B-144563, DEC. 27, 1968

B-144563, DEC. 27, 1968

TO CHARLES BESELER COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 24 AND NOVEMBER 4, 1968, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT TO EITHER OF THE TWO LOWER BIDDERS UNDER INVITATION FOR BIDS NO. F42600-69 B-0211, ISSUED BY THE DIRECTORATE OF PROCUREMENT AND PRODUCTION, OGDEN MATERIEL AREA, HILL AIR FORCE BASE, UTAH.

THE INVITATION, ISSUED ON AUGUST 30, 1968, SOLICITED BIDS FOR FURNISHING 1,250 PROJECTORS, STILL PICTURE TYPE, WITH RELATED DATA, IN ACCORDANCE WITH REFERENCED SPECIFICATIONS. THE FOLLOWING FIRMS SUBMITTED BIDS AT THE UNIT PRICES SET FORTH BELOW:

FIRM UNIT PRICE TELECTRO SYSTEMS CORP. (TELECTRO)

$195 BUHL OPTICAL CO. (BUHL) 218 CHARLES BESELER CO. (BESELER)

417 THE MICRO METRIC CORP. 720

THE PROCUREMENT AGENCY REPORTS THAT THE LOW BID SUBMITTED BY TELECTRO WAS EVALUATED AND DETERMINED TO BE RESPONSIVE TO THE INVITATION REQUIREMENTS. HOWEVER, YOU PROTEST AGAINST AWARD OF A CONTRACT TO EITHER TELECTRO OR BUHL ON THE BASIS THAT TELECTRO IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR AND BECAUSE BUHL FURNISHED UNSATISFACTORY EQUIPMENT IN THE PAST. TO DATE, NO AWARD OF CONTRACT HAS BEEN MADE PENDING OUR DECISION ON YOUR PROTEST.

IT APPEARS FROM THE RECORD BEFORE US THAT THE CONTRACTING OFFICER REQUESTED THE NEW YORK DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) TO CONDUCT A PREAWARD SURVEY OF TELECTRO TO DETERMINE IF IT HAS THE CAPABILITY TO PERFORM A CONTRACT WITHIN THE TERMS SPECIFIED IN THE INVITATION. SUCH PREAWARD SURVEY, AS CONTEMPLATED BY PARAGRAPH 1-905.4 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), IS USED BY THE CONTRACTING OFFICER IN DETERMINING A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY. IN THIS RESPECT, THE CONTRACTING OFFICER FURTHER REQUESTED THAT THE PREAWARD SURVEY TEAM GIVE SPECIAL CONSIDERATION TO TELECTRO'S CAPABILITY TO COMPLY WITH CHANGES TO THE SPECIFICATION WHICH HAD BEEN MADE SINCE THE LAST PROCUREMENT OF THESE PROJECTORS.

UNDER ASPR 1-904.1 A CONTRACTING OFFICER IS REQUIRED TO AFFIRMATIVELY DETERMINE THE RESPONSIBILITY OF THE PROSPECTIVE CONTRACTOR. IN ORDER TO SUPPORT SUCH A DETERMINATION, A PROSPECTIVE CONTRACTOR MUST HAVE ADEQUATE FINANCIAL RESOURCES OR THE ABILITY TO OBTAIN NECESSARY RESOURCES; BE ABLE TO PERFORM WITHIN THE DELIVERY SCHEDULE SET FORTH IN THE INVITATION; HAVE A SATISFACTORY RECORD OF PERFORMANCE AND INTEGRITY; AND BE OTHERWISE QUALIFIED AND ELIGIBLE TO RECEIVE AN AWARD. INSOFAR AS CONCERNS THE RESPONSIBILITY OF TELECTRO, WE ARE ADVISED THAT THE PREAWARD SURVEY WILL FULLY SUPPORT AN AFFIRMATIVE DETERMINATION THAT TELECTRO IS A RESPONSIBLE PROSPECTIVE CONTRACTOR. THE CONTRACTING OFFICER HAS EVALUATED THE PRICES SUBMITTED BY TELECTRO AND THE NEXT LOW BIDDER, BUHL, THE PRIOR SUPPLIER OF THE PROJECTORS, AND HAS DETERMINED THAT THE PRICE BID BY TELECTRO IS REASONABLE. IN VIEW OF THE FOREGOING, IT IS REPORTED THAT THE CONTRACTING OFFICER INTENDS TO DETERMINE THAT TELECTRO AS THE LOWEST RESPONSIBLE BIDDER IS ENTITLED TO AN AWARD UNDER THIS INVITATION.

SINCE THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S OVERALL ABILITY TO PERFORM IN ACCORDANCE WITH THE TERMS OF A CONTRACT AT THE PRICE BID IS THE PRIMARY RESPONSIBILITY OF THE PROCUREMENT AGENCY INVOLVED, OUR OFFICE HAS CONSISTENTLY ADHERED TO THE VIEW THAT THE ADMINISTRATIVE DETERMINATION WILL NOT BE QUESTIONED UNLESS THERE IS NO SUBSTANTIAL BASIS FOR THE DETERMINATION, OR THERE IS EVIDENCE OF BAD FAITH. 37 COMP. GEN. 430, 435; 38 ID. 131, 133; 46 ID. 371, 372. IN VIEW OF THE RECORD BEFORE US, WE WOULD NOT BE JUSTIFIED IN TAKING EXCEPTION TO THE AWARD OF A CONTRACT TO TELECTRO AS THE LOWEST RESPONSIVE BIDDER, PROVIDED, OF COURSE, THE CONTRACTING OFFICER MAKES THE REQUIRED AFFIRMATIVE DETERMINATION OF RESPONSIBILITY.

SINCE THE RESPONSIBILITY OF BUHL NO LONGER IS IN ISSUE, THE MATTER OF ITS PRIOR CONTRACT PERFORMANCE NEED NOT BE DISCUSSED FULLY HERE. IT IS SUFFICIENT TO POINT OUT THAT YOUR CONTENTION REGARDING THE QUESTIONABLE QUALITY OF THE BUHL PROJECTOR IS COMPLETELY REFUTED BY THE RECORD.