B-140684, OCT. 6, 1959

B-140684: Oct 6, 1959

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TO PENN STATE COAT AND APRON MANUFACTURING COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 9. IT IS YOUR CONTENTION. THAT AWARD OF THE CONTRACT SHOULD HAVE BEEN MADE TO YOU SINCE YOU HAVE INSTITUTED AND ESTABLISHED MANUFACTURING CONTROLS AND HAVE COMPLIED WITH TIGHTENED INSPECTION SO THAT THERE IS. THAT PRODUCTION UNDER THE CONTRACT PRESENTLY BEING PERFORMED WAS DELAYED DUE TO UNAVAILABLE LABOR SUPPLY AT DATE OF AWARD. DA 36-243 QM/CTM) 3603 WAS AWARDED TO YOU ON JANUARY 12. THE DELAY IN AWARDING OF THE CONTRACT WAS DUE TO YOUR PROTEST DURING WHICH TIME YOU EXTENDED YOUR DATE OF ACCEPTANCE TO JANUARY 16. SURVEYS OF YOUR FACILITIES BY ADMINISTRATIVE PERSONNEL DISCLOSED THAT THE DELAY IN PERFORMANCE OF THE SUBJECT CONTRACT WAS DUE TO PREFERENTIAL TREATMENT BEING ACCORDED COMMERCIAL ACCOUNTS UNDER THE POLICY.

B-140684, OCT. 6, 1959

TO PENN STATE COAT AND APRON MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1959, AND ENCLOSURES, PROTESTING TO THE CONTRACTING OFFICER, MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA QUARTERMASTER DEPOT, AGAINST THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. QM/CTW/-36-243-59 736, AND CANCELLATION OF THE PROCUREMENT UNDER ITEM NO. 1 OF THE INVITATION.

IT IS YOUR CONTENTION, IN SUBSTANCE, THAT AWARD OF THE CONTRACT SHOULD HAVE BEEN MADE TO YOU SINCE YOU HAVE INSTITUTED AND ESTABLISHED MANUFACTURING CONTROLS AND HAVE COMPLIED WITH TIGHTENED INSPECTION SO THAT THERE IS, AND HAS BEEN, ADEQUATE QUALITY CONTROL, GOOD PRODUCTION PLANNING, PROPER UTILIZATION OF PERSONNEL, AND A SATISFACTORY RECORD OF PERFORMANCE. WITH RESPECT TO YOUR UNSATISFACTORY PERFORMANCE UNDER CONTRACT NO. DA 36-243-QM/CTM) 3603, YOU ALLEGE, IN LETTER OF JULY 9, 1959, THAT PRODUCTION UNDER THE CONTRACT PRESENTLY BEING PERFORMED WAS DELAYED DUE TO UNAVAILABLE LABOR SUPPLY AT DATE OF AWARD, WHICH HAD BEEN EXTENDED BY THE GOVERNMENT, AND BECAUSE OF A CHANGE IN THE SPECIFICATIONS.

AN EXAMINATION OF THE ADMINISTRATIVE RECORD TRANSMITTED TO US WITH YOUR LETTER OF PROTEST SHOWS THAT THE SAID CONTRACT NO. DA 36-243 QM/CTM) 3603 WAS AWARDED TO YOU ON JANUARY 12, 1959, FOR DELIVERY OF 261,000 PAIR OF MEN'S TROUSERS WITHIN 150 DAYS, OR BY JUNE 11, 1959. THE DELAY IN AWARDING OF THE CONTRACT WAS DUE TO YOUR PROTEST DURING WHICH TIME YOU EXTENDED YOUR DATE OF ACCEPTANCE TO JANUARY 16, 1959. SURVEYS OF YOUR FACILITIES BY ADMINISTRATIVE PERSONNEL DISCLOSED THAT THE DELAY IN PERFORMANCE OF THE SUBJECT CONTRACT WAS DUE TO PREFERENTIAL TREATMENT BEING ACCORDED COMMERCIAL ACCOUNTS UNDER THE POLICY, AS STATED BY YOUR MR. LAZARUS, OF CONSIDERING GOVERNMENT ORDERS AS "FILL INS" IN YOUR PRODUCTION SCHEDULES. BASED UPON THE DETERMINATION THAT AN INSUFFICIENT NUMBER OF EMPLOYEES WERE ASSIGNED TO PRODUCTION OF THE GOVERNMENT CONTRACT IT WAS DETERMINED THAT FAILURE TO COMPLY WITH THE DELIVERY SCHEDULE WAS DUE TO POOR BUSINESS PRACTICES AND LACK OF RESPONSIBILITY. THE RECORD FURTHER SHOWS THAT OF THE 33 CONTRACTS AWARDED TO YOU SINCE 1951, DELAYS IN DELIVERY OCCURRED UNDER 20 CONTRACTS.

WITH RESPECT TO YOUR ALLEGATION THAT A CHANGE IN THE SPECIFICATIONS UNDER CONTRACT NO. DA-36-243-QM/CTM) 3603 CONTRIBUTED TO YOUR DELAY IN PERFORMANCE, THE ADMINISTRATIVE REPORT STATES THAT SUCH AMENDMENT TO THE SPECIFICATIONS WAS REASONABLE AND IN ACCORDANCE WITH GOOD COMMERCIAL PRACTICE; THAT THE DELAYS WERE, IN FACT, DUE TO THE DIFFICULTY YOU ENCOUNTERED IN OTHER OPERATIONS.

ANY QUESTION AS TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR IS PRIMARILY FOR DETERMINATION BY THE PROCUREMENT AGENCY AND, IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR OF NO REASONABLE BASIS FOR THE DETERMINATION AS MADE, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO SUCH DETERMINATION. IN THIS CASE, WE FEEL THAT THE ADMINISTRATIVE FINDINGS CONSTITUTED A BONA FIDE DETERMINATION ADEQUATELY SUPPORTED BY SUBSTANTIAL EVIDENCE.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY.