B-146273, AUG. 9, 1961

B-146273: Aug 9, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 16. SEVENTEEN BIDS WERE RECEIVED RANGING FROM $1.32 EACH TO $4.15 EACH. THE LOW BID OF $1.32 EACH WAS SUBMITTED BY YOUR FIRM. FOURTH LOWEST BIDS WERE SUBMITTED BY POLARTRON INC. YOUR BID WAS REJECTED AND AWARD WAS MADE ON JUNE 12. THE SECOND LOWEST BID WAS REJECTED BECAUSE THE BIDDER HAD FAILED TO FURNISH CERTAIN INFORMATION AS TO ITS FINANCIAL STATUS AND BECAUSE OF ITS INEXPERIENCE IN THE MANUFACTURING FIELD. THE BID OF THE THIRD LOWEST BIDDER WAS REJECTED BECAUSE OF A QUALIFICATION THEREIN. THE BID OF THE ELECTRONIC CABLE CORPORATION WAS NOT OPENED AT THE TIME OF THE BID OPENING AS IT WAS. THE FACILITY SURVEY CONDUCTED BY NAVAL PERSONNEL WILL DISCLOSE THAT YOU ARE TECHNICALLY CAPABLE OF PERFORMING THE CONTRACT. 4.

B-146273, AUG. 9, 1961

TO BROWN ELECTRONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1961, FORWARDING FOR OUR ATTENTION A COPY OF A LETTER DATED JUNE 15, 1961, ADDRESSED TO THE CONTRACTING OFFICER, NAVAL PROPELLANT PLANT, INDIAN HEAD, MARYLAND,IN WHICH YOU PROTEST THE AWARD OF A CONTRACT TO THE ELECTRONIC CABLE CORPORATION BY THE NAVAL PROPELLANT PLANT PURSUANT TO INVITATION NO. 174- 162-61.

THE INVITATION REQUESTED BIDS FOR FURNISHING 6,200 IGNITER HARNESS ASSEMBLIES. PRIOR TO MAKING AWARD, THE NAVAL PROPELLANT PLANT REDUCED THE QUANTITY FROM 6,200 TO 2,000. SEVENTEEN BIDS WERE RECEIVED RANGING FROM $1.32 EACH TO $4.15 EACH. THE LOW BID OF $1.32 EACH WAS SUBMITTED BY YOUR FIRM. THE SECOND, THIRD, AND FOURTH LOWEST BIDS WERE SUBMITTED BY POLARTRON INC., GENERAL RELAY CORPORATION AND ELECTRONIC CABLE CORPORATION, RESPECTIVELY. UPON A DETERMINATION THAT YOUR FIRM DID NOT POSSESS THE REQUISITE FINANCIAL AND EXPERIENCE CAPABILITIES TO PERFORM THE CONTRACT, YOUR BID WAS REJECTED AND AWARD WAS MADE ON JUNE 12, 1961, TO THE ELECTRONIC CABLE CORPORATION AS THE LOWEST RESPONSIBLE BIDDER. THE SECOND LOWEST BID WAS REJECTED BECAUSE THE BIDDER HAD FAILED TO FURNISH CERTAIN INFORMATION AS TO ITS FINANCIAL STATUS AND BECAUSE OF ITS INEXPERIENCE IN THE MANUFACTURING FIELD. THE BID OF THE THIRD LOWEST BIDDER WAS REJECTED BECAUSE OF A QUALIFICATION THEREIN.

IN SUPPORT OF YOUR PROTEST YOU REFER TO THE FOLLOWING CIRCUMSTANCES:

1. THE DIFFERENCE OF $2,232 BETWEEN YOUR TOTAL BID PRICE AND THE TOTAL BID PRICE OF THE ELECTRONIC CABLE CORPORATION.

2. THE BID OF THE ELECTRONIC CABLE CORPORATION WAS NOT OPENED AT THE TIME OF THE BID OPENING AS IT WAS, YOU LATER LEARNED, DELAYED IN THE MAIL.

3. THE FACILITY SURVEY CONDUCTED BY NAVAL PERSONNEL WILL DISCLOSE THAT YOU ARE TECHNICALLY CAPABLE OF PERFORMING THE CONTRACT.

4. YOU ARE PAYING CASH FOR THE MATERIAL NEEDED TO MANUFACTURE THE REQUIRED EQUIPMENT REGARDLESS OF WHAT THE FINANCIAL STATEMENT OF YOUR FIRM DISCLOSES.

AWARDS AFTER FORMAL ADVERTISING ARE REQUIRED UNDER 10 U.S.C. 2305 (B) TO BE MADE "TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.' A RESPONSIBLE BIDDER IS ONE WHO POSSESSES, AMONG OTHER ATTRIBUTES, THE FINANCIAL CAPABILITY TO PERFORM. SEE OSBORN V. MITTEN, 6 P.2D 902; WILLIS V. HATHAWAY, 117 SO. 89, 94; INGE V. BOARD OF PUBLIC WORKS, 33 SO. 678, 681; 30 COMP. GEN. 235; 26 ID. 676. YOUR FINANCIAL CAPABILITY TO PERFORM WAS THE PRIMARY FACTOR TO BE DETERMINED BY THE CONTRACTING OFFICER. THEREFORE, WHETHER THE AWARD IN THIS INSTANCE COULD PROPERLY HAVE BEEN MADE TO A HIGHER BIDDER DEPENDS UPON WHETHER THE DETERMINATION THAT YOU LACK THE FINANCIAL CAPABILITY TO PERFORM WAS PROPERLY MADE.

THE REPORT RECEIVED FROM THE DEPARTMENT OF THE NAVY STATES THAT THE DETERMINATION AS TO YOUR FINANCIAL INCAPACITY WAS BASED ON THE LATEST AVAILABLE FINANCIAL STATEMENT OF YOUR FIRM DATED MARCH 31, 1961, WHICH DISCLOSED TOTAL CASH ON HAND AMOUNTING TO $18.23. WHILE YOU HAVE STATED IN YOUR LETTER OF JUNE 15, 1961, THAT YOU ARE GOING TO PAY CASH FOR THE MATERIAL REQUIRED FOR MANUFACTURING THE EQUIPMENT, SUCH FACT WAS NOT MADE KNOWN TO THE ADMINISTRATIVE OFFICE PRIOR TO THE TIME IT MADE THE AWARD TO THE ELECTRONIC CABLE CORPORATION. YOUR BALANCE SHEET ALSO DISCLOSED THAT YOUR BUSINESS WAS OPERATED AT A NET LOSS OF $288.71 AND SUGGESTED A HEAVY BURDEN OF CURRENT LIABILITIES COMPARED TO NET AVAILABLE ASSETS. THEREFORE APPEARS THAT THE DETERMINATION THAT YOU LACKED THE FINANCIAL CAPABILITY TO PERFORM IS ADEQUATELY SUPPORTED BY THE RECORD.

IN REGARD TO THE DIFFERENCE BETWEEN YOUR TOTAL BID PRICE AND THE TOTAL BID PRICE OF THE ELECTRONIC CABLE CORPORATION, IT IS REPORTED THAT THIS DIFFERENCE IS NOW $720 RATHER THAN $2,232, AS STATED BY YOU, BECAUSE OF THE REDUCTION IN THE ORIGINAL QUANTITY SPECIFIED.

AS TO THE DELAYED RECEIPT OF THE BID OF THE ELECTRONIC CABLE CORPORATION, IT IS REPORTED THAT AN INVESTIGATION HAS DISCLOSED THAT SUCH BID WAS MAILED IN SUFFICIENT TIME TO REACH THE NAVAL PROPELLANT PLANT IN TIME FOR THE BID OPENING. SINCE THE BID WAS LATE BY REASON OF DELAY IN THE MAILS THROUGH NO FAULT OF THE BIDDER, THE DELAY WAS DETERMINED TO BE EXCUSABLE IN ACCORDANCE WITH THE TERMS OF THE INVITATION.

THE FUNCTION OF DETERMINING WHETHER A PARTICULAR PERSON OR FIRM IS A RESPONSIBLE BIDDER, WITHIN THE INTENT AND MEANING OF THE ADVERTISING STATUTES OF THE UNITED STATES, AND THUS ELIGIBLE TO RECEIVE AN AWARD OF GOVERNMENT CONTRACTS, IS ESSENTIALLY AN ADMINISTRATIVE ONE INVOLVING THE DETERMINATION OF SUCH FACTUAL ISSUES AS THE BIDDER'S REPUTATION FOR PAST PERFORMANCE, HIS OVER-ALL EXPERIENCE IN THE PARTICULAR INDUSTRY INVOLVED, HIS PLANT FACILITIES AND EQUIPMENT, INTEGRITY, FINANCIAL RESPONSIBILITY, AND LIKE CONSIDERATIONS, SUCH AS CAN BE DETERMINED ONLY BY, AND TO THE SATISFACTION OF, THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT ACTIVITY DIRECTLY CONCERNED. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; 14 COMP. GEN. 305; 34 ID. 86.

SINCE THE MATTER OF YOUR RESPONSIBILITY IN THIS INSTANCE WAS THE SUBJECT OF AN INVESTIGATION BY THE DEPARTMENT AND THE DETERMINATION OF NONRESPONSIBILITY APPEARS TO BE SATISFACTORILY SUPPORTED BY THE RECORD, WE FIND NO BASIS TO OBJECT TO THE AWARD MADE UNDER THE INVITATION IN QUESTION.