cluded by the "New Material" clause. In this regard, we would tend to agree with ASO that, in the ordinary case, replacing components necessary for the safe and proper functioning of "critical" aircraft and aircraft related parts, which can only be accomplished by disassembling and reassembling the part, would be considered "reconditioning."

In view of the foregoing, we do not feel that it is necessary to draw a fine line of distinction between the terms "recondition" and "refurbish."

ASO points out that, even assuming that these "refurbished" items were not "reconditioned," Moody must state in its bid that it will replace the elastomer components in order for it to be bound to do so under the contracts awarded pursuant to the IFB's. On the other hand, Moody claims that it need not specifically state in its bid that it plans to "refurbish" the items it is offering, since a bidder binds itself by its bid to deliver conforming and acceptable articles unless it qualifies its bid (which Moody did not do).

We agree with ASO that Moody should have indicated in its bid that it would replace the elastomer components in the items in question, if it intended to do so. Moody's bid clearly indicates that Moody had acquired both the accumulators and connectors more than 4 years previously while the shelf life was apparently only 3 years for the accumulators and only 1 year for the connectors. Consequently, we believe that, without further explanation in its bid indicating that it intended to replace the elastomer components, Moody's bid could be interpreted to mean that Moody was offering items that had not been reworked and which exceeded the shelf-age limitations set by the Government. Therefore, we cannot say that Moody's bid obligated it to "refurbish" those parts and, at best, Moody's bid must be considered ambiguous in this regard, since there is no specific condition in the IFB's providing for such reworking of the items. It is well-settled that an ambiguous bid may not be explained after bid opening with extraneous evidence in order to make it responsive to the IFB requirements, since the bidder would then, in effect, have an election as to whether or not it wished to have its bid considered by explaining the bid in such a manner as to either meet the IFB requirements or not meet such requirements. See 40 Comp. Gen. 393 (1961); 50 id. 302 (1970); A. D. Roe Company, Inc., 54 Comp. Gen. 271 (1974). The general obligation of a bidder to conform to the IFB requirements (which we discussed above) is not applicable to cases where the face of the bid contains information in apparent derogation of a material IFB requirement. See 50 Comp. Gen. 8 (1979); B-175178, May 25, 1972; B-177258, February 7, 1973. Therefore, we agree that ASO could

have rejected Moody's bid as nonresponsive for exceeding the shelfage limitations, since we cannot say that Moody obligated itself by its bid to replace the elastomer components.

There may also be some question as to whether the "refurbished” accumulators and connectors offered by Moody are still qualified products. It is clear that the QPL and Military Specification preparing activity (in these cases, NAVAIR) has the discretion to determine whether the "refurbishing" by Moody has sufficiently changed the product as to remove its qualification. See paragraph 4-109, Defense Standardization Manual 4120.3-M; B-176159, September 26, 1972, affirmed at B-176159, January 24, 1973. We have recognized that a change of place of manufacture or assembly of a once qualified item causes it to be subject to requalification (or removal from the QPL) before it again would be eligible for award under a QPL procurement, and that if it has not been requalified before bid opening, it must be rejected. See B-167304, August 27, 1969; B-171558, February 11, 1971; 52 Comp. Gen. 142 (1972); 53 id. 249. Since the accumulators and connectors are being disassembled, the elastomers replaced, and reassembled by Moody, and not at the plant at which they were qualified, we have some doubt that they can still be considered qualified products.

Summary of B-180732 and B-181971

Although we have raised objections to ASO's overly restrictive interpretations of the applicable regulations governing the procurement of qualified and/or surplus items and to ASO's determination that Moody was nonresponsible, we cannot object to ASO's ultimate decision that Moody's bids under the IFB's docketed under B-180732 and B-181971 could not be accepted due to their nonresponsiveness. The items offered by Moody were in excess of their applicable shelf life and, consequently, were unacceptable under the "New Material" clause. Also, ASO has advised (albeit after the awards had been made) that cognizant technical personnel have determined that the accumulators and connectors are so critical that surplus could never have been determined acceptable in these cases. In any event, performance under these procurements has long since been completed.

B-182091

In B-182091, although ASO regarded the low bidder to be nonresponsive by virtue of its offer of surplus material, it decided, in view of the over $30,000 difference between Alden's bid and the next low bid, and after a positive preaward survey and a determination by cognizant technical personnel that surplus material was acceptable, to cancel

the IFB and negotiate a sole-source award on a "public exigency" basis to Alden. The complete facts and rationale for ASO's actions in this regard are set out above.

In a supplemental report dated September 25, 1974, on B-180732, ASO sets forth its general policy concerning its response when it receives what it regards as "unsolicited" surplus bids as follows:

*** since the materials procured by ASO are essentially aeronautical items on which surplus material could not be accepted unless complete assurance were had with respect to the quality of the items, the Contracting Officer does not consider it possible to invite bids offering surplus material. * * * This is so because surplus material can be accepted only after such tests and evaluation as are considered necessary considering the age and condition of the material. Accordingly, where an uninvited offer of surplus material is received under an IFB at ASO, the Contracting Officer refers the question to the cognizant technical personnel and requests advice as to whether surplus material might be considered. If the price offered by the bidder offering surplus material shows that a significant saving might be realized through the purchase of material (after considering testing costs and other costs the Government might incur through the use of surplus material), the cognizant technical personnel visit, or request representatives of the ACO to visit, the contractor's facility to examine the surplus material to determine its age and condition. In some cases where the items offered are dynamic components, the items cannot be purchased unless a complete history of the use of the items, including number of operating hours taken from a log book or other substantiating document, and other information relative to the use of the part is furnished. Depending upon the age and condition of the material, cognizant technical personnel will then advise whether the material may be considered acceptable and what testing or refurbishing is required to make the offered material acceptable. Where, as a result of the foregoing, it appears in the interest of the Navy to consider procurement of such surplus material, the Invitation for Bids is cancelled. The material is then procured under a negotiated contract after the solicitation of a price from the surplus dealer that is based upon its compliance with the quality assurance provisions developed for the offered surplus material. If the prices bid in response to the cancelled IFB by concerns offering new material indicates the possibility of their furnishing new material at prices competitive with the approximate price expected to be offered by the surplus dealer, offers are also solicited from such concerns. The foregoing cannot be accomplished before the initial solicitation of bids since, even if it were possible to develop general specifications for the refurbishing of a particular item of surplus material irrespective of the age or condition of the material, the volume of procurements at ASO would preclude the possibility of preparing such specifications to cover the very few instances (of course, unknown in advance) in which bids offering surplus material are received. In view of the foregoing, we cannot and do not invite bids offering surplus material in any solicitation initially issued by ASO, but, where a bid is received that offers surplus material, will investigate its acceptability and, if acceptable, resolicit the procurement as outlined above.

While we have serious reservations as to the propriety of this policy, as will be discussed below, we believe that ASO's actions taken here are consistent with this policy, and that Moody apparently is not being "singled out" in these cases for adverse treatment. In this regard, ASO has compared its actions involved in B-181971 and B-182091 by noting that the difference between the bid prices in B-182091 was over $30,000 (not including the $960 cost of Government testing which ASO believed was necessary to insure receipt of an acceptable product) while the difference between the bids in B-181971 was only $2,242 (not including the cost of Government testing of $2,500).

232-098 - 77 - 5

The application of this policy as to docket B-182091 is somewhat analogous to the situations in B-164481, September 30, 1968, and B-171226, January 8, 1971, in which we recognized generally the propriety of an agency's reevaluating its minimum needs upon receipt of a low nonconforming proposal under a request for proposals, and deciding that other than "new" material would be acceptable and making an award on that basis to the low offeror, so long as the agency gave the other offerors an equal opportunity to compete on the same basis. In the present case, based on ASO's belief that Alden's bid was nonresponsive to the IFB by virtue of its offer of surplus material, it would seem that ASO should have solicited the other bidders to give them an opportunity to submit offers on the same basis as Alden before it awarded the sole-source contract to Alden. However, unlike B-164481, supra, we are unable to find that the other bidders were prejudiced by this apparent oversight, since it would seem unlikely in this particular case that the other bidders, who are manufacturers of the attitude indicators, would have offered surplus material. Indeed, Astronautics in its protest has never claimed that it would have offered surplus material, even if it had been given the opportunity.

However, on the basis of the record before us, we do not believe that Alden's bid was nonresponsive to the IFB; nor do we believe that Alden was a nonresponsible prospective contractor. In this regard, as we indicated above, a bidder offering surplus material is not automatically precluded from bidding on a QPL procurement so long as the product it is offering is qualified and can otherwise meet the IFB requirements. Also, since it was found that the items that Alden was offering were new and unused, those items did not violate the "New Material" clause.

Furthermore, Alden specifically indicated in its bid that it would perform all of the required QPL acceptance tests. Alden has since indicated that all of these tests were satisfactorily performed, except some of those tests listed in paragraph 4.5.2.2 (Sampling Plan B) of MILI-27193B (USAF), which would be harmful or destructive to the indicators tested. (Since the initial contract quantity was less than 15, "Sampling Plan B" tests would not seem to be required for this initial order.)

Alden also indicated in its bid that it would "refurbish" the indicators, if necessary; however, it appears that nothing had to be done to the indicators which would qualify as "reconditioning," or which would otherwise be in violation of the "New Material" clause. In this regard, we have been informed that the attitude indicators are classified as nondeteriorative, inasmuch as they are "hermetically" sealed. See paragraph 6.3.1 of MIL-I-27193 (B) (USAF).

Moreover, the preaward survey was positive and Alden was found to have the ability to offer acceptable material meeting the contract

requirements. Furthermore, there was no finding that Alden had inadequate test facilities or any inability to perform the required tests. Consequently, on the basis of the record before us, we believe that award could have been made under the IFB to Alden, notwithstanding ASO's contrary belief.

However, ASO's decision to cancel the IFB would appear to properly fall under ASPR § 2-404.1 (b) (v) (1974 ed.) which permits cancellation where the bids received indicate that the needs of the Government can be satisfied by a less expensive article than that which the IFB originally invited. See B-162487, December 29, 1967. Also, in view of our belief that Alden was the low responsive and responsible bidder under the IFB, we cannot object to the decision to negotiate a solesource award to Alden and cannot find that the award to Alden prejudiced the other bidders. Even if Alden's bid was nonresponsive, we would be unable to find that ASO's decision to negotiate on a "public exigency" basis with Alden had no reasonable basis, since, as indicated in detail above, ASO has stated that although the indicators were urgently needed and required to be delivered commencing in January 1975 to June 1975, neither the Navy nor the Air Force had enough of this item in stock to satisfy requirements.

ASO admits that the QPL acceptance tests under the IFB were mandatory and material contract requirements necessary to insure the quality of the material received. However, notwithstanding its belief at the time of award that some of these material QPL test requirements would not be performed and that it would not receive a qualified product from Alden as was required by MIL-I-27193B (USAF), it did not ask the preparing activity responsible for the listing and qualification of the attitude indicators (Wright-Patterson Air Force Base, Ohio) for a waiver of the qualification requirements as required by ASPR § 1-1108 (1974 ed.), which states:

Waiver of Qualification Requirement

When procuring a product under a specification which includes qualification requirements either for the end item or for components of the end item, such qualification requirements can be waived only by the activity that prepared the specification. In appropriate cases, when requested by the contracting officer, the preparing activity may waive qualification requirements. A notice, issued by the preparing activity, directing a waiver of the qualification requirement, constitutes adequate authorization for waiver of product qualification requirements. Where waivers have been granted, solicitations shall specifically indicate that the qualification requirement is inapplicable. Such information shall also be included in any Synopsis of the procurement.

It would seem that the purpose of this "waiver" requirement is to maintain the technical integrity of QPL's and the Military Specifications defining qualified products by allowing the preparing activity to review and grant waivers of QPL requirements by purchasing activities. See ASPR §§ 1-1202 (d) and (e) (1974 ed.); Defense Standardization Manual 4120.3-M, Chapter II, paragraph 2–101;