B-154956, SEP. 22, 1964

B-154956, SEP. 22, 1964

TO ZERO MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1964, PROTESTING THE AWARD OF A CONTRACT TO ROIS MANUFACTURING COMPANY UNDER INVITATION FOR BIDS NO. DSA-2-64-1231.

THE INVITATION WAS ISSUED ON MAY 18, 1964, TO 56 BIDDERS FOR THE FOLLOWING ITEMS:

1. 22194 MEDICAL INSTRUMENT AND SUPPLY SET FIELD CHEST NO. 3.

2. 1594 MEDICAL INSTRUMENT AND SUPPLY SET FIELD CHEST NO. 6.

3. REPAIR AND CRATING OF GOVERNMENT-OWNED TOOLING REQUIRED TO FABRICATE ITEMS 1 AND 2.

BIDS FOR ITEMS 1 AND 2 WERE REQUESTED ON A DESTINATION (BID A) AND ORIGIN (BID B) BASIS. THE IFB CONTAINED A CLAUSE ADVISING BIDDERS THAT ONE AWARD WOULD BE MADE TO A SINGLE BIDDER FOR ALL ITEMS WITH DELIVERY IN JANUARY 1965, FOR ITEMS 1 AND 2 AND WITHIN 30 DAYS AFTER COMPLETION OF ITEMS 1 AND 2 FOR ITEM 3. ON JUNE 8, 1964, THE BID OPENING DATE, THREE BIDS WERE RECEIVED. AN EVALUATION OF SUCH BIDS SHOWED THAT ROIS MANUFACTURING COMPANY WAS THE LOW BIDDER, AND AN AWARD WAS THEREFORE MADE ON THAT BASIS.

IN YOUR LETTER YOU ALLEGE THAT THE AWARD TO ROIS "VIOLATES THE SPIRIT AND THE LETTER" OF THE MEMORANDUM BY THE SECRETARY OF DEFENSE PUBLISHED MARCH 4, 1964, AND DEFENSE PROCUREMENT CIRCULAR DATED JUNE 18, 1964, INASMUCH AS ROIS IS NOT A RESPONSIBLE BIDDER IN THAT IT CANNOT PRODUCE A SPECIFICATION ITEM WITHIN THE REQUIRED TIME WITHOUT ADDITIONAL COST TO THE GOVERNMENT.

THE MEMORANDUM TO WHICH YOU REFER WAS PUBLISHED IN DEFENSE PROCUREMENT CIRCULAR NO. 3, DATED MARCH 4, 1964. THAT CIRCULAR AND PARAGRAPH 1-902, DEFENSE PROCUREMENT CIRCULAR NO. 9, JUNE 18, 1964, REQUIRE THE DEPARTMENT TO DEAL ONLY WITH CONTRACTORS WHO HAVE BEEN DETERMINED TO BE RESPONSIBLE UNDER SECTION I, PART 9, OF ASPR. IN THE PRESENT CASE THE RECORD SHOWS THAT THE RESPONSIBILITY OF THE LOW BIDDER WAS INQUIRED INTO BY THE CONTRACTING OFFICER PRIOR TO THE AWARD AS REQUIRED BY SECTION I, PART 9, OF ASPR. THIS INQUIRY WAS CONCERNED WITH ROIS' MANUFACTURING FACILITIES, TECHNICAL ABILITY, FINANCES, AND COMMITMENTS FROM SUBCONTRACTORS AND SUPPLIERS. BASED UPON THE INFORMATION OBTAINED, THE CONTRACTING OFFICER CAME TO THE CONCLUSION THAT ROIS HAD THE REQUISITES TO DELIVER AN ITEM MEETING SPECIFICATION REQUIREMENTS WITHIN THE REQUIRED TIME, AND HE CONSEQUENTLY DETERMINED THAT ROIS WAS A RESPONSIBLE SUPPLIER AS DEFINED IN SECTION I, PART 9, OF ASPR.

IT IS REPORTED THAT PREVIOUSLY, THE ROIS MANUFACTURING COMPANY PERFORMED A NUMBER OF CONTRACTS OF SMALLER DOLLAR VALUE FOR DEFENSE MEDICAL SUPPLY CENTER FOR ITEMS SUCH AS TEST KITS, TRAYS, MEDICAL, AND SUPPLY SET CHESTS. THIS PAST EXPERIENCE INDICATED TO THE CONTRACTING OFFICER THAT THIS SUPPLIER WAS ACCEPTABLE. HOWEVER, IN VIEW OF THE DOLLAR VALUE OF THE PROPOSED CONTRACT AND THE QUANTITY OF UNITS INVOLVED, IT WAS DECIDED BY THE CONTRACTING OFFICER TO FURTHER INSURE ROIS' CAPACITY TO PERFORM. ACCORDINGLY, DURING THE PERIOD JUNE 26 TO JULY 10, 1964, THE DIRECTORATE OF TECHNICAL OPERATIONS SURVEYED THE FACILITIES, OPERATIONS AND PERSONNEL OF BOTH ROIS AND ITS PROPOSED SUBCONTRACTOR, PHILMONT PRESSED STEEL, INC.

THE RESULTS OF THE SURVEYS INDICATED THAT ROIS POSSESSED THE NECESSARY EQUIPMENT AND EXPERIENCE TO PRODUCE THE SMALLER COMPONENTS OF A FINISHED FIELD CHEST, AND THAT IT POSSESSED THE NECESSARY EQUIPMENT TO WELD, ASSEMBLE, PAINT, MARK AND SHIP THE COMPLETED FIELD CHEST. ALSO, IT WAS FOUND THAT DELIVERY SCHEDULES COULD BE MET BY PROVIDING FOR ADDITIONAL SHIFTS.

THE SURVEY OF PHILMONT INDICATED THAT IT HAD THE REQUIRED EQUIPMENT, FACILITIES AND EXPERIENCE TO PRODUCE THE SEAMLESS, DIE-DRAWN, DEEP ALUMINUM SHELLS OF THE FIELD CHESTS. ACCORDINGLY, PHILMONT WAS APPROVED AS A SATISFACTORY SUBCONTRACTOR FOR THE PORTION OF THE WORK REQUIRING SEAMLESS DIE DRAWING, WHILE ROIS WAS FOUND TO BE A SATISFACTORY MANUFACTURER FOR THE BALANCE OF THE OPERATIONS REQUIRED TO PRODUCE THE FINISHED ITEM.

THE RECORD SHOWS THAT AT MEETINGS WITH DMSC PERSONNEL ROIS FURNISHED A BALANCE SHEET, PROFIT AND LOSS STATEMENT, AND OTHER ACCEPTABLE EVIDENCE OF FINANCIAL ARRANGEMENTS NECESSARY TO CONTRACT PERFORMANCE, AND ADVISED THE CONTRACTING OFFICER THAT ROIS HAD SCHEDULED A THREE SHIFT OPERATION AND HAD FIRM COMMITMENTS FROM PHILMONT TO PERFORM THE DIE DRAWING ON THE REQUIRED UNITS.

BASED ON THE PAST EXPERIENCE OF DMSC WITH ROIS AND THE INFORMATION CONTAINED IN THE SURVEY REPORT, A DETERMINATION WAS MADE BY THE CONTRACTING OFFICER THAT ROIS WAS A RESPONSIBLE SUPPLIER. ACCORDINGLY, A CONTRACT WAS AWARDED TO ROIS ON JULY 24, 1964.

THIS OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF A BIDDER'S OVER-ALL RESPONSIBILITY IS PRIMARILY THAT OF THE CONTRACTING AGENCY AND NOT OF THE GENERAL ACCOUNTING OFFICE. 38 COMP. GEN. 131; 33 ID. 549. WHETHER A BIDDER IS, OR IS NOT, CAPABLE OF PRODUCING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT, AND IN THE ABSENCE OF EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITIES WAS BASED ON ERROR, FRAUD OR FAVORITISM, THIS OFFICE WILL THEREFORE ACCEPT THE FINDINGS OF THE CONTRACTING AGENCY. 40 COMP. GEN. 294.

FROM OUR REVIEW OF THE RECORDS IN THE INSTANT CASE, WE MUST CONCLUDE THAT THE CONTRACTING OFFICER HAD A REASONABLE BASIS FOR HIS DETERMINATION THAT ROIS WAS A RESPONSIBLE BIDDER. IN VIEW THEREOF, AND SINCE THE DEFENSE MEDICAL SUPPLY CENTER IS AWARE OF YOUR CONTENTIONS AND HAS ADVISED THIS OFFICE IT WILL INSIST THAT THE CONTRACT BE PERFORMED IN ACCORDANCE WITH ITS TERMS, WE SEE NO VALID BASIS ON WHICH TO QUESTION THE VALIDITY OF THE CONTRACT. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.