B-143385, AUG. 18, 1960

B-143385, AUG. 18, 1960

TO MR. JOHN U. TRUSLOW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1960, WITH ATTACHMENT, AND JULY 19, 1960, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. CML-18-064-60-59 TO A BIDDER OTHER THAN YOUR SELF.

THE INVITATION DATED MAY 13, 1960, REQUESTED BIDS TO BE OPENED ON JUNE 14, 1960, FOR FURNISHING AN ESTIMATED QUANTITY OF EMBRYONATED AND FERTILE EGGS REQUIRED BY THE U.S. ARMY BIOLOGICAL WARFARE LABORATORIES, FORT DETRICK, MARYLAND, FOR THE PERIOD JULY 1, 1960, THROUGH JUNE 30, 1961. TWO BIDS WERE RECEIVED AND OPENED ON THE SCHEDULED DATE FROM YOU AND GEORGE F. SHAW. THE BIDS WERE AS FOLLOWS:

TABLE

GEORGE F. SHAW

EMBRYONATED EGGS ?1085 EACH

FERTILE EGGS .08 EACH

TERMS FOR PAYMENT NET 30 DAYS

TRUSLOW CHICKS

EMBRYONATED EGGS ?1167 EACH

FERTILE EGGS .0969 EACH

TERMS FOR PAYMENT 5 PERCENT-20 DAYS

YOUR TOTAL NET BID WAS IN THE AMOUNT OF $75,513.85 AS COMPARED TO THE TOTAL BID OF GEORGE F. SHAW IN THE AMOUNT OF $73,802.21. A PREAWARD SURVEY WAS CONDUCTED OF THE LOW BIDDER'S FACILITIES AND IT WAS THEREAFTER DETERMINED THAT GEORGE F. SHAW WAS THE LOWEST, QUALIFIED RESPONSIBLE BIDDER. ACCORDINGLY, CONTRACT NO. DA-18-064-404 CML-535 WAS AWARDED TO GEORGE F. SHAW ON JUNE 22, 1960, IN THE TOTAL AMOUNT OF HIS BID.

YOU CONTEND THAT THE SUCCESSFUL BIDDER WILL NOT BE ABLE TO MEET THE SPECIFICATIONS OF THE CONTRACT. ALSO, IT IS POINTED OUT THAT THE SUCCESSFUL BIDDER IS NOT ON THE LIST OF U.S. PULLORUM-TYPHOID CLEAN HATCHERIES ISSUED BY THE DEPARTMENT OF AGRICULTURE AND, POSSIBLY THAT HE WOULD IMPORT EGGS INTO MARYLAND, CONTRARY TO STATE LAW, WITHOUT A PERMIT INDICATING THAT HIS HATCHERY IS PULLORUM-TYPHOID CLEAN.

THE CONTRACT SPECIFICATIONS REQUIRE THAT THE EGGS MUST BE FROM FLOCKS EQUIVALENT TO THE "U.S. PULLORUM-TYPHOID CLEAN" RATING AFTER TESTING BY AN OFFICIAL STATE AGENCY; THAT CERTAIN SPECIFIED HOUSING AND FACILITIES REQUIREMENTS TO BE MET; THAT THE HATCHERY HANDLE ONLY EGGS FROM FLOCKS THAT HAVE AN OFFICIAL STATE RATING EQUIVALENT TO "U.S. PULLORUM-TYPHOID CLEAN; " AND THAT THE CONTRACTOR'S PLANT AND FACILITIES BE SUBJECT TO PERIODIC INSPECTION.

WE HAVE BEEN ADVISED BY THE PROCUREMENT AGENCY THAT THE CHICKEN FLOCKS UTILIZED BY THE CONTRACTOR HAVE BEEN INSPECTED AND CERTIFIED TO BE "U.S. PULLORUM-TYPHOID CLEAN" IN ACCORDANCE WITH THE PROVISIONS OF THE DEPARTMENT OF AGRICULTURE, AGRICULTURE RESEARCH SERVICE BULLETIN ENTITLED "THE NATIONAL POULTRY AND TURKEY IMPROVEMENT PLANTS.' WE ARE FURTHER ADVISED THAT EGGS PROCESSED FOR DELIVERY UNDER THE CONTRACT WERE PRODUCED IN HATCHERIES WHICH WERE TESTED TO BE ,U.S. PULLORUM TYPHOID CLEAN.'

THE QUESTION WHETHER A PARTICULAR BIDDER OR CONTRACTOR IS QUALIFIED TO PERFORM IN ACCORDANCE WITH CONTRACT SPECIFICATIONS IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION AND, IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION AS MADE, OUR OFFICE IS NOT REQUIRED TO TAKE ANY ACTION WITH RESPECT THERETO. 37 COMP. GEN. 430; ID. 703. IN VIEW OF THE INFORMATION ADDUCED FROM THE PREAWARD SURVEY AND THE ADVICE CONCERNING THE CONTRACTOR'S COMPLIANCE WITH THE SPECIFICATIONS, WE FIND NO BASIS TO CONCLUDE THAT GEORGE F. SHAW WAS NOT TECHNICALLY QUALIFIED TO PERFORM HIS CONTRACT IN STRICT ACCORDANCE WITH THE SPECIFICATIONS.

BY THE AWARD OF THE CONTRACT, WHICH WAS MADE SOLELY UPON THE LOW BIDDER'S UNDERTAKING TO COMPLY WITH THE SPECIFICATIONS, THE CONTRACTOR IS FULLY OBLIGATED TO MEET THE SPECIFICATIONS, AND PAYMENT FOR EGGS FURNISHED UNDER THE CONTRACT CANNOT PROPERLY BE MADE UNTIL SUCH COMPLIANCE HAS BEEN ESTABLISHED. THIS MATTER OF COMPLIANCE WITH THE SPECIFICATIONS IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY WHICH HAS THE SOLE RESPONSIBILITY FOR ADMINISTERING THE CONTRACT. WE HAVE BEEN ADVISED THAT THE CONTRACTOR HAS MET DELIVERY SCHEDULES AND THAT THE EGGS THUS FAR DELIVERED HAVE MET THE CONTRACT SPECIFICATIONS.

WE HAVE FOUND NO IRREGULARITIES IN CONNECTION WITH THE AWARD WHICH WAS MADE TO THE LOWEST, RESPONSIVE, RESPONSIBLE BIDDER AS REQUIRED BY 10 U.S.C. 2305.

IN VIEW OF THE FOREGOING, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR PROTEST.