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B-153201, AUG. 20, 1964

B-153201 Aug 20, 1964
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THIS INVITATION WAS THE SUBJECT OF OUR DECISION DATED MARCH 17. ACTION WAS INITIATED BY THE PROCUREMENT AGENCY TO PERFORM A PREAWARD SURVEY OF YOUR COMPANY TO DETERMINE WHETHER YOUR FIRM MET THE MINIMUM REQUIREMENTS FOR A RESPONSIBLE PROSPECTIVE CONTRACTOR AS PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903. THIS DETERMINATION IS BASED ON THE DATA DEVELOPED AND RECORDED BY FRANKFORD ARSENAL SURVEY TEAMS DURING AND ON SITE PRE-AWARD SURVEY ON 24- 25-MARCH 1964. IT IS CLEARLY EVIDENT ARGUS UNDERESTIMATED THE MAGNITUDE OF THE FINAL ASSEMBLY AND TEST REQUIREMENTS AND HAS FAILED TO DEMONSTRATE SUFFICIENT TECHNICAL CAPACITY TO PERFORM WITHIN THE TERMS OF THE CONTRACT WITHOUT HEAVY DEPENDENCE ON THE GOVERNMENT TECHNICAL EXPERTS.

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B-153201, AUG. 20, 1964

TO ARGUS INCORPORATED:

BY LETTER DATED MAY 8, 1964, AND SUBSEQUENT CORRESPONDENCE, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO THE CHRYSLER MOTOR COMPANY UNDER INVITATION FOR BIDS NO AMC/A/36-038-64-304/M), ISSUED ON NOVEMBER 4, 1963, BY THE UNITED STATES ARMY MATERIAL COMMAND, FOR 767 M17A1 RANGEFINDERS, WITH EQUIPMENT, IN ACCORDANCE WITH DRAWING F8620960, MIL-R-46346 AND MIL-I -45208.

THIS INVITATION WAS THE SUBJECT OF OUR DECISION DATED MARCH 17, 1964, WHEREIN WE CONCLUDED, FOR THE REASONS THEREIN STATED, THAT YOUR BID SHOULD BE CONSIDERED FOR AWARD IF OTHERWISE PROPER. SUBSEQUENT TO OUR DECISION, ACTION WAS INITIATED BY THE PROCUREMENT AGENCY TO PERFORM A PREAWARD SURVEY OF YOUR COMPANY TO DETERMINE WHETHER YOUR FIRM MET THE MINIMUM REQUIREMENTS FOR A RESPONSIBLE PROSPECTIVE CONTRACTOR AS PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903. ON APRIL 30, 1964, THE CONTRACTING OFFICER, PURSUANT TO ASPR 1-904.1, MADE THE FOLLOWING DETERMINATION AND FINDING OF YOUR FIRM'S RESPONSIBILITY.

"1. PURSUANT TO ASPR 1-904.1, THE UNDERSIGNED CONTRACTING OFFICER CONSIDERS THE ARGUS, INC., ANN ARBOR, MICHIGAN, NONRESPONSIBLE FOR THE AWARD OF THE M 17 RANGE FINDER REQUIREMENTS NOTWITHSTANDING ITS ADEQUATE PERFORMANCE ON SMALLER SIZE INSTRUMENTS LET UNDER PRIOR CONTRACTS AND FAVORABLE PRE-AWARD SURVEY REPORT BY THE DETROIT PROCUREMENT DISTRICT.

"2. THIS DETERMINATION IS BASED ON THE DATA DEVELOPED AND RECORDED BY FRANKFORD ARSENAL SURVEY TEAMS DURING AND ON SITE PRE-AWARD SURVEY ON 24- 25-MARCH 1964, AND THE WRITTEN REPORT OF A FRANKFORD ARSENAL TECHNICAL PANEL AFTER DETAILED DISCUSSION WITH ARGUS MANAGEMENT AND ITS HIGHER ENGINEERING PERSONNEL AT FRANKFORD ARSENAL ON 21-22 APRIL 1964.

"3. IT IS CLEARLY EVIDENT ARGUS UNDERESTIMATED THE MAGNITUDE OF THE FINAL ASSEMBLY AND TEST REQUIREMENTS AND HAS FAILED TO DEMONSTRATE SUFFICIENT TECHNICAL CAPACITY TO PERFORM WITHIN THE TERMS OF THE CONTRACT WITHOUT HEAVY DEPENDENCE ON THE GOVERNMENT TECHNICAL EXPERTS.

"CONCLUSION

"4. THEREFORE, IT MUST BE CONCLUDED ARGUS, INC. HAS NOT CONCLUSIVELY DEMONSTRATED THE NECESSARY CAPABILITIES AND "KNOW HOW" TO PRODUCE M 17 RANGE FINDERS WITHIN THE DELIVERY SCHEDULE, HENCE DOES NOT QUALIFY AS A RESPONSIBLE PROSPECTIVE CONTRACTOR MEETING THE MINIMUM STANDARDS SET FORTH IN ASPR 1-903.'

IT IS CONTENDED THAT SUCH DETERMINATION AND FINDING IS WITHOUT SUBSTANCE AND THAT YOUR FIRM IS QUALIFIED TO PERFORM THE PROCUREMENT PROPERLY AND TIMELY AS CONTEMPLATED BY THE INVITATION.

THE ADVERSE DETERMINATION WAS BASED UPON A PREAWARD SURVEY REPORT PREPARED BY FACILITIES AND PRODUCTION PERSONNEL FROM FRANKFORD ARSENAL. IT IS POINTED OUT BY YOU THAT A SURVEY REPORT PREPARED BY THE DETROIT PROCUREMENT DISTRICT RECOMMENDED AWARD TO YOUR FIRM. WHETHER ONE OF THESE PREAWARD SURVEYS SHOULD PREVAIL OVER THE OTHER IS A QUESTION PARTICULARLY FOR CONSIDERATION BY THE PROCUREMENT AGENCY. THAT IS TO SAY, THE PROCUREMENT AGENCY MUST DETERMINE WHICH SURVEY REPORT CONTAINED SUFFICIENT DATA AND INFORMATION NECESSARY TO MAKE THE DETERMINATION AND FINDING REQUIRED UNDER THE REGULATION. THE PROCUREMENT AGENCY CONCLUDED THAT THE FRANKFORD PREAWARD SURVEY REPORT WAS BASED ON A TECHNICAL EVALUATION OF YOUR FIRM'S ABILITY AND QUALIFICATIONS TO MEET ALL ASPECTS OF THE PROCUREMENT, INCLUDING ENGINEERING, PRODUCTION AND TESTING, WITHIN THE DELIVERY SCHEDULE PRESCRIBED BY THE INVITATION, AND THAT THE DETROIT PREAWARD SURVEY REPORT WAS NOT BASED ON A FULL UNDERSTANDING OF THE TECHNICAL DIFFICULTIES INHERENT IN THE PROCUREMENT AS RELATED TO YOUR FIRM'S CAPABILITIES TO SATISFACTORILY PERFORM THE RESULTING CONTRACT. FEEL THAT THE CONCLUSIONS THUS ARRIVED AT ARE NOT SUBJECT TO OBJECTION BY OUR OFFICE.

IT SHOULD BE UNDERSTOOD THAT OUR OFFICE DOES NOT DETERMINE THE RESPONSIBILITY OF PROSPECTIVE GOVERNMENT CONTRACTORS. OUR JURISDICTION IN THIS REGARD IS TO DETERMINE FROM THE RECORD BEFORE US WHETHER THE INFORMATION AND DATA RELIED UPON BY THE CONTRACTING OFFICER IN FINDING YOUR FIRM TO BE NONRESPONSIBLE AS TO THIS PARTICULAR PROCUREMENT REASONABLY SUPPORTED THAT FINDING. WHETHER THE EVIDENCE OF RECORD OF YOUR FIRM'S NONRESPONSIBILITY AS TO THIS PROCUREMENT WAS SUFFICIENT TO SUPPORT THE FINDING IS A MATTER PRIMARILY FOR EVALUATION BY THE PROCUREMENT AGENCY, AND BECAUSE REASONABLE AND PRUDENT MEN MAY WELL DISAGREE IN SUCH EVALUATION, WE HAVE ADOPTED THE RULE THAT WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE PROCUREMENT AGENCY, UNLESS IT IS SHOWN BY CONVINCING EVIDENCE THAT THE FINDING OF NONRESPONSIBILITY WAS NOT BASED ON SUBSTANTIAL EVIDENCE DEMONSTRATING THE BIDDER'S LACK OF RESPONSIBILITY. 36 COMP. GEN. 42; 37 ID. 798; 38 ID. 131; 78; 39 ID. 468. ON THE RECORD BEFORE US, WE ARE UNABLE TO SAY THAT THE DETERMINATION AND FINDING MADE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

THIS ENTIRE MATTER HAS BEEN CAREFULLY CONSIDERED BY US NOT ONLY IN THE LIGHT OF THE WRITTEN RECORD, BUT ALSO ON THE BASIS OF INFORMATION ADDUCED AS A RESULT OF CONFERENCES WITH REPRESENTATIVES OF YOUR FIRM AS WELL AS WITH OFFICIALS OF THE PROCUREMENT AGENCY. THE PARTICULAR CATEGORIES OF DEFICIENCIES IN THE AREA OF ENGINEERING, PRODUCTION AND TESTING, AND TECHNICAL PERSONNEL HAVE BEEN THE SUBJECT OF CONSIDERATION CORRESPONDENCE AND DISCUSSION, AND WE DO NOT FEEL IT NECESSARY TO RESTATE THE CONTENTIONS THAT HAVE BEEN RAISED WITH RESPECT THERETO. WE FULLY RECOGNIZE THAT A PROSPECTIVE CONTRACTOR MAY DEMONSTRATE AN ABILITY TO OBTAIN THE NECESSARY ATTRIBUTES OF "RESPONSIBILITY" AS DISTINGUISHED FROM PRESENT "IN HOUSE" CAPABILITY SO AS TO MEET THE MINIMUM STANDARDS OF ASPR 1-903.1. BUT WE ALSO RECOGNIZE THAT "ABILITY TO OBTAIN" MUST BE DEMONSTRATED TO THE SATISFACTION OF THE PROCUREMENT AGENCY THAT CERTAIN DEFICIENCIES WILL BE CURED BEFORE AWARD. THE CRUX OF THE PROCUREMENT AGENCY'S PRESENTATION TO OUR OFFICE IS THAT YOUR FIRM DID NOT DEMONSTRATE AN "ABILITY TO OBTAIN" THE NECESSARY ATTRIBUTES OF RESPONSIBILITY. WE ARE NOT DISPOSED TO QUESTION THIS ASPECT OF THE FINDING OF NONRESPONSIBILITY.

WE, OF COURSE, ARE AWARE OF THE IMPLICATIONS THAT MIGHT ARISE FROM A FINDING OF NONRESPONSIBILITY. HOWEVER, WE HAVE HELD THAT AN INITIAL DETERMINATION OF NONRESPONSIBILITY MAY NOT OPERATE TO DEPRIVE A BIDDER OF PROCUREMENT AWARDS SUBSEQUENTLY TO BE MADE. 43 COMP. GEN. 140.

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