B-146174, SEP. 7, 1961

B-146174, SEP. 7, 1961

TO FUEL SERVICE OF ENTERPRISE, INC.:

BY LETTERS DATED JUNE 19 AND JULY 2, 1961, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO JOHN F. WATSON UNDER INVITATION FOR BIDS NO. 08 620 -61-33, ISSUED ON MAY 10, 1961, BY EGLIN AIR FORCE AUXILIARY FIELD NO. 9, FLORIDA, FOR FUELING AND DEFUELING SERVICES COVERING THE PERIOD JULY 1, 1961, THROUGH JUNE 30, 1962.

SEVEN BIDS WERE RECEIVED AND OPENED ON JUNE 5, 1961, AND IT APPEARS FROM THE BID ABSTRACT THAT WATSON SUBMITTED THE LOWEST RESPONSIVE BID IN THE ESTIMATED AMOUNT OF $71,304.84 AND THAT YOU SUBMITTED THE NEXT LOWEST RESPONSIVE BID IN THE ESTIMATED AMOUNT OF $76,416.96.

YOU CONTEND THAT WATSON IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE PURVIEW OF SECTION 1-903.1 (C), ASPR, SINCE THAT BIDDER WAS NOT IN A POSITION TO COMPLY WITH THE REQUIRED DELIVERY SCHEDULE, TAKING INTO CONSIDERATION ALL EXISTING BUSINESS COMMITMENTS, COMMERCIAL AS WELL AS GOVERNMENTAL. IN THAT CONNECTION, YOU POINT OUT THAT EQUIPMENT PROPOSED TO BE USED BY WATSON WOULD NOT BE AVAILABLE BECAUSE OF HIS CONTRACT COMMITMENTS FOR SIMILAR SERVICES AT SCOTT AIR FORCE BASE, ILLINOIS. HENCE, YOU CONCLUDE THAT ON JUNE 5, 1961, WATSON DID NOT HAVE AVAILABLE EQUIPMENT TO MEET THE ADVERTISED REQUIREMENTS FOR SERVICES TO BE PERFORMED AT EGLIN AIR FORCE AUXILIARY FIELD NO. 9.

WE HAVE BEEN INFORMED BY THE DEPARTMENT THAT UNDER THE CONTRACT AT SCOTT AFB WATSON WAS REQUIRED TO FURNISH SUFFICIENT EQUIPMENT TO PERFORM THE CONTRACT SATISFACTORILY. THAT CONTRACT DID NOT CALL FOR A SPECIFIC NUMBER OF REFUELING UNITS. IN THE PROCESS OF INVESTIGATING THE ABILITY OF WATSON TO MEET THE TERMS OF ANY AWARD RESULTING FROM THE INSTANT INVITATION, AIR FORCE PERSONNEL FOUND THAT ALL OF THE EQUIPMENT THIS CONTRACTOR HAD AT SCOTT AFB WAS NOT BEING UTILIZED AND THAT WATSON HAS NEVER NEEDED ALL THE UNITS OF EQUIPMENT LOCATED AT SCOTT AFB TO PERFORM THAT CONTRACT. THE CONTRACTING OFFICER HAVING JURISDICTION OVER THE CONTRACT AT SCOTT AFB GAVE WATSON PERMISSION TO WITHDRAW A PART OF THIS EQUIPMENT AS THAT PORTION WAS IN EXCESS OF THAT REQUIRED FOR PERFORMANCE OF THE CONTRACT AT SCOTT AFB. AFTER AN INSPECTION OF THIS EXCESS EQUIPMENT, AND EVALUATION OF THE OTHER FACTORS INVOLVED IN DETERMINING THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS, THE CONTRACTING OFFICER DETERMINED THAT WATSON HAD THE NECESSARY EQUIPMENT TO MEET THE INVITATION REQUIREMENTS AND ALSO POSSESSED ALL THE NECESSARY QUALIFICATIONS TO SATISFACTORILY PERFORM THE PROPOSED CONTRACT. UNDER THOSE CIRCUMSTANCES, IT WAS THE OPINION OF THE CONTRACTING OFFICER THAT WATSON WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR. THEREFORE, AWARD WAS MADE TO WATSON AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER UNDER THE INVITATION ON JUNE 28, 1961.

THIS OFFICE, AS WELL AS THE COURTS, HAS CONSISTENTLY HELD THAT THE QUESTION AS TO A BIDDER'S RESPONSIBILITY IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER. 33 COMP. GEN. 549; 38 ID. 131; NIKLAUS V. MILLER, 66 N.W.2D 824; KNISKA V. SPLAIN, 110 N.Y.S.2D 267; BROWN V. PHOENIX, 272 P.2D 358; MCNICHOLS V. DENVER, 274 P.2D 317. THE RECORD HERE ESTABLISHES THAT THE NECESSARY DETERMINATION REQUIRED BY REGULATION AS TO THE RESPONSIBILITY OF WATSON WAS MADE BY THE CONTRACTING OFFICER AND, IN THE ABSENCE OF EVIDENCE OF CAPRICIOUS OR ARBITRARY ACTION, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION THAT THE SUCCESSFUL BIDDER WAS CAPABLE OF PERFORMING THE RESULTING CONTRACT.

THE AIR FORCE TECHNICIANS HAVE REVIEWED YOUR ALLEGATION THAT THE EQUIPMENT PROPOSED TO BE USED BY WATSON WAS DEFICIENT IN THAT IT DID NOT CONFORM ENTIRELY TO THE INVITATION REQUIREMENTS. THE RECORD BEFORE US SHOWS THAT THE DISCREPANCIES LISTED IN YOUR LETTER OF JULY 2, 1961, WERE MINOR AND WOULD NOT AFFECT THE EFFICIENCY, EFFECTIVENESS, QUALITY, OR RELIABILITY OF FUEL DELIVERY. WE ARE FURTHER ADVISED THAT THE DEFICIENCIES REPORTED BY YOU HAVE BEEN CORRECTED BY WATSON TO THE SATISFACTION OF THE AIR FORCE. IN VIEW THEREOF, WE SEE NO BASIS TO QUESTION THE TECHNICAL CAPABILITIES OF THE EQUIPMENT TO BE USED BY WATSON.