B-155738, APR. 5, 1965

B-155738, APR. 5, 1965

TO EASTERN TOOL AND MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1964, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT TO EISEN BROTHERS, INC., UNDER INVITATION FOR BIDS NO. AMC/A/-11-173-65-40, BY THE DEPARTMENT OF THE ARMY.

INVITATION FOR BIDS NO. AMC/A/-11-173-65-40 WAS ISSUED NOVEMBER 9, 1964, COVERING 1,216,180 PROJECTILES, 40 MM., M406, METAL PARTS. BIDS WERE OPENED ON DECEMBER 3, 1964, AND EISEN BROTHERS WAS FOUND TO BE THE LOW RESPONSIVE BIDDER. A PREAWARD SURVEY WAS CONDUCTED AT LODI, NEW JERSEY, BY REPRESENTATIVES OF THE NEW YORK PROCUREMENT DISTRICT AND PICATINNY ARSENAL ON DECEMBER 28, 1964, AND IT IS UNDERSTOOD THAT EISEN BROTHERS WAS DETERMINED TO BE RESPONSIBLE AND HAS BEEN AWARDED THE CONTRACT.

THE INVITATION CONTAINS (PAGE 21) A PROVISION ENTITLED "USE OF GOVERNMENT -OWNED PROPERTY.' PARAGRAPH 4 THEREOF PROVIDES FOR THE EVALUATION OF THE USE OF SUCH GOVERNMENT PROPERTY, THE BIDDER BEING REQUIRED TO SUBMIT THE USE EVALUATION FACTOR PER UNIT PROCURED, COMPUTED BY THE FORMULA SET FORTH IN SUBPARAGRAPH 4C ON PAGE 23 OF THE INVITATION. ENCLOSURES SUBMITTED WITH DEPARTMENT OF THE ARMY REPORT FILE SHOW THAT EISEN BROTHERS FURNISHED A LISTING OF GOVERNMENT-OWNED FACILITIES CURRENTLY ASSIGNED TO IT TO BE USED FOR PERFORMANCE UNDER THIS BID, IN THE TOTAL AMOUNT OF $36,310.32, WITH A SPECIAL TOOLING TOTAL OF $659. ON THIS VALUE BASIS THE USE EVALUATION FACTOR PER UNIT PROCURED SUBMITTED WITH ITS BID WAS $0.0028. YOUR LISTING OF SUCH FACILITIES WAS IN THE TOTAL AMOUNT OF $27,599, WITH A SPECIAL TOOLING TOTAL OF $13,727. THE USE EVALUATION FACTOR PER UNIT PROCURED SUBMITTED WITH YOUR BID WAS $0.003736.

YOU STATE, IN EFFECT, THAT EISEN BROTHERS HAS DECLARED APPROXIMATELY ONE- HALF OF THE GOVERNMENT-FURNISHED EQUIPMENT TO BE USED IN CONTRACT PERFORMANCE AND THAT YOU QUESTION THE COMPLETENESS, RESPONSIVENESS AND RESPONSIBILITY OF THE APPARENT LOW BID. IN THE EVENT THAT THERE IS A MISTAKE IN FACT AS TO THE NUMBER OF MACHINES REQUIRED FOR CONTRACT PERFORMANCE, YOU STATE THAT YOUR COMPANY IS AGREEABLE TO THE ASSUMPTION THAT IT IS IN ERROR AND REQUESTS THAT IT BE PERMITTED TO CORRECT ITS GOOD FAITH MISTAKE.

WITH REFERENCE TO THE EQUIPMENT LISTING, EISEN BROTHERS LISTS ONE COILING MACHINE AT A COST OF $11,691.22 WHILE YOUR COMPANY LISTS A WIREFORMING MACHINE AT $11,691 PLUS A COILING MACHINE, SPRING, AT $8,250.

YOU REQUESTED AND WERE GRANTED OPPORTUNITY TO PRESENT ADDITIONAL INFORMATION TO THE CONTRACTING OFFICER, AMMUNITION PROCUREMENT AND SUPPLY AGENCY (APSA) ON JANUARY 5, 1965. IN THIS MEETING YOU ALLEGED THAT (1) EISEN BROTHERS, INC., HAD NOT LISTED IN ITS BID ALL GOVERNMENT-OWNED PROPERTY IT INTENDED TO USE TO PRODUCE THE ITEMS COVERED BY THE INVITATION AND THAT (2) IF EISEN BROTHERS DID INTEND TO USE ONLY THAT TOOLING LISTED IN ITS BID, THIS EQUIPMENT IS NOT SUFFICIENT TO ENABLE EISEN BROTHERS TO SUCCESSFULLY PERFORM UNDER THE TERMS AND CONDITIONS OF THE INVITATION. YOUR BID YOU LISTED TWO GOVERNMENT-OWNED MACHINES WHICH YOU KNEW TO BE IN A SUBCONTRACTOR'S POSSESSION COMMON TO BOTH YOUR COMPANY AND EISEN BROTHERS. EISEN BROTHERS DESIGNATED ONLY ONE SUCH MACHINE. YOU STATE THAT YOU INCLUDED TWO MACHINES ON THE GOOD FAITH BELIEF THAT TWO MACHINES WERE REQUIRED TO PERFORM THE WORK IN QUESTION BECAUSE TWO SUCH MACHINES HAD BEEN USED IN THE PAST. A BACKUP MACHINE, YOU STATED, IS NORMALLY REQUIRED TO ASSURE CONTINUITY OF PRODUCTION, AND ALSO, THAT YOU BELIEVED THAT A CONTRACT PREVIOUSLY PLACED BY YOU WITH THE SUBCONTRACTOR, TO BE PERFORMED BY THE SUBCONTRACTOR CONCURRENTLY WITH THE PRESENT PROCUREMENT, WOULD REQUIRE THE USE OF A SECOND MACHINE TO ACCOMPLISH THE REQUIRED CONCURRENT PRODUCTION.

FROM THE REASON GIVEN FOR YOUR PROTEST IT IS APPARENT THAT YOU ARE QUESTIONING NEITHER THE PRINCIPLE OF EVALUATION AS APPLIED TO COMPETITIVE ADVANTAGE NOR THE PROCEDURES OUTLINED FOR ARRIVING AT THE PRICE AS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 13 501 ET SEQ. THE SENSE OF YOUR PROTEST APPEARS TO BE DIRECTED LARGELY TO THE RESPONSIBILITY AND CAPACITY OF THE LOW BIDDER.

THE RECORD BEFORE THIS OFFICE SHOWS THAT PROPER AND EQUAL EVALUATION AS TO ALL FACTORS FOR BOTH BIDDERS INCLUDING FACILITIES AND TOOLING WAS MADE BY THE CONTRACTING OFFICER ON THE BASIS OF THE LISTING SUBMITTED BY BOTH YOUR COMPANY AND EISEN BROTHERS. MOREOVER, THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY OF EISEN TO CARRY OUT THE TERMS OF THE CONTRACT LIMITED BY THE EQUIPMENT AND SPECIAL TOOLING WHICH IT HAD LISTED IN ITS OFFER. THIS SURVEY INDICATED WITHOUT RESERVATION THAT THE COMPANY WAS CAPABLE OF SUCH PERFORMANCE. IN VIEW OF YOUR PROTEST A SECOND AND SPECIAL SURVEY WAS MADE ON OR ABOUT JANUARY 11, 1965, REPRESENTATIVES OF APSA, PICATINNY ARSENAL, AND THE NEW YORK PROCUREMENT DISTRICT. BESIDE A GENERAL INVESTIGATION INTO ALL ASPECTS OF THE EQUIPMENT AND TOOLING FACTORS SUBMITTED BY EISEN BROTHERS THE FOLLOWING SPECIFIC QUESTIONS WERE ASKED OF THE SPECIAL SURVEY TEAM:

"1. DID EISEN BROTHERS, INC., LIST ALL THE GOVERNMENT-OWNED TOOLING IT INTENDED TO USE IN ITS BID ON INVITATION AMC/A/-11-173-65-40?

"2. IF EISEN'S LISTING IS CORRECT, DOES EISEN HAVE SUFFICIENT GOVERNMENT- OWNED AND PRIVATELY-OWNED EQUIPMENT TO SUCCESSFULLY PERFORM IN ACCORDANCE WITH INVITATION TERMS AND CONDITIONS?

"3. TO ANSWER A SPECIFIC QUESTION RAISED BY EASTERN TOOL AND MANUFACTURING COMPANY DOES ONE GOVERNMENT-OWNED TORRINGTON WIRE FORMING MACHINE U.S. GOVERNMENT TAG NO. USA-3477-2 LOCATED IN PLANT OF SUBCONTRACTOR, STANDARD SPRING AND MANUFACTURING COMPANY, HAVE SUFFICIENT CAPACITY TO MEET IFB REQUIREMENTS?

ALL THESE QUESTIONS WERE ANSWERED IN THE AFFIRMATIVE.

THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS THE FUNCTION OF EACH CONTRACTING OFFICER AS HE PASSES UPON THE BIDS RECEIVED FOR AN AWARD TO BE MADE BY HIM. THE REGULATIONS AUTHORIZE THE CONTRACTING OFFICER TO CONSIDER INFORMATION FROM EVERY AND ANY SOURCE THAT HE CONSIDERS PROPER AND NECESSARY IN THE CIRCUMSTANCES. 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 OFFICERS INVOLVED SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE BRUNT OF ANY DIFFICULTY 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 ACTIONS OF THOSE OFFICIALS.

ONCE THE CONTRACTING OFFICER MAKES HIS DETERMINATION, IT IS ENTITLED TO GREAT WEIGHT FOR, AS THE COURTS HAVE INDICATED, THE FINAL SELECTION OF A CONTRACTOR INVOLVES DISCRETION THAT IS NOT ORDINARILY SUBJECT TO REVIEW. O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762.IN FACT, THE COURTS HAVE GONE TO THE EXTENT OF INDICATING THAT CONDUCT OF THE CONTRACTING OFFICER TANTAMOUNT TO FRAUD BE PROVED AS A CONDITION TO REVIEWING THE CONTRACTING OFFICER'S DETERMINATION. IN THIS CONNECTION IT SHOULD BE UNDERSTOOD THAT THIS OFFICE IS NOT REQUIRED TO DETERMINE WHETHER OR NOT A FIRM IS RESPONSIBLE. THIS OFFICE MERELY ASCERTAINS WHETHER THE INFORMATION THAT THE CONTRACTING OFFICER RELIED UPON REASONABLY SUPPORTED THE CONCLUSION HE REACHED.

IT APPEARS FROM THE RECORD THAT THE ADMINISTRATIVE ACTION TAKEN IN EVALUATING THE BIDS, IN THE PROCEDURES FOLLOWED IN THE PREAWARD SURVEY AND IN REVIEWING THE ALLEGATIONS OF YOUR PROTEST WERE PROPER AND NO LEGAL BASIS EXISTS FOR TAKING EXCEPTION THERETO BY THIS OFFICE. 37 COMP. GEN. 430, 435.

WITH RESPECT TO YOUR REQUEST FOR PERMISSION TO AMEND YOUR BID TO CORRESPOND TO THE FACTUAL REQUIREMENTS OF GOVERNMENT-OWNED PROPERTY IN THE PROCUREMENT YOU ARE ADVISED THAT THE MISTAKE ALLEGED IS NOT A MISTAKE IN BID AUTHORIZED TO BE CORRECTED AS THE BIDS SUBMITTED REFLECT THE BIDDER'S INTENDED JUDGMENT AS TO THE EQUIPMENT REQUIRED FOR PERFORMANCE. ACCORDANCE WITH THE RULE STATED IN 37 COMP. GEN. 210, YOU MAY NOT BE PERMITTED TO DISPLACE OTHER BIDDERS MERELY BY CHOOSING TO ALLEGE ERROR. SEE 39 COMP. GEN. 531.