B-142208, MAY 20, 1960

B-142208: May 20, 1960

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 4. YOU STATED THAT YOU WERE THE LOW BIDDER ON THE INSTANT PROCUREMENT BUT THAT THE AWARD WAS MADE TO BREIER OF AMSTERDAM. THE CONTRACTING OFFICER ADVISED YOU THAT YOUR PERFORMANCE UNDER A PRIOR YEAR CONTRACT NUMBERED DA-36-243 QM/CTM/-3576 FOR DELIVERY OF COVERALLS WAS UNSATISFACTORY FOR REASONS UNRELATED TO EITHER CAPACITY OR CREDIT. THERE IS NOTHING TO INDICATE THAT YOU PRESENTED ANY STATEMENT TO THE CONTRACTING OFFICER AS TO WHY YOU CONSIDERED HIS ACTION IMPROPER. YOU HAVE FURNISHED NO REASONS AS TO WHY YOU BELIEVE THAT THE CONTRACTING OFFICER WAS IN ERROR WHEN HE DETERMINED THAT YOUR PRIOR CONTRACT PERFORMANCE WAS UNSATISFACTORY AND THAT YOU ARE NOT A RESPONSIBLE BIDDER WITHIN THE MEANING OF SECTION 1-903.1 OF THE ARMED SERVICES PROCUREMENT REGULATION.

B-142208, MAY 20, 1960

TO L. W. FOSTER SPORTSWEAR CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1960, AND TO A LETTER DATED MAY 3, 1960, FROM YOUR ATTORNEYS, PROTESTING THE AWARD OF A CONTRACT TO BREIER OF AMSTERDAM UNDER INVITATION FOR BIDS NO. QM/CTM/ 36-243-60-406.

IN YOUR LETTER OF MARCH 4, 1960, YOU STATED THAT YOU WERE THE LOW BIDDER ON THE INSTANT PROCUREMENT BUT THAT THE AWARD WAS MADE TO BREIER OF AMSTERDAM. ALSO, YOU STATED THAT YOU HAD REQUESTED FROM THE CONTRACTING OFFICER A FULL AND DETAILED EXPLANATION AS TO WHY YOU DID NOT RECEIVE THE AWARD. YOU CONCLUDED BY STATING THAT "AT SUCH TIME AS THIS INFORMATION HAS BEEN MADE AVAILABLE TO THIS CONTRACTOR, WE SHALL SUBMIT OUR FORMAL APPEAL WITH RESPECT TO THE CONTRACTING OFFICER'S DECISION IN THIS MATTER, SO THAT WE MAY BE THE SUCCESSFUL AWARDEE.' BY LETTER DATED MARCH 9, 1960, THE CONTRACTING OFFICER ADVISED YOU THAT YOUR PERFORMANCE UNDER A PRIOR YEAR CONTRACT NUMBERED DA-36-243 QM/CTM/-3576 FOR DELIVERY OF COVERALLS WAS UNSATISFACTORY FOR REASONS UNRELATED TO EITHER CAPACITY OR CREDIT. THE CONTRACTING OFFICER SUGGESTED THAT YOU CONTACT HIM FOR A FURTHER DISCUSSION OF THE MATTER OR THAT YOU SUBMIT A SIGNED STATEMENT SETTING FORTH THE COMPLETE FACTS ON WHICH YOU BASED YOUR PROTEST. THE RECORD DOES NOT DISCLOSE WHETHER YOU AVAILED YOURSELF OF THE OPPORTUNITY TO DISCUSS THIS MATTER WITH THE CONTRACTING OFFICER. ALSO, THERE IS NOTHING TO INDICATE THAT YOU PRESENTED ANY STATEMENT TO THE CONTRACTING OFFICER AS TO WHY YOU CONSIDERED HIS ACTION IMPROPER. ALTHOUGH YOU INDICATED IN YOUR LETTER OF MARCH 4 THAT YOU WOULD PRESENT SOME DATA AT A LATER DATE FOR OUR CONSIDERATION, YOU HAVE FURNISHED NO REASONS AS TO WHY YOU BELIEVE THAT THE CONTRACTING OFFICER WAS IN ERROR WHEN HE DETERMINED THAT YOUR PRIOR CONTRACT PERFORMANCE WAS UNSATISFACTORY AND THAT YOU ARE NOT A RESPONSIBLE BIDDER WITHIN THE MEANING OF SECTION 1-903.1 OF THE ARMED SERVICES PROCUREMENT REGULATION.

IT APPEARS FROM THE RECORD IN THIS CASE THAT THE DETERMINATION BY THE CONTRACTING OFFICER REQUIRED TO BE MADE UNDER SECTION 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION WAS MADE IN RELATION TO YOUR PERFORMANCE UNDER CONTRACT NO. DA-36-243-QM/CTM/-3576 WHICH WAS AWARDED YOU ON THE BASIS OF MANUFACTURE AT YOUR PHILADELPHIA PLANT AT HANCOCK AND WESTMORELAND STREETS. THAT CONTRACT REPRESENTED A QUANTITY SET ASIDE FOR SMALL BUSINESS PARTICIPATION UNDER INVITATION FOR BIDS NO. QM/CTM/-36-243- 59-91. YOU HAD RECEIVED A PARTIAL AWARD (CONTRACT NO. DA-36-243-QM/CTM/- 3124) UNDER THE FORMAL PORTION OF THE INVOLVED INVITATION FOR 15,760 COVERALLS WHICH WAS BASED ON MANUFACTURE AT YOUR PLANT IN DUNCANNON, PENNSYLVANIA. YOU WERE ALSO IN LINE FOR A PORTION OF THE SET-ASIDE QUANTITY. BECAUSE THE AWARD FOR 15,760 COVERALLS UNDER THE FORMAL PART OF THE INVITATION FILLED YOUR CAPACITY AT THE DUNCANNON PLANT, THE CONTRACTING OFFICER ADVISED YOU THAT AN AWARD UNDER THE SET-ASIDE PORTION OF THE INVITATION COULD NOT BE MADE TO YOU ON THE BASIS OF MANUFACTURE AT THE DUNCANNON FACILITY. YOU THEN ADVISED THE CONTRACTING OFFICER YOU WOULD MANUFACTURE THE COVERALLS AT YOUR PHILADELPHIA FACILITY. ON THIS BASIS CONTRACT NO. DA-36-243-QM/CTM/-3576 WAS AWARDED TO YOU.

THE LATTER CONTRACT REQUIRED DELIVERIES TO BE MADE IN 6 MONTHLY INSTALLMENTS BEGINNING WITH APRIL 30, 1959, AND ENDING WITH SEPTEMBER 27, 1959. FINAL DELIVERY, HOWEVER, WAS NOT MADE UNTIL 109 DAYS AFTER THE ORIGINAL SCHEDULED DELIVERY DATE. YOUR DELINQUENCY IS OUTLINED IN A RATHER VOLUMINOUS REPORT BY THE CONTRACTING OFFICER WHICH TENDS TO SHOW THAT YOU STEADFASTLY REFUSED TO PRODUCE AT THE PHILADELPHIA FACILITY DESPITE ADEQUATE CAPACITY AT THAT PLACE. YOU SHOWED A STRONG DESIRE TO MANUFACTURE THE COVERALLS AT YOUR DUNCANNON PLANT DESPITE THE INSUFFICIENT CAPACITY THERE AND DESPITE THE FACT THAT YOU HAD AGREED TO USE THE PHILADELPHIA PLANT. APPARENTLY YOU WAITED UNTIL SUFFICIENT CAPACITY DEVELOPED AT THE DUNCANNON PLANT BUT BY THE TIME THE WORK THERE HAD PROGRESSED SUFFICIENTLY UNDER THE FIRST CONTRACT FOR THE CONTRACTING OFFICER TO PERMIT MANUFACTURE THERE, YOU WERE ALREADY DELINQUENT BY 72 DAYS.

THE RECORD BEFORE OUR OFFICE DOES NOT INDICATE THAT YOU FURNISHED ANY VALID REASON AS TO WHY YOU COULD NOT PROCEED WITH MANUFACTURE AT YOUR PHILADELPHIA PLANT AS YOU HAD PROMISED AND WHICH WAS THE MAIN REASON WHY YOU WERE AWARDED THE CONTRACT.

IN VIEW OF YOUR STEADFAST REFUSAL TO ABIDE BY THE DETERMINATION OF THE CONTRACTING OFFICER AND IN VIEW OF THE FACT THAT YOU WERE DELINQUENT IN DELIVERIES AS TO WHICH YOU HAVE FURNISHED NO EVIDENCE EXCUSING YOU FOR THE DELAY, OUR OFFICE AGREES THAT THERE WAS AMPLE BASIS, ON THE PRESENT RECORD, FOR THE CONTRACTING OFFICER'SDECISION THAT YOUR PERFORMANCE UNDER CONTRACT NO. DA-36-243-QM/CTM/-3576 WAS UNSATISFACTORY FOR REASONS UNRELATED TO EITHER CAPACITY OR CREDIT AND, CONSEQUENTLY, THAT HE COULD NOT MAKE AN AFFIRMATIVE DETERMINATION THAT YOU WERE RESPONSIBLE WITHIN THE MEANING OF ASPR 1-903. SEE 38 COMP. GEN. 289. ALTHOUGH THIS REGULATION MAY APPEAR TO BE HARSH IN ITS APPLICATION IN CERTAIN CASES, IT APPEARS DESIRABLE IN ORDER TO EFFECT EXPEDITIOUS PROCUREMENT OF SUPPLIES FOR GOVERNMENT USE.