B-142401, JUL. 11, 1960

B-142401, JUL. 11, 1960

TO THE MANHATTAN LIGHTING EQUIPMENT CO., INC.:

REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED MAY 25 AND YOUR LETTER OF MAY 26, 1960, RELATIVE TO YOUR PROTEST AGAINST THE REJECTION OF YOUR BIDS UNDER INVITATIONS NOS. IFB-155-/1-3/-1488-60 AND IFB-155 /1-3/-1449- 60 ISSUED BY THE GENERAL STORES SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA. YOU EXPRESS DISSATISFACTION WITH OUR DECISION OF MAY 20, 1960, WHEREIN IT WAS STATED THAT "THERE APPEARS NO PROPER BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BIDS; " AND YOU REQUEST COPIES OF THE REPORT OF THE INSPECTOR OF NAVAL MATERIAL, NEW YORK, DATED FEBRUARY 17, 1960, AND "ALL THE INFORMATION REFERRED TO" IN OUR DECISION.

IT IS NOT PRIMARILY A FUNCTION OF OUR OFFICE TO RESOLVE DISPUTED QUESTIONS OF FACT. ALSO, IT IS WELL ESTABLISHED, BOTH BY DECISIONS OF THE COURTS AND OF OUR OFFICE, THAT AN ADMINISTRATIVE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS CONCLUSIVE UNLESS IT IS SHOWN THAT SUCH DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE DEMONSTRATING THE BIDDER'S LACK OF RESPONSIBILITY. SEE 38 L.R.A. (NS) 653; WILSON V. CITY OF NEW CASTLE, 152 A. 102, 103; SANDERLIN V. LUDEN, 68 S.E. 225, 227; INGE V. BOARD OF PUBLIC WORKS, 33 SO. 678, 681; 36 COMP. GEN. 42; 37 ID. 798; 38 ID. 131.

AS STATED IN SUBSTANCE IN OUR DECISION OF MAY 20, 1960, THE INFORMATION AVAILABLE TO THE CONTRACTING OFFICER IN THE INSTANT MATTER CONSTITUTED A SUBSTANTIAL BASIS FOR HIS ACTION IN REJECTING YOUR BIDS. THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT. WHILE SUCH JUDGMENT SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICES INVOLVED, SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY TO DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING OFFICIALS IN ANY CASE IN WHICH THERE APPEARS TO BE A SUBSTANTIAL BASIS FOR THE ACTION OF THOSE OFFICIALS.

IN YOUR LETTER OF MAY 24, 1960, YOU CONCEDE THAT "IN ISOLATED CASES WE (YOU) ARE TARDY IN DELIVERY.' IN A LETTER DATED FEBRUARY 19, 1960, THE INSPECTOR OF NAVAL MATERIAL LISTED THE CONTRACTS AWARDED TO YOUR CORPORATION DURING APPROXIMATELY THE PRECEDING YEAR BY THE ENGINEER DISTRICT, THE AIR PROCUREMENT DISTRICT, AND THE ARMY ORDNANCE DISTRICT IN THE NEW YORK AREA. IN 6 OF THE 7 CONTRACTS AWARDED BY THE ENGINEER DISTRICT, DELIVERIES ARE SHOWN AS TARDY, THE TARDINESS RANGING FROM 4 DAYS TO 4 MONTHS. IN 5 OF THE 7 CONTRACTS AWARDED BY THE AIR PROCUREMENT DISTRICT, DELIVERIES ARE SHOWN AS TARDY, THE TARDINESS RANGING FROM 1 MONTH TO 4 MONTHS (DAYS NOT SHOWN). IN 5 OF THE 13 CONTRACTS AWARDED BY THE ARMY ORDNANCE DISTRICT DURING 1958 AND 1959, DELIVERIES ARE SHOWN AS TARDY, THE TARDINESS RANGING FROM 1 MONTH TO 6 MONTHS (DAYS NOT SHOWN).

THE CONTRACT REFERRED TO IN OUR DECISION OF MAY 20, 1960, AS HAVING BEEN TERMINATED WAS CONTRACT NO. N104-72017 TERMINATED BY THE SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, BY ITS LETTER TO YOU DATED JANUARY 22, 1960.

FOR THE REASONS ABOVE SET OUT, IT IS OBVIOUS THAT NO INFORMATION WHICH MIGHT BE FURNISHED BY YOU IN THIS MATTER COULD PROPERLY BE BE REGARDED AS REQUIRING OR JUSTIFYING REVERSAL OF THE CONCLUSION STATED IN OUR DECISION OF MAY 20, 1960, THAT THERE WAS A REASONABLE BASIS FOR THE ACTIONS OF THE ADMINISTRATIVE OFFICERS IN REJECTING YOUR BIDS AND THAT THERE APPEARED NO PROPER BASIS FOR OBJECTION BY OUR OFFICE TO SUCH ACTIONS. THEREFORE, YOUR REQUEST FOR COPIES OF PAPERS INCLUDED IN THE FILE MAY NOT BE COMPLIED WITH AND FURTHER CORRESPONDENCE IN THIS MATTER WILL SERVE NO USEFUL PURPOSE.