B-145253, MAY 22, 1961

B-145253, MAY 22, 1961

TO GORDON, BRADY, CAFFREY AND KELLER:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 8, 1961, AND TO LETTER OF MARCH 14, PROTESTING ON BEHALF OF YOUR CLIENT, EAGLE LOCK CORPORATION,AGAINST THE AWARD OF CONTRACT NO. DA-11-199-ORD-605, TO WICO ELECTRIC COMPANY, THE SECOND LOW BIDDER UNDER INVITATION FOR BIDS NO. ORD- 11-199-61-26, ISSUED BY THE ORDNANCE WEAPONS COMMAND, ROCK ISLAND, ILLINOIS. YOUR PROTEST IS PREDICATED, IN SUBSTANCE, UPON THE GROUND THAT THE REJECTION OF YOUR CLIENT'S BID, BEING THE LOWEST RECEIVED, IS UNJUSTIFIED.

THE INVITATION SOUGHT BIDS ON 23,500 ELEVATING PINIONS TO COMPLY WITH THE SPECIFICATIONS AND ORDNANCE DRAWING NO. D 7312738, TO BE FURNISHED IN ACCORDANCE WITH THE DELIVERY SCHEDULE SET FORTH THEREIN. SINCE YOUR CLIENT SUBMITTED THE LOWEST OFFER A PRE-AWARD SURVEY, PURSUANT TO ADMINISTRATIVE REGULATIONS, WAS CONDUCTED BY PERSONNEL OF THE BOSTON ORDNANCE DISTRICT AS TO THE CAPABILITIES OF YOUR CLIENT PRIOR TO AWARD OF A CONTRACT. SUCH SURVEY DISCLOSED THAT THE BIDDER HAD PREPARED NEITHER ROUTING SHEETS NOR A BILL OF MATERIAL AND THAT PRODUCTION CAPABILITIES WERE NOT CONSIDERED ADEQUATE. THE SURVEY FURTHER INDICATED THAT THE BIDDER HAD NOT SPENT SUFFICIENT ENGINEERING TIME ON THE ITEM TO INTELLIGENTLY DISCUSS THE VARIOUS MANUFACTURING PROCESSES, THE METHOD TO BE USED, AND REFUSED TO SIGN A STATEMENT REQUIRED BY ORDNANCE PROCUREMENT INSTRUCTION 1-305.50B (2) THAT HE UNDERSTOOD THE ENGINEERING REQUIREMENTS OF THE PROPOSED CONTRACT AND COULD COMPLY THEREWITH. IT IS FURTHER REPORTED THAT THE BIDDER HAD NOT PERMITTED SUFFICIENT TIME FOR THE SHIPMENT, REHABILITATION AND ADAPTATION OF THE TOOLING TO FABRICATE THE ITEM TO MEET THE REQUIRED DELIVERY SCHEDULE. THE FACILITIES SURVEY OF EAGLE LOCK CORPORATION ALSO INCLUDED AN INSPECTION OF ITS REPORTED SUBCONTRACTOR, WOODSIDE PRECISIONICS CORPORATION (FORMERLY WOODSIDE SCREW MACHINE COMPANY) BOTH FIRMS BEING WHOLLY-OWNED SUBSIDIARIES OF PENN-AKRON CORPORATION. IN ADDITION TO THE TERMINATION OF CONTRACT NO. DA-11-199-ORD -556, PREVIOUSLY AWARDED TO THE LATTER CONCERN, TO WHICH EXCEPTION HAS BEEN TAKEN, THE RECORD SHOWS THAT IT IS ALSO DELINQUENT IN PERFORMANCE OF CONTRACT NO. DA-28-017-501-ORD-3905 AND PURCHASE ORDER CONTRACT NO. 30 069 -586-61.

QUESTIONS PERTAINING TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR ARE FOR DETERMINATION BY THE PROCURING AGENCY INVOLVED, AND IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR LACK OF ANY REASONABLE BASIS FOR A PARTICULAR FINDING, THIS OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO SUCH DETERMINATION. WHILE THE PROPRIETY OF THE REFERRED TO TERMINATION ACTION IS NOW PENDING ON APPEAL BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS UNDER DOCKET NO. 6936, WE FEEL THAT, AS TO THE INSTANT CASE, A BONA FIDE DETERMINATION ADEQUATELY SUPPORTED BY THE RECORD HAS BEEN MADE, WITHOUT ANY EVIDENCE OF BAD FAITH OR PERSONAL PREJUDICE. THEREFORE, THE DISCRETION EXERCISED BY THE PROCUREMENT OFFICIALS OF THE GOVERNMENT UNDER THESE CIRCUMSTANCES DOES NOT APPEAR TO BE SUBJECT TO QUESTION.

WE AGREE THAT THE FOREGOING DEFAULT CASE NOW ON APPEAL, REGARDLESS OF ITS OUTCOME, SHOULD NOT BE CONTROLLING IN THE INSTANT MATTER, SINCE A DETERMINATION MUST BE MADE UPON COMPLETION OF EACH PRE-AWARD SURVEY. HOWEVER, ON THE BASIS OF THE OTHER FACTS OF RECORD WE FEEL COMPELLED TO CONCUR WITH THE CONCLUSIONS OF THE BOARD OF AWARD, AND THE OFFICE, CHIEF OF ORDNANCE, THAT THE ACTION TAKEN BY THE CONTRACTING OFFICER WAS PROPER, AND THEREFORE WE MUST DENY THE PROTEST FILED ON BEHALF OF YOUR CLIENT.