Matter of:Apache Enterprises, Inc.

B-275813.2 Apr 23, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest that source controlled components offered by the awardee were not properly qualified is denied where the record shows that the components satisfied the qualification requirements specified in the applicable drawings. Protester was not prejudiced by the procuring agency's failure to identify in the solicitation the awardee as an approved source for the components where the record does not show or otherwise evidence that the protester would or could have altered its bid to its competitive advantage had the protester known of this source approval. Three of which (two postlight bases and one postlight cap) are identified as source approved items. Sources seeking approval for the caps were required to provide a test report. View Decision Matter of: Apache Enterprises, Inc. File: B-275813.2 Date: April 23, 1997 DIGEST Attorneys DECISION Apache Enterprises, Inc. protests the award of a contract to Panelite Engineering, Inc. under invitation for bids (IFB) No. DAAJ09-96-B-0046, issued by the U.S. Army Aviation and Troop Command for night vision modification kits. We deny the protest. The IFB, issued June 21, 1996, as a small business set-aside, sought 28 night vision modification kits to be provided to the Republic of Korea under the Foreign Military Sales program. The night vision kits consist of 39 components, three of which (two postlight bases and one postlight cap) are identified as source approved items. The postlight bases and cap provide illumination for aircraft control panels under night vision conditions. The IFB identified drawings required for the kit components. These drawings identified Apache as the only approved source for the postlight bases and caps, and stated the requirements for source approval. Among other things, sources seeking approval for the caps were required to provide a test report, which verified that the source satisfied the radiance requirements stated in the applicable military standard, MIL-L-856762A, and in note 5B of the drawings; at note 5B, the method by which the illumination requirements must be tested is set forth. The IFB also informed bidders that they were required to utilize parts from only approved sources and that bidders could be required to document prior to award that arrangements to obtain source approved components had been made. The IFB provided for first article testing, which, among other things, would verify the use of source controlled components. At the July 30 bid opening, the Army received three bids, including those of Apache and Panelite. Panelite submitted the low bid of $145,200, and Apache submitted the second low bid of $246,788.18. Panelite was asked to verify its bid, which it did. A pre-award survey was also conducted. In response to Apache's complaints, the Army investigated whether Panelite could provide the required source approved components, discovering that Panelite intended to furnish postlight bases and caps of Pan-A-Lite, Inc., [1] which had been approved as a source for these restricted components in early May 1996, although Pan-A-Lite was not listed on the drawings. Although Panelite was found technically capable of performing, the survey recommended "no award" because of Panelite's high delinquency rate on deliveries. Based on this negative pre-award survey, the Army determined that Panelite was not responsible. This matter was referred to the Small Business Administration, which issued a certificate of competency. Award was made to Panelite on December 8, and this protest followed. Apache objects to the Army's approval of Pan-A-Lite as a source to provide the restricted postlight bases and caps. Apache contends that Pan-A-Lite's product was not subjected to the same testing as was Apache's to ensure that Pan-A-Lite's product would meet the agency's needs. [2] The system of qualifying and approving products, which is generally used prior to, and independent of, individual procurements, is nevertheless an integral part of the system of procuring qualified and approved products. Goodyear Tire & Rubber Co., 72 Comp.Gen. 28, 31-32 (1992), 92-2 CPD Para. 315 at 5; Chemonics Indus., Inc., B-260284, Apr. 19, 1995, 95-1 CPD Para. 206 at 2-3. Where, as here, a solicitation requires that the product procured be qualified or approved, it is improper to include in the list of approved products an item that has not been properly approved and does not satisfy the applicable specifications; including such a product in the list may constitute a basis for sustaining a protest if the agency's action prejudices the protester. Goodyear Tire & Rubber Co., 72 Comp. Gen. at 40-41, 92-2 CPD Para.