B-157055, MAY 13, 1966

B-157055: May 13, 1966

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TO THE TECHNICAL SUPPORT COMPANY: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22. IT IS RESTRICTED TO SMALL BUSINESS CONCERNS. FEL IS THE LOW BIDDER. THE BASIS OF YOUR PROTEST IS THAT FEL IS NONRESPONSIBLE IN VIEW OF ITS POOR PERFORMANCE OR AN EXISTING CONTRACT FOR THE FALT AND ITS APPARENT INABILITY TO PRODUCE AN ACCEPTABLE ITEM WITHIN THE DELIVERY PERIOD SET FORTH IN THE IFB. WHICH INDICATED THAT FEL HAD TAKEN ACTION TO CORRECT THE DEFICIENCIES IN ITS PERFORMANCE ON OTHER FALT CONTRACTS AND THAT FEL WAS CAPABLE. THAT THE FACTS OF RECORD DID NOT AFFORD A LEGAL BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT FEL WAS A RESPONSIBLE BIDDER. YOUR PROTEST WAS DENIED. YOU ASSERTED THAT THE CONTRACTING OFFICER WAS POSTPONING AWARD UNDER THE IFB UNTIL COMMENCEMENT OF DELIVERY UNDER FEL'S EXISTING CONTRACT AND ASSURANCE THAT FEL WOULD PERFORM SATISFACTORILY.

B-157055, MAY 13, 1966

TO THE TECHNICAL SUPPORT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1965, RENEWING YOUR PROTEST BY TELEGRAM OF JUNE 21, 1965, AGAINST AWARD OF A CONTRACT TO FREQUENCY ENGINEERING LABORATORIES (FEL) UNDER INVITATION FOR BIDS (IFB) NO. AMC/A/-36-038-65-1033 WEI, ISSUED MAY 3, 1965, BY FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

THE PROCUREMENT IN QUESTION INVOLVES A COMPUTER LOGIC TEST ACT (FALT), AND IT IS RESTRICTED TO SMALL BUSINESS CONCERNS. FEL IS THE LOW BIDDER, AND THE BASIS OF YOUR PROTEST IS THAT FEL IS NONRESPONSIBLE IN VIEW OF ITS POOR PERFORMANCE OR AN EXISTING CONTRACT FOR THE FALT AND ITS APPARENT INABILITY TO PRODUCE AN ACCEPTABLE ITEM WITHIN THE DELIVERY PERIOD SET FORTH IN THE IFB. PURSUANT TO AN ADMINISTRATIVE REPORT ON YOUR ORIGINAL PROTEST, WHICH INDICATED THAT FEL HAD TAKEN ACTION TO CORRECT THE DEFICIENCIES IN ITS PERFORMANCE ON OTHER FALT CONTRACTS AND THAT FEL WAS CAPABLE, ACCORDING TO A PRE-AWARD SURVEY, OF MEETING THE PROCUREMENT NEEDS, WE ADVISED YOU IN OUR DECISION B-157055, DATED SEPTEMBER 2, 1965, THAT THE FACTS OF RECORD DID NOT AFFORD A LEGAL BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT FEL WAS A RESPONSIBLE BIDDER, AND, THEREFORE, YOUR PROTEST WAS DENIED.

IN YOUR LETTER OF NOVEMBER 22, YOU STATED THAT FEL HAD YET TO DELIVER AN ACCEPTABLE FALT UNIT UNDER ITS EXISTING CONTRACT, WHICH CASTS DOUBT WHETHER FEL COULD SUCCESSFULLY COMPLETE THE CONTRACT CONTEMPLATED BY THE IFB, AND THAT EVEN IF FEL COULD ACCOUNT FOR ITS DELINQUENCY, ITS PERFORMANCE OF THE PROPOSED CONTRACT WOULD BE AFFECTED. ALSO, YOU ASSERTED THAT THE CONTRACTING OFFICER WAS POSTPONING AWARD UNDER THE IFB UNTIL COMMENCEMENT OF DELIVERY UNDER FEL'S EXISTING CONTRACT AND ASSURANCE THAT FEL WOULD PERFORM SATISFACTORILY. FINALLY, YOU CONTEND, THE ISSUANCE OF THE IFB INDICATES A PRESENT REQUIREMENT FOR THE FALT EQUIPMENT, AND, THEREFORE, AWARD TO FEL UNDER THE IFB WOULD MAKE THE GOVERNMENT DEPENDENT UPON ONE SUPPLIER FOR THE ITEM FOR THE PERIOD IN QUESTION.

WHILE YOUR PROTEST OF JUNE 21 WAS AWAITING OUR DECISION, POSTPONEMENT OF THE AWARD WAS PROPER IN ACCORDANCE WITH THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-407.9 (B). AFTER OUR DECISION WAS RELEASED ON SEPTEMBER 2, HOWEVER, THE CONTRACTING OFFICER DELAYED AWARD ON THE BASIS OF KNOWLEDGE THAT FEL WAS ENCOUNTERING PRODUCTION DIFFICULTIES UNDER ITS EXISTING FALT CONTRACT. THE DETERMINATION TO POSTPONE AWARD RATHER THAN DECLARE FEL NON-RESPONSIBLE WAS MOTIVATED BY INDICATIONS THAT SOLUTION OF FEL'S PRODUCTION DIFFICULTIES APPEARED IMMINENT; BY THE FACT THAT FEL'S BID WAS $87,087.37 AND $111,288.83 LOWER THAN THE SECOND AND THIRD LOW BIDS, RESPECTIVELY; AND BY PRELIMINARY DATA INDICATING THAT THERE WERE SERIOUS QUESTIONS AS TO THE RESPONSIBILITY OF EITHER THE SECOND LOW BIDDER (YOU) OR THE THIRD LOW BIDDER.

WE ARE NOW ADVISED THAT ON THE BASIS OF A RESURVEY OF FEL, THE CONTRACTING OFFICER HAS MADE A DETERMINATION THAT FEL IS NOT RESPONSIBLE BECAUSE OF LACK OF TENACITY AND PERSEVERANCE IN FAILING TO ADHERE TO ITS DELIVERY SCHEDULE UNDER ITS PRIOR CONTRACT. IN ADDITION, THE SMALL BUSINESS ADMINISTRATION, UPON INQUIRY BY THE CONTRACTING OFFICER, HAS RULED THAT FEL IS NO LONGER SMALL BUSINESS FOR THE PROCUREMENT IN QUESTION. WE ARE ADVISED ALSO THAT THE CONTRACTING OFFICER DETERMINED THAT YOU WERE NOT A RESPONSIBLE BIDDER AND THAT YOUR APPLICATION FOR A CERTIFICATE OF COMPETENCY WAS DENIED BY SBA.

SINCE BOTH YOU AND FEL HAVE BEEN ELIMINATED FROM CONSIDERATION FOR AWARD UNDER THE IFB, YOUR PROTEST HAS BECOME ACADEMIC, AND NO FURTHER DISCUSSION BY OUR OFFICE OF FEL'S RESPONSIBILITY, OR OF THE OTHER ISSUES YOU HAVE RAISED, APPEARS NECESSARY.