B-145020, JUN. 20, 1961

B-145020: Jun 20, 1961

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TO ASSOCIATED WIRE INDUSTRIES: FURTHER REFERENCE IS MADE TO THE COPY OF YOUR LETTER DATED FEBRUARY 6. WHICH WAS ADDRESSED TO THE ROME AIR MATERIEL AREA. IN RESPONSE TO THE INVITATION WHICH WAS ISSUED ON OCTOBER 31. THAT YOU WERE A NON-RESPONSIBLE CONTRACTOR AND. A DETAILED STUDY OF YOUR CAPABILITIES TO SATISFACTORILY PERFORM WAS MADE BY THE DEPARTMENT OF THE AIR FORCE IN THE PREAWARD SURVEY IN ACCORDANCE WITH THE DEPARTMENT'S EXISTING PROCUREMENT REGULATIONS. IT IS A GENERAL RULE THAT THE QUESTION AS TO THE RESPONSIBILITY AND CAPABILITY OF A BIDDER ON A PROPOSED GOVERNMENT CONTRACT IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY AND SUCH DETERMINATION WHEN MADE WILL NOT BE QUESTIONED BY THE COURTS OR OUR OFFICE.

B-145020, JUN. 20, 1961

TO ASSOCIATED WIRE INDUSTRIES:

FURTHER REFERENCE IS MADE TO THE COPY OF YOUR LETTER DATED FEBRUARY 6, 1961, WHICH WAS ADDRESSED TO THE ROME AIR MATERIEL AREA, BY THE ROME AIR MATERIEL AREA, YOU SUBMITTED A BID OFFERING TO FURNISH GRIFFISS AIR FORCE BASE, NEW YORK, PROTESTING THE ACTION TAKEN BY THE AIR MATERIEL AREA UNDER INVITATION NO. 30-635-61-169.

IN RESPONSE TO THE INVITATION WHICH WAS ISSUED ON OCTOBER 31, 1960, ITEM NO. 7, COVERING 35,000 POUNDS OF THE SPECIFIED TYPE OF ELECTRICAL WIRE AT $63.10 PER 100 POUNDS. THE WARREN WIRE COMPANY, POUNAL, VERMONT, SUBMITTED THE ONLY OTHER BID FOR ITEM NO. 7 IN THE AMOUNT OF $64.60 PER 100 POUNDS. AS THE RESULT OF A PREAWARD SURVEY OF YOUR QUALIFICATIONS THE AIR MATERIEL AREA DECIDED TO MAKE AN AWARD ON JANUARY 26, 1961, FOR ITEM NO. 7 IN THE TOTAL AMOUNT OF $22,610 TO THE WARREN WIRE COMPANY. YOU REQUEST THAT THE CONTRACT BE CANCELED ON THE GROUND THAT THE ACCEPTANCE OF OTHER THAN YOUR LOW BID MAKES THE AWARD ILLEGAL.

THE DEPARTMENT OF THE AIR FORCE PREPARED A FACILITY CAPABILITY REPORT AS TO YOUR QUALIFICATIONS TO ADEQUATELY PERFORM THE CONTRACT ON THE BASIS OF THE PREAWARD SURVEY REFERRED TO ABOVE. THE REPORT SHOWED NEGATIVE FINDINGS WITH RESPECT TO YOUR FACILITIES, ENGINEERING AND PRODUCTION CAPABILITIES, ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE, AVAILABILITY OF MATERIAL, FINANCIAL STABILITY AND BUSINESS PRACTICES. ON THE BASIS OF SUCH NEGATIVE FINDINGS THE CONTRACTING OFFICER MADE A DETERMINATION, PURSUANT TO PARAGRAPH 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION, THAT YOU WERE A NON-RESPONSIBLE CONTRACTOR AND, THEREFORE, NOT ENTITLED TO AN AWARD OF THE CONTRACT. THUS, A DETAILED STUDY OF YOUR CAPABILITIES TO SATISFACTORILY PERFORM WAS MADE BY THE DEPARTMENT OF THE AIR FORCE IN THE PREAWARD SURVEY IN ACCORDANCE WITH THE DEPARTMENT'S EXISTING PROCUREMENT REGULATIONS. MOREOVER, IT IS A GENERAL RULE THAT THE QUESTION AS TO THE RESPONSIBILITY AND CAPABILITY OF A BIDDER ON A PROPOSED GOVERNMENT CONTRACT IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY AND SUCH DETERMINATION WHEN MADE WILL NOT BE QUESTIONED BY THE COURTS OR OUR OFFICE, IN THE ABSENCE OF A SHOWING OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 96; 20 COMP. GEN. 862; 37 ID. 430, 435.

ACCORDINGLY, SINCE IT HAS BEEN DETERMINED ON THE BASIS OF COMPETENT EVIDENCE THAT YOU DID NOT MEET THE PRESCRIBED STANDARDS OF RESPONSIBILITY RELATING TO YOUR ABILITY TO PERFORM THE REQUIRED CONTRACT WORK, NO LEGAL BASIS EXISTS FOR DISTURBING THE ADMINISTRATIVE ACTIONS TAKEN UNDER THE INVITATION.