« 이전계속 »
On April 13, the Army determined that FOC's bid could not be accepted for award because FOC's product had yet to be qualified, and made award to Varec.1 FOC and Goodyear filed timely protests with us contesting, respectively, the rejection of FOC's bid and the award to Varec. On May 26, we closed Goodyear's protest without action based upon Goodyear's and the Army's agreement that the agency would suspend Varec's performance of the contract while we decided the issue of Varec's acceptability for other procurements involving the same parties and issue. Subsequently, the other protests were dismissed (because one procurement was canceled and Goodyear received an award under the other). On June 17, Goodyear timely refiled with us its protest against the qualification of Varec's product under the IFB.2 Performance of Varec's contract continues to be suspended pending our decision in this matter. On August 31, we denied FOC's protest in part and dismissed it in part in Florida Ordnance Corp., B-247363.4, Aug. 31, 1992, 92–2 CPD | 138.3 As an initial matter, the Army argues that we should dismiss Goodyear's protest because, given our role in ensuring that requirements for full and open competition are met, we should not review protests that would result in a restriction of competition.4 The agency also argues that we should dismiss the protest because qualification requirements are for the benefit of the government and therefore the agency should: [B]e allowed to routinely grant waivers to increase competition . . . where . . . the agency is satisfied that the products offered will meet the [g]overnment's minimum needs, even if there may be some flaw in the qualification process. Finally, both the Army and Varec contend that the process of qualifying products for inclusion on a QPL involves an offeror's responsibility and therefore the qualification of Varec's product was an affirmative determination of Varec's responsibility, which we should not review, given Goodyear's failure to allege fraud or bad faith by agency officials or that definitive responsibility criteria have not been met. See 4 C.F.R. $ 21.3(m)(5) (1992). We disagree that Goodyear's protest is dismissable for any of the reasons advanced by the agency or Varec. The purpose of the QPL system is to allow the efficient procurement of items which require substantial testing to demonstrate compliance with specification requirements. D. Moody & Co., Inc.; Astronautics Corp. of Am., 55 Comp. Gen. 1 (1975), 75-2 CPD | 1. The procurement of qualified products is a two-step process in which (1) products are tested for compliance with specifications and, if found in compliance, listed on the appropriate QPL, and (2) products on the QPL may be then procured. T.G.L. Rubber Co., Ltd., B-206923, Sept. 20, 1982, 82-2 CPD | 239. While the QPL system is intended to be used prior to, and independent of, any specific procurement action, see FAR $ 9.203(a), it nevertheless is “one facet of the integral system of procuring qualified products.” D. Moody & Co., Inc.; Astronautics Corp. of Am., supra. The use of a QPL in the procurement of qualified products is inherently restrictive of competition. McGean-Rohco, Inc., 64 Comp. Gen. 752 (1985), 85–2 CPD 1 140. Nonetheless, where, as here, the government's minimum needs require the qualification of products for inclusion on an applicable QPL (and statutory and regulatory requirements have been satisfied), the restriction of a procurement to a product on the QPL is not improper. See 51 Comp. Gen. 47 (1971), where we found that: [S]ince the best interests of the [g]overnment require maintenance of full and free competition commensurate with the [g]overnment's needs, we are of the opinion that while regulations implementing the use of (QPLs) should be interpreted to insure procurement of products meeting the [g]overnment's needs they should not be interpreted in such a manner as to place unnecessary restrictions on competition. Id. at 49. In this regard, we will not consider protests against an agency's determination not to restrict a procurement to products contained on a QPL. See Anderson Power Prods., B-227502, Sept. 10, 1987, 87-2 CPD | 230. Here, however, the Army has determined that its minimum needs require the procurement of a product that has been qualified for inclusion on a QPL, and no objection, timely or otherwise, has been raised to this determination. Accordingly, award should be made only to a bidder whose offered product, at the time of award, has been tested and properly qualified for inclusion on the QPL; in this regard, where an IFB requires a qualified product, a bid that offers a product that has not been tested and approved for listing on the appropriate QPL is nonresponsive to a material IFB requirement and may not be accepted. See 40 Comp. Gen. 352 (1960); Wirt Inflatable Specialists, Inc., B-204673, Dec. 31, 1981, 81-2 CPD 1 523. Contrary to the Army's arguments, the crux of Goodyear's protest is not a challenge to the scope of the competition but to the agency's award to a bidder whose offered product allegedly was not properly included on the QPL. Goodyear's protest concerns the fairness of the Army's conduct of this procurement, that is, whether the agency treated bidders unequally by relaxing a material solicitation requirement for one bidder. In this regard, we have found that:
1 FOC's product was qualified approximately 2 weeks after its bid was rejected by the Army. 2 The Army and Goodyear have entered a number of agreements by which Goodyear has withdrawn timely, prebid opening protests of the qualification of Varec's product under other solicitations for tank track components. 3 FOC was unable to pass the bushing qualification test and thus to qualify its product within the time allowed by the agency, and we found that the agency did not act unreasonably in refusing to allow FOC additional time to pass the qualification testing. 4 In the agency's view, if we were to sustain Goodyear's protest, this would effectively result in a sole-source award to Goodyear. We note that FOC's product has now been qualified and presumably FOC will seek to compete for future awards of tank track components, such as the pin and bushing assembly.
There can be no question that a product prequalification provision in an invitation goes to the essence of the procurement, and we have held so in similar situations. . . . It is fundamental that the award of a contract ... must be made upon the same specifications offered to all bidders, and that an award pursuant to a bid deviating substantially from the advertised specifications does not result in a valid and binding contract. 45 Comp. Gen. 71, 75 (1965). [Citations omitted.] Nevertheless, the Army argues that we should not consider Goodyear's protest because qualification requirements are for the benefit of the government and
therefore the agency should be allowed to waive the qualification requirements as to Varec in order to foster increased competition.5 It is true that qualification requirements are considered to be for the benefit of the government, see McGean-Rohco, Inc., supra, and that a procuring agency, in setting forth its minimum needs in a solicitation, may choose to waive in total or in part a product's qualification requirements. This does not mean, however, that an agency can waive the qualification requirements stated in a solicitation without notice and an opportunity to others to satisfy the agency's new requirements.6 See 45 Comp. Gen., supra; D. Moody & Co., Inc.; Astronautics Corp. of Am., supra. The essence of a fair competitive procurement system is that bidders and offerors will be treated equally, and we will thus consider a protest, such as Goodyear's, that contends that an agency is treating bidders unequally. We also disagree with the Army and Varec that Goodyear's protest is actually a challenge to the agency's affirmative determination of Varec's responsibility. The issue of whether an item was properly included on a QPL does not concern a bidder's or offeror's responsibility. See American Athletic Equip. Div., AMF Inc., 58 Comp. Gen. 381 (1979), 79-1 CPD 1 216. Responsibility refers to a bidder's or offeror's apparent ability and capacity to perform all contract requirements. See FAR $ 9.104; Sage Assocs. Gen. Contractors, Inc., B-235497, Aug. 15, 1989, 89-2 CPD | 141. The inclusion of an item on a QPL, rather than involving the ability or capacity of an offeror to perform contract requirements, involves the testing of a product to demonstrate compliance with specification requirements. American Athletic Equip. Div., AMF Inc., supra. While it is true that the ability of an offeror to supply a qualified product concerns an offeror's responsibility, the actual qualification of the product concerns its acceptability and eligibility for award under the solicitation. See Master Power, Inc., B-238468.2, Nov. 28, 1990, 90-2 CPD || 434. Since Goodyear does not challenge Varec's ability or capacity to produce a qualified pin and bushing assembly, but objects to the qualification of Varec's product, its protest does not concern the agency's affirmative determination of Varec's responsibility. As stated above, Goodyear protested that Varec's product was not properly qualified under MIL-T-11891B, which was an IFB requirement. MIL-T-11891B states the agency's requirements for two types of rubberized track shoe assemblies for use on military track vehicles and sets forth the tests that track shoe assemblies, sets, pads, pins and bushings must satisfy to be found qualified. Generally, an offeror's rubber tread and bushing compound must satisfy (1) road tests, (2) laboratory tests, and (3) bushing qualification tests. In pertinent part, MIL-T-11891B provides that the bushing qualification tests shall be conducted on eight bushings (for each rubber compound for which qualification is sought) by the government on an approved test machine and that: Test specimens shall be subjected to radial loading of 1800 psi (pounds per square inch) at a frequency of 64 cpm (cycles per minute] and to torsional twist of (plus or minus] 15 [degrees] at a frequency of 256 cpm. The duration of the cyclic radial load relative to the cyclic torsional deflection shall be maintained on a [1 to 4) ratio with failure defined as the point the total radial deflection reaches 0.144 inches. The bushing qualification test is designed to test the overall reliability of bushings under conditions similar to those applied in actual service use. Bushings that cannot satisfy the fatigue requirements of MIL-T-11891B could fail more often than permitted by the agency's needs. The record shows that Varec's bushings, pads, and track shoes were subjected to qualification tests in 1983 in Belgium under the supervision of the Belgian military, and that MIL-T-11891B was the specification to which the rubberized pads, track shoes, and bushings were tested. No Army or other United States government official was present during the qualification testing of Varec's product. In 1989, the Belgian ministry of defense certified that Varec's track shoes, pads, bushings and wheels for tracked vehicles satisfied the quality requirements of Allied Quality Assurance Publication (AQAP)-4.? In 1990, Varec submitted to TACOM the certified test results and detailed test data of the Belgian military's testing of its bushings, pads, and track shoes and sought inclusion on the QPL. On April 16, 1991, TACOM approved Varec's product for inclusion on the QPL on the basis of TACOM's review of the certified test data. As stated above, Varec's product was not actually added to the QPL until January 1992. Goodyear primarily challenges the inclusion of Varec's product on the QPL because Varec's bushings, allegedly, were not properly qualified under the requirements of MIL-T-11891B, but were instead subjected to significantly less stringent testing. Goodyear also contends that Varec failed to satisfy MIL-T-11891B's road test requirement because the wear on Varec's product's rubber pad exceeded the maximum allowable. MIL-T-11891B, as incorporated in the IFB, requires that the bushing qualification tests be conducted by the government on an approved machine. Currently, the only approved test machine in the United States for bushing qualification is owned by the government and located at Keweenaw Research Center (KRC) at Michigan Technological University; KRC conducts the agency's bushing qualification tests for the government on the government-owned test machine. Video Transcript of Hearing (VT) at 17:39.8 Prior to its location at KRC, the bushing qualification test machine was located at and operated by TACOM. VT at
5 The Army cites Hiltronics Corp., B-241450 et al., Jan. 18, 1991, 91-1 CPD 1 57, in support of its argument that QPL requirements can be waived. In that case, we found that the agency could waive qualification requirements to obtain competition where the QPL specifically provided for such waiver and the agency would be receiving a first article that could be tested for specification compliance. Unlike Hiltronics Corp., the IFB and QPL here do not specifically provide for a waiver of the qualification requirements or request first articles. 6 As noted above, the Army has consistently maintained that the QPL requirements represent its minimum requirements.
cause Varec's MIL-T-11891B; also contenduse the wear on
? AQAP-4, which is promulgated by the NATO International StaFF-Defence Support Division, provides inspection system requirements that are roughly equivalent to the inspection system requirements of MIL-I-45208A. In pertinent part, AQAP-4 requires contractors to have the latest applicable drawings and specifications for use in inspection testing. 8 A hearing was conducted pursuant to 4 C.F.R. $ 21.5 to receive testimony regarding the requirements of MIL-T-11891B, the agency's review of Varec's certified test data, and whether Varec's product satisfied the requirements of MIL-T-11891B for inclusion on the QPL.
the load is applicurve is important one cycle. VT at
17:39–40. Goodyear's bushings were originally tested and qualified by TACOM when it had possession of the KRC test machine. VT at 15:16–17. The KRC test machine performs the required bushing qualification test by applying a torsional load; that is, by twisting a pin with the rubber bushings at 256 cpm, where each cycle consists of the pin being twisted in an arc between plus 15 degrees and minus 15 degrees. Simultaneously, a radial load is applied; that is, pressure of 1800 psi is applied to the side of the pin at a frequency of 64 cpm. VT at 17:15–17. As stated above, MIL-T-11891B requires that the torsional load to radial load be maintained at a ratio of four cycles to one. The KRC test machine meets the foregoing requirements by means of a mechanical linkage that assures that the torsional and radial loads are applied in-phase. VT at 15:21-23, 15:31. That is, for every radial load cycle, the peak radial load of 1800 psi is experienced when the bushing is being subjected to the greatest torsional stress, that being at the plus or minus 15 degree deflection. Furthermore, the KRC test machine applies the radial load over a “square curve”; that is, the radial load builds to 1800 psi over one torsional cycle, is held at nearly 1800 psi for two torsional cycles, and is released over one cycle.9 VT at 15:19, 17:40. The shape of the radial load curve is important because it defines the amount of time that the load is applied to the bushings. VT at 16:41-42. MIL-T-11891B does not specifically describe the operation of the bushing qualification test machine, other than to require that the torsional and radial load cycles be applied in a 4 to 1 ratio. It also does not provide any procedure for approving nongovernment-owned test machines, VT at 11:58, but MIL-T-11891B does expressly require that the bushing tests be conducted by the government on an approved machine. During January 1984 through February 1988, revision B of MIL-T-11891 was superseded by revisions C and then D; these revisions allowed contractor-conducted bushing qualification tests so long as the tests were conducted on a test machine that the government had approved. To be approved under these revisions, a contractor-owned and/or operated test machine was required to operate as the government-owned machine operated; that is, the contractor's bushing test machine was required to apply the torsional and radial load cycles, inphase, at a 4 to 1 ratio, and to apply the radial load in a square curve over two torsional cycles. 10 During this period, Goodyear, although its product was already qualified and on the QPL, received approval for its own bushing qualification test machine under revision D. VT at 12:05. To obtain this approval, Goodyear was required to demonstrate that its machine, just like the government-owned machine, applied the torsional and radial load cycles in-phase and that the radial load was applied in
visions C andets so long as To be appr
9 A square curve could also be described as a flat curve where the radial load is applied at a nearly constant level over two torsional cycles. In a "triangle curve," on the other hand—which Goodyear asserts was likely used in the conduct of Varec's bushing tests—the radial load builds rapidly to a peak and then is rapidly taken off, rather than being maintained at a required peak load for several cycles. 10 Revisions C and D contained other detailed instructions concerning the required operation of the bushing qualification test machine, i.e., the use of a flex plate to compensate for a machines given flex resistance. VT at 15:27.