B-146489, NOV. 8, 1961

B-146489: Nov 8, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 20. OF THE INVITATION AT THE UNIT PRICES SET FORTH IN YOUR BID WHICH APPEARS TO HAVE TOTALED A GROSS AMOUNT OF $23. WHICH WAS RENDERED BY DEPARTMENT OF THE AIR FORCE PERSONNEL. THE LOW NET BID SUBMITTED BY YOU FOR GROUP "B" WAS NOT ACCEPTED BUT RATHER AN AWARD OF CONTRACT FOR THE GROUP WAS MADE TO THE NEXT LOW BIDDER. YOU SET FORTH IN DETAIL REASONS TO SUPPORT YOUR CONTENTION THAT THE FACILITY CAPABILITY REPORT OBVIOUSLY MUST HAVE BEEN BIASED AND IN ERROR. REGARDING AVAILABLE FACILITIES YOU POINT OUT THAT THE WORK UNDER THIS INVITATION WAS INTENDED TO BE PERFORMED WITH THE SAME FACILITIES USED BY YOU IN PERFORMING SATISFACTORY SERVICES DURING THE PAST 19 MONTHS FOR THE SAME TYPE OF WORK ON OVER 500 MATERIAL HANDLING VEHICLES.

B-146489, NOV. 8, 1961

TO SEABA MANUFACTURING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 20, 1961, WITH ENCLOSURE, PROTESTING THE ACTION TAKEN BY THE TINKER AIR FORCE BASE IN AWARDING CONTRACT NO. AF 34/601/-9725.

IN RESPONSE TO INVITATION NO. 34-601-61-438 PPS, ISSUED ON MAY 29, 1961, BY THE BASE PROCUREMENT DIVISION, OKLAHOMA CITY AIR MATERIEL AREA, TINKER AIR FORCE BASE, YOU SUBMITTED A BID OFFERING TO FURNISH THE NECESSARY PLANT FACILITIES, LABOR, EQUIPMENT, MATERIALS, ETC.,FOR THE REPAIR, RECONDITION OR OVERHAUL OF CERTAIN GOVERNMENT-OWNED COMMERCIAL TYPE VEHICLES AS COVERED BY GROUP "B," ITEMS NOS. 12 THROUGH 22, OF THE INVITATION AT THE UNIT PRICES SET FORTH IN YOUR BID WHICH APPEARS TO HAVE TOTALED A GROSS AMOUNT OF $23,872.50--- $23,812.82 NET--- FOR THE GROUP. AS THE RESULT OF A NEGATIVE FACILITY CAPABILITY REPORT, WHICH WAS RENDERED BY DEPARTMENT OF THE AIR FORCE PERSONNEL, THE LOW NET BID SUBMITTED BY YOU FOR GROUP "B" WAS NOT ACCEPTED BUT RATHER AN AWARD OF CONTRACT FOR THE GROUP WAS MADE TO THE NEXT LOW BIDDER, FRED JONES INC., OKLAHOMA CITY, OKLAHOMA, IN THE NET AMOUNT OF $23,841.50. THIS ACTION HAS PROMPTED YOUR PROTEST.

IN YOUR LETTER DATED JULY 10, 1961, ADDRESSED TO THE GOVERNMENT CONTRACTING OFFICER, TINKER AIR FORCE BASE, YOU SET FORTH IN DETAIL REASONS TO SUPPORT YOUR CONTENTION THAT THE FACILITY CAPABILITY REPORT OBVIOUSLY MUST HAVE BEEN BIASED AND IN ERROR. REGARDING AVAILABLE FACILITIES YOU POINT OUT THAT THE WORK UNDER THIS INVITATION WAS INTENDED TO BE PERFORMED WITH THE SAME FACILITIES USED BY YOU IN PERFORMING SATISFACTORY SERVICES DURING THE PAST 19 MONTHS FOR THE SAME TYPE OF WORK ON OVER 500 MATERIAL HANDLING VEHICLES--- FORK LIFTS -- FOR THE TINKER AIR FORCE BASE UNDER CONTRACT NO. AF 34/601/7094. YOU STATE THAT ALL OF THE FACILITIES AND EQUIPMENT CALLED FOR UNDER INVITATION NO. 34-601-61-438 PPS ARE ON HAND AND IN AN OPERATING CONDITION EXCEPT A FLOOR LIFT WHICH IT IS POSSIBLE TO INSTALL IN THREE DAYS, YOU FURTHER STATE THAT AN AWARD WAS MADE TO THE LOW BIDDER FOR GROUP "C" WHO LACKED EXACTLY THE SAME FACILITIES YOUR FIRM DID NOT HAVE. WITH RESPECT TO THE ENGINEERING AND PRODUCTION REQUIREMENTS YOU AGAIN REFER TO CONTRACT NO. AF 34-/601/7094 TO SHOW THAT THE AIR FORCE CONSISTENTLY HAD APPROVED YOUR PRODUCTION UNDER THIS CONTRACT WHICH YOU SUGGEST CONTAINED EVEN HIGHER REQUIREMENTS, AND YOU ALSO REFER TO THIS CONTRACT TO SHOW THAT YOUR PLANT WAS CAPABLE OF MEETING THE DELIVERY SCHEDULE SPECIFIED. YOU ALSO CONTEND THAT NO EMERGENCY EXISTED SO AS TO JUSTIFY AWARD OF GROUP "B" OF THE SUBJECT CONTRACT WITHOUT REFERENCE OF THE MATTER TO THE SMALL BUSINESS ADMINISTRATION WITH A VIEW TOWARD THE ISSUANCE OF A CERTIFICATE OF COMPETENCY IN YOUR BEHALF.

SINCE YOU HAD SUBMITTED THE LOW NET BID FOR THE WORK REQUIRED UNDER GROUP "B" OF INVITATION NO. 34-601-61-438 PPS THE AIR FORCE PROCURING ACTIVITY REQUESTED THE ST. LOUIS AIR PROCUREMENT DISTRICT TO MAKE A SURVEY TO DETERMINE IF YOU COULD MEET THE REQUIREMENTS OF THE INVITATION. THE RESULT OF THE SURVEY, AS REFLECTED IN THE FACILITY CAPABILITY REPORT, SHOWED THAT ON JUNE 20, 1961, THE DAY THE SURVEY WAS CONDUCTED, YOU DID NOT POSSESS SUCH MANPOWER AND FACILITY REQUIREMENTS STIPULATED UNDER PART XX, PAGE 14, OF THE SCHEDULE OF INVITATION NO. 34-601-61-438 PPS AS (A) RADIATOR REPAIR FACILITIES, (B) FRONT END ALIGNMENT EQUIPMENT--- YOU PLANNED TO SUBCONTRACT ALL WORK INVOLVING THESE FACILITIES SINCE THE COST OF THIS EQUIPMENT IS PROHIBITIVE--- (C) PAINTING EQUIPMENT, (D) ENGINE ANALYZER OF SUFFICIENT CAPACITY, AND (E) A FLOOR LIFT. THUS, THE FACILITY CAPABILITY REPORT OF THE ST. LOUIS AIR PROCUREMENT DISTRICT NOT ONLY SHOWED THAT YOU DID NOT HAVE THE MINIMUM EQUIPMENT REQUIRED BY THE INVITATION FOR BIDS BUT ALSO INDICATED THAT YOU HAD NO PLANS FOR OBTAINING SUCH EQUIPMENT. UNDER THESE CIRCUMSTANCES, IT APPEARS THAT THE NEGATIVE DETERMINATION MADE IN THE FACILITY CAPABILITY REPORT AS TO YOUR ABILITY TO COMPLY WITH THE INVITATION REQUIREMENTS AS TO FACILITIES, ENGINEERING AND PRODUCTION, AND DELIVERY, WAS SUPPORTED BY THE SURVEY. SINCE IT WAS DEFINITELY SHOWN THAT YOU DID NOT HAVE SUCH FACILITIES IN YOUR PLANT THERE MAY NOT BE RECONCILED YOUR STATEMENT THAT ALL FACILITIES AND EQUIPMENT CALLED FOR UNDER THE INVITATION WERE ON HAND EXCEPT THE FLOOR LIFT.

THE CONTRACTING OFFICER REPORTS THAT A VALID COMPARISON MAY NOT BE MADE OF YOUR PERFORMANCE UNDER THE MATERIAL HANDLING VEHICLES CONTRACT AND THIS TRANSACTION SINCE, DUE TO THE DIFFERENCE IN THE SCOPE OF THE WORK, MUCH OF THE EQUIPMENT REQUIRED FOR COMMERCIAL VEHICLE REPAIR UNDER CONTRACT NO. AF 34/601/-9725 WOULD NOT BE REQUIRED IN THE REPAIR OF THE FORK LIFTS UNDER THE FORMER CONTRACT. THE CONTRACTING OFFICER CITES AS AN EXAMPLE THAT THE FRONT END ALIGNING EQUIPMENT IS COMMONLY USED ON COMMERCIAL VEHICLES BUT NOT ON MATERIALS HANDLING EQUIPMENT.

WITH RESPECT TO YOUR OBJECTION TO THE MATTER NOT HAVING BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION, THE REQUIRING ACTIVITY OF THE AIR FORCE HERE CONCERNED HAS THE RESPONSIBILITY OF MAINTAINING AND OVERHAULING B-52 AND KC-135 AIRCRAFT. BOTH TYPES ARE FIRST LINE AIRCRAFT OF THE STRATEGIC AIR COMMAND AND ARE ABSOLUTELY ESSENTIAL TO ACCOMPLISH THAT COMMAND'S MISSION. THE SERVICES REQUIRED UNDER GROUP "B" OF THE SUBJECT INVITATION ARE FOR THE REPAIR, OVERHAUL AND MODIFICATION OF OVER 150 VEHICLES THAT MUST BE IMMEDIATELY AVAILABLE AND KEPT IN RUNNING ORDER TO SUPPORT THE MAINTENANCE AND OVERHAUL PROGRAM FOR THESE AIRCRAFT. MOREOVER, THE PRIOR CONTRACT FOR THESE SERVICES EXPIRED JUNE 30, 1961, AND AN EXERCISE OF THE 6 MONTHS RENEWAL OPTION--- NOT A 3 MONTHS OPTION AS STATED IN YOUR LETTER OF JULY 10, 1961--- WAS NOT CONSIDERED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT SINCE IT WOULD HAVE OCCASIONED ADDITIONAL COSTS BECAUSE THE EXPIRING CONTRACT PRICES WERE HIGHER THAN THE LOW BID RECEIVED UNDER INVITATION NO. 34-601-61-438 PPS. THUS, THERE APPEARS TO BE A REASONABLE BASIS FOR THE CONCLUSION THAT AN EMERGENCY EXISTED FOR THE SERVICES COVERED BY GROUP "B" OF THE INVITATION AND, UNDER THE CIRCUMSTANCES REPORTED, THAT THE DEPARTMENT OF THE AIR FORCE WAS JUSTIFIED IN MAKING THE AWARD WITHOUT REFERRING THE MATTER TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION OF A CERTIFICATE OF COMPETENCY AS PROVIDED BY ARMED SERVICES PROCUREMENT REGULATION 1 705.6 (B) (A).

REGARDING THE QUESTION RAISED BY YOU AS TO THE PROPRIETY OF AWARDING THE SERVICES REQUIRED UNDER GROUP "C" TO THE LOW BIDDER, IT APPEARS THAT WHILE THE LOW BIDDER DID NOT HAVE ALL OF THE EQUIPMENT SPECIFIED, IT DID HAVE MORE OF THE REQUIRED EQUIPMENT THAN ANY OF THE OTHER BIDDERS QUOTING ON GROUP "C," INCLUDING YOUR COMPANY. MOREOVER, THE LOW BIDDER GAVE ASSURANCE TO THE AIR FORCE THAT IT WOULD OBTAIN ALL EQUIPMENT REQUIRED.

IN VIEW OF THE FOREGOING, AND SINCE 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--- IN THIS INSTANCE, THE DEPARTMENT OF THE AIR FORCE--- WHICH 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, WE MUST CONCLUDE THAT THE AWARD ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE IN THE MATTER IS NOT SUBJECT TO LEGAL OBJECTION. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 6; 20 COMP. GEN. 862; 37 ID. 430, 435.