Gentex Corporation--Reconsideration

B-271381.2 Aug 28, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Request for reconsideration is denied where. Which was set forth on a qualified products list (QPL) maintained by Kelly Air Force Base. Which is the cognizant qualifying activity for the valve component. Which is a mandatory provision to be included in all solicitations containing a qualification requirement. All mandatory actions when a qualification requirement is imposed. We concluded that there was no basis for Gentex's interpretation that the RFP required the awardee to provide an oxygen mask which complied with the QPL criterion. This argument is a variation on one of Gentex's initial protest challenges. We denied this ground of protest since there was no showing that in the event of a resolicitation with the qualification provision the results of the procurement would have been any different. View Decision Matter of: Gentex Corporation--Reconsideration File: B-271381.2 Date: August 28, 1996 Request for reconsideration is denied where, even assuming the protester's argument had merit, no prejudice inured to the protester as a result of the agency's alleged error. Attorneys DECISION Gentex Corporation requests reconsideration of our decision Gentex Corp. B-271381, June 18, 1996, 96-1 CPD para. 281, in which we denied its protest of the Defense Logistics Agency's (DLA) award of a contract for pilot pressure-demand breathing oxygen masks and related equipment components to Scott Aviation under request for proposals (RFP) No. SPO920- 95-R-X035. We deny the request for reconsideration. In its protest, Gentex challenged the contract award on the ground that the agency had improperly waived a mandatory qualification requirement for one of the oxygen mask's required components--the inhalation/exhalation valve--which was set forth on a qualified products list (QPL) maintained by Kelly Air Force Base, which is the cognizant qualifying activity for the valve component. We denied Gentex's protest. Contrary to Gentex's interpretation of the solicitation, the RFP did not include any qualification requirement. The RFP did not incorporate any of the master solicitation's mandatory QPL provisions. [1] Nor did the RFP incorporate FAR Sec. 52.209-1, "Qualification Requirements"--which is a mandatory provision to be included in all solicitations containing a qualification requirement. FAR Sec. 9.206-2. The agency also did not prepare a written justification for a qualification requirement, FAR Sec. 9.202(a)(1); provide offerors with all requirements they must satisfy to become qualified, FAR Sec. 9.202(a)(2); and provide an opportunity for qualification before award via publication in the Commerce Business Daily, FAR Sec. 9.205, all mandatory actions when a qualification requirement is imposed. Given the absence from the solicitation of any qualification reference or associated FAR provision, and since the agency had never publicized its intent to impose a qualification requirement, we concluded that there was no basis for Gentex's interpretation that the RFP required the awardee to provide an oxygen mask which complied with the QPL criterion. On reconsideration, Gentex argues that our prior decision warrants reversal because of a legal error. Gentex contends that despite the solicitation's failure to incorporate the QPL requirements, DLA nevertheless must terminate the awarded contract and resolicit this requirement because the cognizant qualifying activity for the mask's QPL components--Kelly Air Force Base--never authorized DLA to conduct a procurement for the masks without enforcing the QPL requirements. This argument is a variation on one of Gentex's initial protest challenges, and--for the same reasons discussed in our prior decision and reiterated below--does not warrant reversing our initial decision. In this regard, the record showed that after realizing that the qualification requirement had been omitted from the solicitation, DLA executed a post- award modification to Scott's contract to require satisfaction of QPL requirements through a first article testing provision. Although Gentex challenged the post-award modification as improper, and requested, as it has on reconsideration, that the awardee's contract be terminated and the requirement resolicited with the QPL provisions, we denied this ground of protest since there was no showing that in the event of a resolicitation with the qualification provision the results of the procurement would have been any different. Specifically, the record unequivocally showed that at the time it competed for award, the protester mistakenly believed that the RFP contained the mask's QPL requirements. Thus, Gentex actually competed under the impression that the more restrictive terms applied--the same terms, which, in the event we sustained Gentex's protest against the post-award modification, would be incorporated in the ensuing resolicitation.