B-146322, SEP. 1, 1961

B-146322: Sep 1, 1961

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 29. PROSPECTIVE BIDDERS WERE ADVISED THAT THE GOVERNMENT DESIRED THAT ALL PRODUCTION CABINETS BE AVAILABLE FOR SHIPMENT WITHIN 100 CALENDAR DAYS AFTER APPROVAL OF THE PREPRODUCTION MODEL. PROSPECTIVE BIDDERS WERE ADVISED UNDER THE HEADING "QUALIFICATIONS" AS FOLLOWS: "EACH BIDDER WILL SUBMIT WITH HIS BID. THAT THE THIRD LOWEST BID WAS SUBMITTED BY STEEL SPECIALTIES. WERE REJECTED BECAUSE EACH OF YOU NOT ONLY FAILED TO FURNISH EVIDENCE OF YOUR ABILITY TO PRODUCE THE EQUIPMENT AS REQUIRED BY THE QUALIFICATIONS PARAGRAPH OF THE INVITATION BUT ALSO CITED A DELIVERY TIME IN EXCESS OF 100 CALENDAR DAYS SPECIFIED IN THE INVITATION.

B-146322, SEP. 1, 1961

TO ALLO, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 29, 1961, TO THE CHIEF, U.S. WEATHER BUREAU, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. WB112-61.

THE INVITATION REQUESTED BIDS FOR FURNISHING VARIOUS QUANTITIES OF INSTRUMENT PANEL CABINETS. PROSPECTIVE BIDDERS WERE ADVISED THAT THE GOVERNMENT DESIRED THAT ALL PRODUCTION CABINETS BE AVAILABLE FOR SHIPMENT WITHIN 100 CALENDAR DAYS AFTER APPROVAL OF THE PREPRODUCTION MODEL. PAGE 3 OF THE INVITATION, PROSPECTIVE BIDDERS WERE ADVISED UNDER THE HEADING "QUALIFICATIONS" AS FOLLOWS:

"EACH BIDDER WILL SUBMIT WITH HIS BID, EVIDENCE OF HIS ABILITY TO MAKE THE ITEM BID UPON. SUCH EVIDENCE MAY BE (1) REFERENCE TO PREVIOUS WEATHER BUREAU OR OTHER GOVERNMENT AGENCY CONTRACTS SUCCESSFULLY COMPLETED, FURNISHING CONTRACT NUMBER, ITEM MANUFACTURED, AND AGENCY REFERENCE OR (2) OTHER EVIDENCE ACCEPTABLE TO THE WEATHER BUREAU. THE GOVERNMENT RESERVES THE RIGHT TO REJECT ALL BIDS WHICH DO NOT INCLUDE THIS INFORMATION.'

THE RECORD INDICATES THAT IN RESPONSE TO THE INVITATION KIRINN AND COMPANY, INC., SUBMITTED THE LOWEST BID; THAT YOUR FIRM SUBMITTED THE NEXT LOWEST BID; AND THAT THE THIRD LOWEST BID WAS SUBMITTED BY STEEL SPECIALTIES, INC. YOUR BID AND THE LOW BID OF KIRINN AND COMPANY, INC., WERE REJECTED BECAUSE EACH OF YOU NOT ONLY FAILED TO FURNISH EVIDENCE OF YOUR ABILITY TO PRODUCE THE EQUIPMENT AS REQUIRED BY THE QUALIFICATIONS PARAGRAPH OF THE INVITATION BUT ALSO CITED A DELIVERY TIME IN EXCESS OF 100 CALENDAR DAYS SPECIFIED IN THE INVITATION. ON JUNE 26, 1961, STEEL SPECIALTIES, INC., WAS AWARDED A CONTRACT FOR FURNISHING THE CABINETS.

YOU CONTEND THAT YOUR FAILURE TO SUBMIT EVIDENCE WITH YOUR BID OF YOUR ABILITY TO PRODUCE THE EQUIPMENT SHOULD HAVE BEEN REGARDED AS A "MINOR IRREGULARITY" AND THAT SUCH IRREGULARITY SHOULD HAVE BEEN WAIVED BY THE WEATHER BUREAU PURSUANT TO THE PROVISIONS OF PARAGRAPH 8 (B) OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS. YOU STATE THAT IN SEPTEMBER 1959, THE WEATHER BUREAU AWARDED YOU CONTRACT NO. W60-1451 WITHOUT REQUIRING YOU TO SUBMIT ANY EVIDENCE OF YOUR ABILITY TO PRODUCE THE EQUIPMENT. IN THAT CONNECTION, IT IS REPORTED THAT THE CIRCUMSTANCES UNDER WHICH THE WEATHER BUREAU ADMINISTRATIVELY DETERMINED TO WAIVE REQUIREMENTS IN YOUR FAVOR WHEN CONTRACT W60-1451 WAS AWARDED DID NOT EXIST DURING THE EVALUATION OF THE BID SUBMITTED IN RESPONSE TO THIS INVITATION. IT WAS ALSO REPORTED THAT THE CIRCUMSTANCES PRESENT IN SEPTEMBER 1959 SUGGESTED GIVING YOUR FIRM AN OPPORTUNITY TO ESTABLISH YOUR CAPABILITIES AS A PRIME CONTRACTOR IN LIEU OF THE POSITION, THEN EVIDENT, AS AN UNSATISFACTORY SUBCONTRACT PARTICIPANT ON A WEATHER BUREAU CONTRACT WITH GENTRY TOOL AND ENGINEERING COMPANY OF BETHESDA, MARYLAND.

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.

SECTION 1-1.310-5 OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES CERTAIN STANDARDS WHICH THE CONTRACTING OFFICER IS TO FOLLOW IN DETERMINING THE RESPONSIBILITY OF A BIDDER. SOME OF THOSE STANDARDS ARE AS FOLLOWS:

"/A) IN ORDER TO QUALIFY AS RESPONSIBLE, A PROSPECTIVE CONTRACTOR MUST, IN THE OPINION OF THE CONTRACTING OFFICER, MEET THE FOLLOWING STANDARDS AS THEY RELATE TO THE PARTICULAR PROCUREMENT UNDER CONSIDERATION:

"/4) IS ABLE TO COMPLY WITH THE PROPOSED OR REQUIRED TIME OF DELIVERY OR PERFORMANCE SCHEDULE;

"/5) HAS A SATISFACTORY RECORD OF INTEGRITY, JUDGMENT, AND PERFORMANCE (CONTRACTORS WHICH ARE SERIOUSLY DELINQUENT IN CURRENT CONTRACT PERFORMANCE, CONSIDERING THE NUMBER OF CONTRACTS AND THE EXTENT OF DELINQUENCIES OF EACH, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR COMPELLING CIRCUMSTANCES, BE PRESUMED TO BE UNABLE TO FULFILL THIS REQUIREMENT); "

IN REGARD TO STANDARD (A) (4), YOU INDICATED IN YOUR BID THAT YOU COULD NOT COMPLY WITH THE DESIRED DELIVERY TIME OF 100 CALENDAR DAYS. AS TO STANDARD (A) (5), SINCE YOU DID NOT SUBMIT WITH YOUR BID EVIDENCE OF YOUR ABILITY TO PRODUCE THE REQUIRED EQUIPMENT, REFERENCE HAD TO BE MADE TO PERFORMANCE UNDER CONTRACTS WITHIN THE KNOWLEDGE OF THE WEATHER BUREAU. IT IS REPORTED THAT YOUR PERFORMANCE UNDER CONTRACT NO. W60-1451 WAS NOT ENTIRELY SATISFACTORY FOR THE REASON THAT ONE OR MORE OF THE OBSERVATION INSTRUMENT CONSOLES DELIVERED BY YOU THEREUNDER WAS INCOMPLETE. ALSO, YOUR PERFORMANCE UNDER A SUBCONTRACT WAS UNSATISFACTORY. SINCE YOU FAILED TO MEET THE FOREGOING STANDARDS, WE FIND NO PROPER BASIS FOR TAKING EXCEPTION TO THE REJECTION OF YOUR BID UNDER THE INVITATION INVOLVED. ANY EVENT, HAD THE WEATHER BUREAU CONSIDERED WAIVING THE SUBMISSION BY BIDDERS WITH THEIR BIDS OF EVIDENCE OF THEIR ABILITY TO PRODUCE THE EQUIPMENT, KIRINN AND COMPANY, INC., THE LOW BIDDER, AND NOT YOUR FIRM, WOULD HAVE BEEN THE SUCCESSFUL BIDDER, SINCE ITS BID WAS ALSO REJECTED BECAUSE OF ITS FAILURE TO SUBMIT THE REQUIRED EVIDENCE WITH ITS BID.

ACCORDINGLY, WE FIND NO BASIS TO OBJECT TO THE AWARD MADE UNDER THIS INVITATION.