(c) Quality conformance inspection-Quality conformance inspection consists of examinations and tests performed on individual products or lots to determine conformance of the products or lots with the requirements set forth in this specification.

These test requirements are not limited to manufacturers as is contended by Moody. This is true even though these tests may have once been completely and satisfactorily performed for a previous order made to the Government under a QPL contract. As noted by ASO, there is a legitimate need for testing surplus QPL items which have been outside the control of the QPL manufacturer or the Government and which may have been abused or improperly stored. It is also possible that the QPL acceptance tests were waived for the previously procured items. Also, the fact that the Government had control over the items and had records of whether or not they were purchased under a QPL procurement and had passed all acceptance tests cannot be considered a substitute for these test requirements because it is possible that the parts may have been mishandled, improperly stored, or simply deteriorated with age while in the possession of the surplus dealer, manufacturer or the Government. In any case, ASPR § 1-1208 (c) (1974 ed.), which is discussed below, makes it clear that former Government surplus must fully comply with all of the specifications and other contract requirements (e.g., test requirements) or else it cannot be accepted. Finally, this is not an improper dual standard of treatment for manufacturers and surplus dealers, as discussed above, since manufacturers are required to meet the same acceptance test requirements as surplus dealers.

With regard to the propriety of requiring these tests, our Office has consistently taken the position that the procurement agencies have the primary responsibility for drafting specifications reflecting their actual needs. 38 Comp. Gen. 190 (1958); 44 id. 302 (1964); B-178288, May 24, 1973. When a specification lends itself to free and open competition, as required by applicable statutes, and it is shown that any restrictive provisions therein are no greater than necessary to protect a legitimate interest of the Government, our Office will not question the specification. See B-176708, February 2, 1973; Hy-Gain Electronics Corp., B-180740, December 11, 1974; Manufacturing Data Systems, Inc., B-180586, B-180608, January 6, 1975. In this regard, we have consistently held that the responsibility for the establishment of tests and procedures necessary to determine product acceptability is within the ambit of the expertise of the cognizant technical activity. See B-174868, July 14, 1972; B-176256, November 30, 1972; B-177312, April 19, 1973; B-178584, August 29, 1973; B-179205, December 4, 1973; B-178498, December 11, 1973.

In B-180732 and B-181971, Moody has not presented any probative evidence which would tend to show that the acceptance tests required by

the technical activity responsible for the qualification of the products under MIL-A-5498C (ASG) and MIL-C-19246C (Naval Air Systems Command (NAVAIR)) are not necessary to insure that the products offered are acceptable. The fact that some of the tests may be preproduction or production tests which only can be performed by the manufacturer is not a sufficient reason for our Office to question the requirement.

Also, the fact that an item passed qualification tests does not relieve a contractor from performing the acceptance tests which the cognizant technical activity responsible for qualifying and listing qualified products believes necessary to insure the Government's receipt of a product meeting its minimum requirements. As noted above, the fact that a bidder is offering an item qualified for listing on a QPL does not relieve it of its obligation of complying with the terms, conditions and requirements of the contract and offering a product acceptable to the Government. 41 Comp. Gen. 124; 49 id. 224.

ASO based its determination that Moody could not comply with the QPL acceptance test and inspection system requirements under the IFB's in B-180732 and B-181971 on a preaward survey conducted by DCASR on July 31, 1973, in response to a Navy request arising out of Moody's low bid under ASO's NOO383–73–B-0759 for the procurement of pressure indicators for the A-1 and P/SP-2H aircraft. This preaward survey revealed, from the inspection of a sample of the pressure indicators offered by Moody, that the sample had been used and overhauled in violation of the IFB's "New Material" clause and that Moody did not possess the capability to manufacture or properly test the pressure indicators. DCASR also noted that Moody's past performance record was unsatisfactory and recommended that award not to be made to Moody. Based on the preaward survey, ASO found Moody to be a nonresponsible bidder on the IFB's protested under B-180732 and B-181971.

In Western Ordnance, Inc., B-182038, December 23, 1974, we stated: Our Office has consistently held that the question of a prospective contractor's responsibility is a matter for determination by the contracting officer involved. See Matter of RIOCAR, B-180361, May 23, 1974, and cases cited therein. One of the important elements of a bidder's responsibility is the capability to perform in accordance with the requirements set forth in the solicitation, which includes such factors as equipment and personnel. Resolving this question of fact necessarily involves the exercise of a considerable range of judgment and discretion by the contracting officer. It is not the function of our Office to determine whether Western Ordnance has demonstrated a capability to perform this contract; rather, our function is to review the record to determine whether the contracting officer's exercise of judgment and discretion in finding Western Ordnance nonresponsible was reasonable under the circumstances. In this regard, we have stated that a contracting officer's determination of responsibility or nonresponsibility will not be disturbed absent a reasonable basis therefor. See Matter of Leasco Information Products, Inc. et al., 53 Comp. Gen. 932; 51 Comp. Gen. 233 (1971).

It is also clear that a contractor, who is found not to have the ability to meet the IFB test requirements or deliver a qualified product otherwise meeting the contract requirements, can be found to be nonresponsible for the particular procurement. See B-150427, February 5, 1963; B-174350(1), June 16, 1972; B-176318, September 29, 1972; B-176708, supra.

Notwithstanding the foregoing, we believe it was improper for ASO to have relied on this July 31, 1973, negative preaward survey to find Moody nonresponsible for the IFB's protested here, which had bid openings dated January 8, 1974, and April 9, 1974, respectively. A contracting officer may not solely rely on a preaward survey conducted on a potential contractor's facilities for a prior procurement of a different article over 5 months prior to an IFB's bid opening (over 8 months in the case of the IFB under B-181971) to find the contractor nonresponsible. As we stated in Western Ordnance, Inc., supra:

***The fact that Western Ordnance was determined to be nonresponsible for the immediate procurement does not reflect in any way upon the firm's eligibility for future contracts, since determinations of responsibility are required to be made on "as current a basis as feasible with relation to the date of contract award." See ASPR § 1-905.2 (1974 ed.)

Moreover, DCASR found that Moody only lacked adequate test facilities for the pressure indicators being procured under IFB N00383-73-B-0759. The acceptance tests for the accumulators and connectors procured (B-180732 and B-181971) are different than those required for the indicators. Also, it may have been possible for Moody to have subcontracted the QPL acceptance test requirements. In addition, Moody could show compliance with any preproduction or production acceptance tests by showing that they were properly performed by the manufacturer.

Although Moody's inspection system was found unacceptable based on its apparent inability to properly test and inspect the items being purchased for that procurement at that time, we do not believe that it was reasonable for the contracting officer to rely on an outdated preaward survey to find Moody's inspection system inadequate for the procurements docketed under B-180732 and B-181971. In addition, Moody's inspection system was found by the preaward survey to meet the minimum quality assurance and inspection requirements for surplus dealers, a fact which has been subsequently confirmed in the QAR's statement furnished by Moody. However, it would seem that this finding would not necessarily preclude future findings of inadequacy of Moody's inspection system for a QPL item.

Therefore, based on the foregoing, we must conclude that ASO's finding that Moody was nonresponsible had no reasonable basis. We

note, however, that ASO has stated that with respect to future procurements new preaward surveys would be conducted.

Moreover, the stated presumption by ASO of the unacceptability of surplus material offered by a bidder, who does not in its bid specify the exact condition of the material offered and affirmatively volunteer and show that it could meet all of the IFB requirements (including QPL and test requirements), is not bottomed on established procurement principles. There were no requirements in the IFB's for the submission of supporting data concerning the offering of surplus property as a condition of eligibility for award. By submitting unqualified bids under an IFB, bidders offering surplus property would be responsive to the advertised requirements subject only to responsibility findings. See B-155524, January 14, 1965; B-160377, May 31, 1967; B-162931, supra; B-165809, January 24, 1969. A bidder cannot be expected to respond in its bid to informational requirements concerning its ability to meet the IFB specifications where these requirements are not called for in the IFB. Under such circumstances, if the contracting officer requires information, which has not been required to be submitted in a bid, concerning the exact condition or source of the surplus material offered by a low bidder or the low bidder's ability to perform in accordance with the IFB specifications, he may inquire of the surplus bidder as to how it will comply with the specifications, and if that bidder is unable to meet the IFB requirements, the bidder could be determined to be non-responsible.

Shelf Life Limitations

ASO also claims that the articles Moody offered under the IFB's docketed under B-180732 and B-181971 did not comply with the shelf life limitations of the articles' elastomer components. This also meant that the offered materials were in violation of the "New Material" clause (discussed below).

In this regard, ASO refers to the IFB schedule involved in B180732 which references the shelf life of the accumulators as 3 years, after which deteriorable parts must be replaced. Also, paragraph 5.1(b) of the Air Force-Navy Aeronautical (ANA) Bulletin No. 438c, dated February 15, 1965, entitled Age Controls of Age-Sensitive Elastomeric Items, provides that the elastomeric O-rings in the unused accumulators may not exceed 4 quarters (12 months). This Bulletin was incorporated by reference by section G-700-G of the IFB's here under consideration (B-180732 and B-181971). Moody's bid was not in compliance with these requirements, inasmuch as Moody stated in its bid that it acquired the accumulators from the Air Force in 1970, or more than 3 years from the date the accumulators were assembled.

Moody questions the validity of the 3-year shelf life limitation and alleges that since the accumulators were Air Force surplus and the Air Force considers them nondeteriorative, that ASO cannot limit the shelf life. It is clear that the Air Force's minimum needs are not necessarily determinative of ASO's minimum needs. See B-178584, supra. Since Moody has presented no probative evidence which would show that the 3-year shelf life limitation is unreasonable, we may not question this requirement.

Paragraph 3.3.1.1 of MIL-C-19246C involved in B-181971 states:

3.3.1.1 Age-Elastomer components shall not be more than 12 months old from the date of manufacture to the date of delivery to any Government service or to any airframe or accessory manufacturer.

We have no basis to find this requirement unreasonable. Moreover, Moody admits that it would have to replace the elastomer components in the oxygen mask hose connectors in order to comply with this limitation. The acceptability of Moody's proposed "refurbishment" of the connectors is considered below.

ASO maintains that Moody cannot meet the cure and assembly date marking, manufacturing identity, and storage requirements for age control of age-sensitive elastomeric items set out in paragraphs 5.3, 5.4, and 5.5 of ANA Bulletin No. 438c, and that Moody must demonstrate in its bid its compliance with the Bulletin.

These paragraphs provide in pertinent part:

5.3.1 Prior to assembly, the age control of uninstalled elastomer items and products shall be based on the cure date. Cure date shall be marked on containers in accordance with MIL-STD-129 *

5.3.2 The age control of an assembly containing elastomer items shall be based on the assembly date. Assembly date shall be physically marked on the assembly *** Assembly-date information shall also be indicated on unit, intermediate, and shipping containers containing a single line item. Exterior shipping containers containing major assemblies comprising two or more subassemblies that embody rubber items shall be identified by the date of the oldest assembly contained therein. * * *

5.3.3 Packages which include mixed categories of cured rubber items shall be physically marked with the assembly date of the oldest assembly in the package and this assembly date shall be indicated on the unit, intermediate, and shipping containers for the items.

5.4 Manufacturing identity.-In all cases, the manufacturer or the distributor shall maintain complete manufacturer identity (manufacturer's name, cure date, assembly date, specifications on cure-dated items) of the items, products, or assemblies for subsequent transmittal when sold to a contractor, subcontractor, or the Government.

5.5 Storage.-Rubber items, products, and assemblies that contain age-sensitive polymers shall be protected from circulating air, sunlight, fuel, oil, water, dust, and ozone (which is generated by electric arcs, fluorescent lamps, and similar electrical equipment). The storage temperature should not exceed 100° F. and shall not exceed 125° F.

We believe paragraphs 5.3.1 and 5.4 and the first part of paragraph 5.3.2 of ANA Bulletin No. 438c concerning product and manufacturer identification are applicable only to the manufacturer or authorized distributor of the product, while the last part of paragraph 5.3.2 and