ASO has rationalized its preclusion of bidders, other than manufacturers and authorized distributors, from competing on QPL procurements on its greater confidence that a manufacturer or authorized distributor will offer the required qualified product and its lack of similar confidence in bidders, such as Moody and Alden, who offer surplus products which have left the control of the Government, manufacturer, or the manufacturer's authorized distributor. ASO bases this lack of confidence in surplus products under QPL procurements on its lack of complete knowledge as to what happened to the QPL products once they have left the control of the "qualified" bidders or the Government (e.g., the products might have been abused or stored under adverse conditions), or as to the source of these products (e.g., they may have come from a batch of the product which was not qualified or they might have been sold as defective by the Government).

However, there is nothing in the QPL regulations which in any way precludes bids offering surplus material. Also, the IFB's did not specifically state that surplus material was not acceptable. It would seem, absent specific identification requirements in the IFB with which a bidder did not comply, that a particular bidder's inability to meet the contract requirements is a matter of contractor responsibility, which must be determined on the facts and circumstances of the specific case and the abilities and capabilities of the specific bidder, and which should not be determined with a "blanket" presumption of product unacceptability and a preclusion of a class of bidders from competition, especially considering that this presumption is based upon an erroneous interpretation of the relevant ASPR provisions. (Responsibility of bidders offering surplus material is discussed below.)

ASO has essentially created one standard for treating the bids of manufacturers and distributors, and another standard for treating the bids of other bidders (especially surplus dealers). Such a dual standard is nowhere sanctioned by the applicable regulations. With regard to a similar unstated dual standard which was applied by DSA in a protested procurement which was the subject of our decision in B-162931, February 21, 1968, we stated:

*** the principal administrative objection to the award to White is that the Government does not have data from which it can ascertain that the surplus Hartman parts offered by White are of the same quality as the Hartman parts offered by Hartman and other offerors. It is suggested that the surplus parts may have deteriorated in storage, may have been subjected to rough handling, may be from rejected lots, etc. However, these same conditions could very well exist in respect to the parts offered by the name brand manufacturer or other offerors of its products, and the Government apparently does not seek assurances from these offerors against these contingencies and apparently it would have no means of ascertaining any deficiencies, since admittedly it has no data which can be used for testing the parts.

*** Moreover, the RFP afforded sufficient protection and remedies to the Government respecting the furnishing and receipt of new and unused Government surplus property as would have afforded a basis for an award at a lower price to White.

Similarly, the QPL requirements in each of the IFB's in question here required intensive tests (both individual and sampling), whose purpose would seem to be to insure that the Government received an acceptable product meeting its needs. Therefore, so long as Moody and Alden can pass the acceptance tests, meet the QPL identification and informational requirements of the IFB, and receive an affirmative preaward survey, we do not believe that it could be reasonably found that the products Moody and Alden were offering did not meet the IFB QPL requirements, and we believe compliance with these requirements should restore ASO's confidence in the products being offered by such surplus dealers.

Sufficiency of Identification of QPL Product Offered

ASO also argues that Moody's bid under the IFB in B-180732 must be considered nonresponsive, since it failed to identify the applicable QPL test number under which the product Moody is offering is qualified. ASO considers that, without Moody furnishing this test number, the contracting officer cannot conclude that the product identified by Moody is the same part that was qualified by the product's manufacturer and that this omission cannot be waived as a minor informality. Where QPL products are to be procured, ASPR § 1-1107.2 (a) requires the use of appropriate language in the solicitation to give notice to potential bidders or offerors that only bids or proposals offering products qualified prior to bid opening or the award of a negotiated contract would be considered for award. This clause (section B-220 of each of the IFB's in question here) states in pertinent part:

NOTICE-QUALIFIED END PRODUCTS (1969 DEC)

Awards for any end items which are required to be qualified products will be made only when such items have been tested and are qualified for inclusion in a Qualified Products List identified below (whether or not actually included in the List) at the time set for opening of bids, or the time of award in the case of negotiated contracts. Offerors should contact the office designated below to arrange to have the products which they intend to offer tested for qualification.

The offeror shall insert the item name and the test number (if known) of each qualified product in the blank spaces below.

Item Name___.

Test Number.

Offerors offering products which have been tested and qualified, but which are not yet listed, are requested to submit evidence of such qualification with their bids or proposals, so that they may be given consideration. If this is a formally advertised procurement, any bid which does not identify the qualified product being offered, either above or elsewhere in the bid, will be rejected. Inasmuch as ASPR § 1-1107 (1974 ed.) was issued pursuant to the Armed Services Procurement Act of 1947, 10 U.S.C. § 2301 et seq. (1970), it has the force and effect of law and is binding not only on bidders but also on the procuring agencies. See Paul v. United States, 371.U.S. 245 (1963).

232-098 O -,77 - 4

Consequently, a bidder's failure to indicate the identity of the product it is offering in such a manner as to permit the procuring agency to determine that its product is qualified must be considered a material omission rendering its bid nonresponsive. 45 Comp. Gen. 397 (1966); B-158197, April 5, 1966; B-161779, August 7, 1967; B163575, March 26, 1968; B-166255, August 1, 1969; 51 Comp. Gen. 415 (1972); B-179232, supra.

However, as we stated in B-161779, supra:

In determining whether a bid sufficiently identifies a qualified product we are mindful that we have criticized certain practices adopted in the administration of Qualified Products procurements which restricted competition unnecessarily. See 38 Comp. Gen. 357; 40 Comp. Gen. 348. Consequently, in order to prevent a further, unnecessary restriction of competition by adopting uniform requirements as to what constitutes sufficient product identification, we have proceeded on an ad hoc basis in resolving this question. For example, we have held that the mere failure of a bidder to list the Test Number of his qualified product does not necessarily render his bid nonresponsive if he has included the place of manufacture of his offered product so as to allow the contracting officer to determine the product was qualified. 45 Comp. Gen. 397. Where identification of the product in the Item Name blank of the Qualified Products Clause would have meant mere repetition of the description of the product as detailed in the invitation, a bid was not rendered nonresponsive because it failed to contain the Item Name and Test Number of the offered product. B-158197, April 5, 1966. * * *

Also see 53 Comp. Gen. 249 (1973), where we found that since the agency knew the IFB specifications, QPL number, type and size of the item, and the fact that the bidder was the item's manufacturer, it could ascertain the item's name and the applicable QPL test number and identify the item offered by the bidder, who failed to fill in the test number and the item's name in the "Notice-Qualified End Products" clause. In view of the foregoing, it is clear that the identification of a product offered by a bidder who fails to fill in the blanks in the "Notice-Qualified End Products" clause can result from the conjunctive use of such information as product designation, manufacturer's name, QPL test number, and QPL list number. See 51 Comp. Gen. 415, 418 (1972).

In B-180732, Moody did not identify the manufacturer or the applicable QPL test number. However, without any undue administrative burden, ASO can easily determine these designations, since it knows the applicable QPL list number (QPL-5498-18), by noting and locating the manufacturer's designation identified by Moody in its bid (1008700-4) on the QPL and by simply looking across that column to ascertain the manufacturer (Bendix) and the test number (BuAer 1tr. Aer-AE-189 of June 26, 1957). Consequently, we believe that Moody's bid in this case sufficiently identified the product it was offering and its omission of the name of the manufacturer and the applicable test number may be regarded as a waivable minor informality not rendering Moody's bid nonresponsive.

We do not regard the insertion of the QPL test number as being of such significance, in and of itself, as to make its omission from a bid

an indication that the bidder may not or cannot offer a product which has been qualified. In this regard, we note that Moody or any other bidder could just as easily itself perused the applicable QPL and have placed the appropriate test number appearing there in its bid. We also note that the "Notice-Qualified End Products" clause itself indicates that the insertion of the QPL test number is not absolutely essential inasmuch as it only requires insertion of the QPL test number "(if known)."

Also, we believe it is clear that under the terms and conditions of the IFB, Moody was, by virtue of its bid, obligated to furnish a product which had been qualified and which conformed to the IFB specifications. 41 Comp. Gen. 124; 43 id. supra; 49 id. 224 (1969); B-169290, June 1, 1970. As indicated above and discussed below, if it can be shown that Moody or any other bidder cannot deliver a conforming product, it can be found to be nonresponsible. Therefore, in view of the foregoing, we cannot find that Moody's failure to identify the QPL test number obligated it to meet less than the conditions and specifications required in the IFB.

Also, since ASO could have determined the identity of the product Moody was offering by perusing Moody's bid, the IFB and the QPL incorporated into the IFB, we cannot view the mandatory language of the "Notice-Qualified End Products" clause and paragraph 4–202.3 of Chapter IV of the Defense Standardization Manual 4120.3-M (which is set forth above) as requiring rejection of its bid.

It should also be noted that the foregoing reasoning would also apply to the IFB protested under B-181971, where Moody also failed to list the QPL test number.

QPL Acceptance Test Requirements

and Bidder Responsibility

ASO also states that Moody could not comply with the acceptance test requirements of both B-180732 and B-181971, which were specifically incorporated into the IFB's by MIL-A-5498C (ASG) and MIL-C-19246C respectively. The acceptance tests in MIL-A-5498C (ASG) consisted of both individual and sampling tests and are set out in paragraph 4.3. The first article inspection and quality conformance inspections and tests in MIL-C-19246C are set out in paragraphs 4.4 and 4.5.

ASO bases its determination that Moody is unable to meet the acceptance test requirements on a preaward survey conducted by DCASR, Oklahoma City, Oklahoma, on Moody's facilities for a previous solicitation, and the fact that Moody did not in its bid specifically indicate its ability to comply with these tests. In addition, ASO claims

the preaward survey revealed that Moody was also nonresponsible because it had an inadequate inspection system and a bad past performance record. '

ASO has also taken the position that a bidder offering surplus material in unspecified condition without a showing in its bid that it meets all of the Government's requirements cannot constitute an offer to deliver material meeting the specifications.

In response, Moody claims that it was not required to comply with the tests since they are only applicable to the manufacturer, and since these items are QPL items, it must be presumed that they were properly tested. In this regard, Moody notes that the Government is more intimately aware of the circumstances of the production, acceptance and sale as surplus of the QPL items than a surplus bidder and since ASO had not specifically alleged that the articles Moody was offering were sold by the Government as defective that it can only be assumed that no disability in the articles exists and that testing is not required. Moody also notes that the preaward survey was outdated and therefore no longer a valid basis for finding Moody nonresponsible. Moody also claims it has an adequate inspection system and refers to a statement by the Government's Quality Assurance Representative (QAR) for Moody's plant as follows:

I concur that D. MOODY & CO., INC. is qualified under MIL-I-45208A Inspection (and test) System Requirements.

We believe it is clear that the acceptance, first article, and quality conformance tests contained in MIL-A-5498C (ASG) of B-180732 and MIL-C-19246C of B-181971 were mandatory requirements of the contracts awarded under each of the IFB's. (Just as is the case of the acceptance test requirements in section 4.5 of MIL-I-27193B (USAF), which is incorporated into the IFB under B-182091.) In this regard, we are of the view that the following statements in the Military Specifications in question here leave no doubt that these tests are requirements of each contract awarded:

MIL-A-5498C (ASG)—section 4.3.1-Individual Tests. Each accumulator submitted for acceptance under contract shall be subjected to the following tests * * *. [Italic supplied.]

MIL-A-5498C (ASG)

4.3.2.1 Accumulators.-Accumulators, up to 2 percent of the order, but not less than one accumulator, which have passed the Individual tests specified in 4.3.1, may be selected by the Inspector for further tests to determine conformance with any of the requirements of this specification as may be considered necessary. [Italic supplied.]

MIL-C-19246C-section 4.2

(b) First article inspection-First article inspection consists of examinations and tests performed on samples which are representative of the production item after award of a contract to determine that the production item meets the requirements of this specification.