B-162449, November 2, 1967, affirmed B-162449, January 23, 1968; B-164780, September 12, 1968, affirmed at B-164780, November 4, 1968.

A literal reading of this requirement may lead one to believe that waiver need only be requested where the procuring activity proposes to waive requirements for qualification testing and QPL listing (as opposed to acceptance tests required by a mandatory QPL Military Specification). However, we believe the regulation reasonably contemplates that the term "qualification requirement" encompasses all of the mandatory requirements relating to QPL procurements. The qualification process is but one facet of the integral system for procuring qualified products. In our view, this system also necessarily includes a contractor's compliance with all applicable requirements (including acceptance test requirements) of the Military Specification defining the qualified product. To otherwise interpret this requirement would subvert the purpose for having such a waiver requirement. Just as a procuring activity may jeopardize the technical integrity of a qualified product by failing to require delivery of a product qualified for listing on a QPL without receiving an appropriate waiver, the procuring activity may equally jeopardize the product's technical integrity by not allowing the activity responsible for preparing and maintaining the applicable Military Specification and QPL an opportunity to review the effect that a particular proposed waiver of Military Specification requirements would have on the quality or reliability of the qualified product prior to an award based on a relaxation of such mandatory requirements.

ASO states that the contracting officer did not obtain a waiver of the QPL requirements from the preparing activity prior to the execution of the contract with Alden because he did not consider a waiver required; that is, he did not believe he was procuring QPL articles to the Military Specification. ASO points out, in the alternative, that the Military Specification was not considered adequate for the procurement of surplus indicators and that under such circumstances our Office has recognized that the use of a Military Specification is not mandatory. See 44 Comp. Gen. 27 (1964) and Ampex Corporation, 54 Comp. Gen. 488 (1974).

We have recognized that ASPR § 1-1202 (a) (1974 ed.) mandates the utilization of a Military Specification, where available, as is the case here. 43 Comp. Gen. 680 (1964); 44 id., supra; 50 id. 691 (1971); 53 id. 295 (1973). ASPR § 1-1202 (b) (1974 ed.) lists certain exceptions to this requirement, none of which appears to be applicable here.

Also, we have recognized that determinations as to whether an existing Federal Specification or Military Specification will meet the actual needs of the agency in a particular situation and the drafting of

appropriate contract specifications to reflect those needs are primarily the responsibility of the agency concerned, which our Office will not question unless such determinations can be shown to have no reasonable basis. 44 Comp. Gen., supra; Ampex Corporation, supra. However, 44 Comp. Gen., supra, and Ampex Corporation, supra, do not stand for the proposition, as is suggested by ASO, that Military Specifications are not mandatory, nor do these decisions in any way imply that the procuring agency is excused from obtaining a QPL waiver where the Military Specification will, in fact, satisfy the Government's requirements. 43 Comp. Gen. 680; B-152861 (2), April 10, 1964; B-159550, November 25, 1966; 53 Comp. Gen. 295. In this regard, in B-153404(2), July 23, 1964, the forwarding letter to the Secretary of the Navy accompanying 44 Comp. Gen., supra, we criticized the Navy for its failure in that case to make a proper review for deviating from the Federal Specification in the IFB, and noted that such deviations should be authorized only on a convincing showing of compelling needs.

It should also be noted that in both 44 Comp. Gen., supra, and Ampex Corporation, supra, it was found that the Military Specifications were not adequate to meet the Government's requirements, whereas here (B-182091) there is no question but the QPL items on which the IFB was based satisfied ASO's actual needs. As we have previously indicated, we are not persuaded by ASO's contention that no surplus dealer can adequately demonstrate that it can meet QPL requirements. Indeed, it would appear, on the basis of the record before us, that Alden has demonstrated that it is offering a QPL product and that it can meet all QPL acceptance test requirements. Consequently, we do not believe that ASO has shown that the Military Specification is not adequate for the procurement of this surplus material, especially in view of the fact that it appears that no additional contract requirements have been imposed on Alden that were not set forth in the IFB or the Military Specification.

Proper procurement procedures required ASO to obtain an appropriate QPL waiver from the cognizant Air Force activity prior to award of the Alden contract. However, we do not believe this failure under the circumstances of this case was prejudicial to the other offerors. In B-158096, March 8, 1966, we stated:

The establishment of a Qualified Products List is solely for the Government's benefit, and the Government may elect under ASPR 1-1109 not to use it. There are no assurances made to qualified firms that the Government will purchase QPL items only from such firms. Hence, when the Government elects not to use a QPL as the basis for procurement, a qualified source cannot have an award set aside as being invalid notwithstanding the lack of precise compliance with administrative procedures.

Similarly, we believe an overly strict application of the ASPR § 1-1108 (1974 ed.) procedures would be unwarranted under the circumstances

of the present case. See B-162449, supra; B-164780, supra; B–167554, December 9, 1969. Compare 53 Comp. Gen. 295, where the Navy failed to utilize a Military Specification in a procurement despite the fact that it was apprised of the existence of this Specification, which met its actual needs, over 6 months prior to award, which was prejudicial to an offeror, who, with the knowledge of the Navy, went to the time and expense of qualifying its product to compete under the pro

curement.

In the present case, there is no indication that any bidder went to any expense relying on ASO's IFB requirement that all acceptance tests would be performed. Moreover, award probably could well have been made to Alden under the IFB and none of the tests waived. In any event, performance and delivery of the initial quantity of indicators has been completed.

However, an option is scheduled to be exercised on this contract by July 15, 1975. If the option quantity is in excess of 15, "Sampling Plan B" would appear to be required by MIL-I-27193B (USAF), which, with one exception, ASO has previously indicated that it did not require of Alden. (If option quantity is under 15, "Sampling Plan B" tests would not appear to be required.) We also note that ASO has previously indicated that 5 of the required "Sampling Plan A❞ tests were not going to be performed by Alden, although Alden has indicated that it performed all of the "Sampling Plan A” tests and many of the "Sampling Plan B" tests on the initial contract quantity. Consequently and in view of our determination that ASO improperly failed to obtain a waiver under ASPR § 1-1108 (1974 ed.) when it apparently did not require Alden to perform all of the QPL acceptance tests, we recommend that consideration be given to requiring all applicable QPL acceptance tests be performed by Alden on the option quantity and all other Military Specification requirements be complied with, or, in the alternative, that a waiver be obtained from the cognizant Air Force technical authority, prior to exercise of the option, of those tests which ASO feels are unnecessary or uneconomical.

Walsh-Healey Act

Astronautics has also protested that Alden is not a "regular dealer,” as it certified in its bid, and is therefore ineligible for award under the Walsh-Healey Public Contracts Act, 41 U.S.C. §§ 35-45 (1970), and related implementing regulations, ASPR § 12-601 et seq. (1974 ed.). The Walsh-Healey Act provides, inter alia, with certain exceptions not here material, that every contract exceeding $10,000 in amount entered into by any Government agency for the procurement of supplies shall contain a stipulation that the contractor is a manufacturer of, or regular dealer in, such supplies. Our Office is not

authorized to review determinations of whether a particular firm is a regular dealer or manufacturer within the purview of the WalshHealey Act and the related implementing regulations, and we have consistently denied jurisdiction in this area, since such determinations are exclusively vested with the contracting officer subject to final review by the Department of Labor. See Corbin Sales Corporation, B-181454, July 10, 1974; Trand Advertising Company, B-182212, February 19, 1975; F & H Manufacturing Corporation, B-183491, April 29, 1975. Conclusions

We do not recommend disturbing any of the three awards involved here, although we have recommended as to B-182091 that ASO either require compliance with the applicable Military Specification requirements if the option in that contract is exercised, or ask for a waiver from the QPL preparing activity, prior to exercise of the option, of those QPL requirements with which ASO has determined compliance to be unnecessary. Nevertheless, we are concerned with ASO's overly restrictive interpretations of the QPL requirements and the "New Material" clause and its use of an outdated preaward survey to find a bidder nonresponsible.

We are also concerned as to ASO's general policy concerning bids offering surplus material. For the most part, ASO apparently has a "blanket" prohibition against all surplus material (whether new and unused surplus or "reconditioned" surplus) under its procurements for "essentially aeronautical" items. This prohibition is not called for nor sanctioned by regulation, and ASO does not specifically inform bidders in its solicitations that surplus material would not be acceptable. This policy is at odds with the statutory requirement for "free and open" competition and is not reflective of the Government's actual needs. ASPR § 1-1201 (1974 ed.) states in pertinent part:

(a) Plans, drawings, specifications or purchase descriptions for procurements shall state only the actual minimum needs of the Government and describe the supplies and services in a manner which will encourage maximum competition and e'iminate, insofar as possible, any restrictive features which might limit acceptable offers to one supplier's product, or the products of a relatively few suppliers. Items to be procured shall be described by reference to the applicable specifications or by a description containing the necessary requirements. [Italic supplied.]

The contracting officer and his cognizant technical personnel, if possible under the circumstances of the particular procurement, should determine at the time solicitations are issued whether surplus and/or reconditioned material will meet the Government's actual needs for a particular procurement. Of course, the determination should be based on the actual conditions under which the supplies have been used in the past and how they might be used in the future. See Particle

Data, Inc., B-179762, B-178718, May 15, 1974; Manufacturing Data Systems Incorporated, supra.

We appreciate ASO's legitimate concern that surplus material should not be accepted for aeronautical items unless there is complete assurance of the quality of the surplus items. We are, however, concerned with ASO's practice of restricting "free and open" competition in conducting these procurements in the case of bidders offering surplus and/or reconditioned material. This deficiency is being brought to the attention of the agency for corrective action.

[B-183543]

Contracts-Negotiation-Late Proposals and Quotations-Identification Erroneous

Where proposal package was received in proper office by required time, and such receipt was verified by procurement personnel in response to offeror's telephone call, but without reference to offeror's mislabeling of package with non-existent request for proposals number, proposal may be considered timely received, notwithstanding return of package to offeror unopened as result of incorrect labeling, and subsequent resubmission after closing date for submission of proposals but before award.

In the matter of Kirschner Associates, Inc., July 1, 1975:

Kirschner Associates, Inc. (Kirschner) protests the rejection of its proposal for an assessment of the status of bi-lingual vocational training, submitted in response to request for proposals (RFP) No. 75-26, issued by the Office of Education (OE), Department of Health, Education, and Welfare. Initial proposals were due in the OE Application Control Center (ACC) by 3:30 p.m., March 7, 1975, and the Kirschner hand-carried proposal package, although erroneously sent to the address designated in the RFP for mailed offers, was received in the ACC on the morning of March 7. However, Kirschner had transposed two numbers on the face of the proposal package, so that the package indicated that it contained a proposal for RFP No. 76–25 (a non-existent RFP), rather than for RFP No. 75–26.

Prior to the deadline for receipt of proposals, a Kirschner employee telephoned the ACC and asked whether Kirschner's proposal had been received. The record conflicts as to the manner by which either party to the conversation identified the package, but it is clear that the ACC employee did, at the least, verify receipt of a proposal submitted by Kirschner. As a result of Kirschner's mislabeling, however, ACC personnel assumed that the proposal was in response to RFP No. 75–25, under which initial proposals had been due 4 days earlier, and therefore Kirschner's proposal was rejected as late in accordance with paragraph 8 of the Solicitation Instructions and Conditions relative to late proposals. The package was returned to Kirschner where, upon receipt on March 24, it was reshipped to the ACC with the indication that it was