B-141731, FEB. 25, 1960

B-141731: Feb 25, 1960

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TO ALKAY PRODUCTS: REFERENCE IS MADE TO COPY OF LETTER DATED JANUARY 6. IT IS YOUR CONTENTION. THAT YOU WERE QUALIFIED TO PERFORM THE REQUIRED WORK. THAT THE PROCUREMENT AGENCY ERRED IN FAILING TO AWARD YOU THE CONTRACT SINCE YOUR BID WAS THE LOWEST OFFER RECEIVED. SINCE YOUR PROPOSAL WAS LOWEST OF THE SIX BIDS SUBMITTED. IT WAS DETERMINED THEREBY THAT YOU WERE NOT A REGULAR DEALER IN THE SUPPLIES AND SERVICES REQUIRED. THAT YOU HAVE NO OFFICE OR FIELD EMPLOYEES. THAT APPARENTLY YOUR FIRM WAS CONCEIVED SOLELY FOR THE PURPOSE OF BIDDING ON THIS PROCUREMENT. THE SURVEY FURTHER DISCLOSED THAT ALKAY PRODUCTS IS COMPOSED ONLY OF ALEXANDER BRADLEY. BRADLEY WAS A SALES REPRESENTATIVE OF DICTOGRAPH PRODUCTS.

B-141731, FEB. 25, 1960

TO ALKAY PRODUCTS:

REFERENCE IS MADE TO COPY OF LETTER DATED JANUARY 6, 1960, ADDRESSED TO HONORABLE JAMES B. UTT, MEMBER OF CONGRESS, WHICH, IN EFFECT, PROTESTS AGAINST THE AWARD OF CONTRACT TO THE GUSTAV-HIRSCH ORGANIZATION, INC., UNDER INVITATION FOR BIDS NO. 04-606-60-77, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, THROUGH THE PROCUREMENT DIVISION, SACRAMENTO AIR MATERIEL AREA, FOR THE INSTALLATION AND REHABILITATION OF COMMUNICATIONS SYSTEMS AND FACILITIES IN THE STATE OF ALASKA. IT IS YOUR CONTENTION, IN SUBSTANCE, THAT YOU WERE QUALIFIED TO PERFORM THE REQUIRED WORK, AND THAT THE PROCUREMENT AGENCY ERRED IN FAILING TO AWARD YOU THE CONTRACT SINCE YOUR BID WAS THE LOWEST OFFER RECEIVED.

THE RECORD DISCLOSES THAT PURSUANT TO THE ARMED SERVICES PROCUREMENT REGULATION ADMINISTRATIVE PERSONNEL UNDERTOOK A PRE-AWARD FACILITIES CAPABILITY SURVEY OF YOUR ORGANIZATION, SINCE YOUR PROPOSAL WAS LOWEST OF THE SIX BIDS SUBMITTED. IT WAS DETERMINED THEREBY THAT YOU WERE NOT A REGULAR DEALER IN THE SUPPLIES AND SERVICES REQUIRED; THAT YOU LACKED FINANCIAL CAPABILITY OR DEMONSTRATED CREDIT; THAT YOU POSSESS NO EQUIPMENT, FACILITIES, OR STOCK; THAT YOU HAVE NO OFFICE OR FIELD EMPLOYEES; THAT YOUR COMPANY HAS HAD NO EXPERIENCE IN SUCH CONTRACT WORK; AND THAT APPARENTLY YOUR FIRM WAS CONCEIVED SOLELY FOR THE PURPOSE OF BIDDING ON THIS PROCUREMENT, WITH THE INTENTION OF ARRANGING FOR PERFORMANCE ONLY IN EVENT OF GETTING AN AWARD OF A CONTRACT. THE SURVEY FURTHER DISCLOSED THAT ALKAY PRODUCTS IS COMPOSED ONLY OF ALEXANDER BRADLEY, APPARENTLY ITS CREATOR, AND HIS WIFE; THAT FORMERLY MR. BRADLEY WAS A SALES REPRESENTATIVE OF DICTOGRAPH PRODUCTS, INC.; AND THAT CONTRARY TO HIS REPRESENTATIONS THE DUTIES OF SUCH FORMER EMPLOYMENT DID NOT INVOLVE ENGINEERING, INSTALLATION, OR MAINTENANCE OF EQUIPMENT SIMILAR TO THE FACILITIES COVERED BY THE SUBJECT INVITATION.

THE APPLICABLE STATUTE (10 U.S.C. 2305 (B) ( PERTAINING TO THE MATTER PROVIDES THAT AWARD AFTER FORMAL ADVERTISING SHALL BE "TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.' RESPONSIBLE BIDDER IS ONE WHO POSSESSES NOT ONLY THE PHYSICAL AND FINANCIAL CAPABILITY TO PERFORM, BUT ALSO CERTAIN INTANGIBLES INCLUDING SKILL, EXPERIENCE, REPUTATION, AND INTEGRITY. ON THE BASIS OF THE FACTS DEVELOPED, A NEGATIVE RATING WAS ACCORDED YOUR COMPANY ON EACH ASPECT OF YOUR PHYSICAL AND FINANCIAL CAPABILITIES, AND IT WAS ALSO FOUND THAT YOU HAD FURNISHED AMBIGUOUS AND UNSATISFACTORY INFORMATION TO THE GOVERNMENT CONCERNING YOUR EXPERIENCE AND OTHER QUALIFICATIONS. THE FINDINGS WERE REVIEWED BY THE FACILITY ADVISORY BOARD AND SUSTAINED WITHOUT EXCEPTION. UNDER THE CIRCUMSTANCES IT MAY BE CONCLUDED THAT AWARD WAS MADE TO THE LOWEST RESPONSIBLE AND QUALIFIED BIDDER.

QUESTIONS PERTAINING TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR ARE FOR DETERMINATION PRIMARILY BY THE PROCURING AGENCY INVOLVED AND, IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR THE LACK OF ANY REASONABLE BASIS FOR A PARTICULAR FINDING, THERE WOULD BE NO JUSTIFICATION FOR OBJECTION BY OUR OFFICE TO SUCH DETERMINATION. IN THIS CASE WE FEEL THAT THE ADMINISTRATIVE FINDINGS CONSTITUTED A BONA FIDE DETERMINATION, PARTICULARLY IN VIEW OF THE OBVIOUS EXIGENCIES ATTENDING THIS PROCUREMENT.

ACCORDINGLY, WE MUST CONCLUDE THAT THERE IS NO BASIS UPON WHICH THIS OFFICE MAY PROPERLY OBJECT TO THE ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE.