for
questioning this determination; [3] again, under 10 U.S.C. sect. 2319, the
propriety of a contracting officer's actions in this area are not dependent
upon whether a product has been approved by a particular agency entity. [4]

Phaostron cites our decision in 43 Comp. Gen. 839 (1964) for the proposition
that only the contracting activity designated as having authority to do so
may properly add a product to a QPL. Even if Phaostron's interpretation of
the decision is correct (we do not reach this question), it has no bearing
on the protest here. As discussed, the contracting officer's actions are
governed by 10 U.S.C. sect. 2319, which was promulgated in 1984, that is,
subsequent to our 1964 decision. We have already concluded that the agency's
actions here were proper under that statute.

The protest is denied.

Comptroller General
of the United States

Notes

1. In its comments responding to the agency report, Phaostron challenged its
and AIC's ratings under the agency's automated best value model (a system
that essentially generates a numeric rating for a firm's past performance).
The agency submitted a detailed response to the protester's assertion, and
the protester made no mention of the issue in its subsequent submission to
our Office. We therefore deem the issue abandoned. Packaging Strategies,
Inc., B-280814, Nov. 25, 1998, 98-2 CPD para. 120 at 5 n.2.

2. We point out that Phaostron does not object to the approval of AIC's part
from a substantive standpoint. It does not allege, for example, that there
was a deficiency in the test data submitted by AIC for purposes of
demonstrating its compliance with the qualification requirement. There also
is nothing in the record to suggest that the part did not satisfy all
qualification requirements.

3. The record actually supports the agency's position that DSCR has the
authority to grant source approval for the item in question. In this regard,
the Department of the Air Force previously was responsible for maintaining
the QPL, but in 1995 it transferred preparing activity responsibility for
the QPL to DLA. Letter from the Chief, Engineering, Design,
Drafting/Standardization Section, San Antonio Air Logistics Center, to the
Commander, Defense General Supply Center (Dec. 12, 1995). While under the
terms of this letter the Air Force retained engineering and technical
responsibility for the documents, id., DLA explains (and the Air Force
concurs) that this entails only providing technical support for the QPL and
its associated specification; authority to approve a manufacturer's part for
inclusion on the QPL is vested in the preparing activity, here, DSCR.
Memorandum from Bill Lee, Defense Logistics Agency (Mar. 21, 2000).

4. Phaostron contends that it suffered competitive prejudice because it did
not know that AIC was competing--its pricing strategy was based on the
assumption that the competition would be limited to the one other firm
listed on the QPL. This is not a valid basis of protest. Not only did the
solicitation specifically provide that qualification was only required by
the time of award, RFQ at 3, but, as discussed,
10 U.S.C. sect. 2319 provides that a product may be approved by the contracting
officer even where it is not included on the applicable QPL. Thus, Phaostron
and other firms were on notice that firms not listed on the QPL could
compete for the requirement.