B-146526, SEP. 1, 1961

B-146526: Sep 1, 1961

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TO MAXWELL ELECTRONICS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 25. THE NEXT LOW BID WAS SUBMITTED BY NORTHEASTERN ENGINEERING. AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE MEANING OF 1-902 AND 1 903. PREAWARD FACILITY CAPABILITY SURVEY WAS REQUESTED OF THE DALLAS AIR PROCUREMENT DISTRICT. PRODUCTION AND ENGINEERING CAPABILITIES AND QUALITY CONTROL PROCEDURE AND ON THE BELIEF THAT YOU WERE NOT CAPABLE OF MEETING THE REQUIRED DELIVERY SCHEDULE SINCE MATERIALS NECESSARY FOR PERFORMANCE OF THE CONTRACT APPARENTLY WERE NOT READILY AVAILABLE TO YOU. AWARD WAS MADE TO THE SECOND LOW BIDDER. IT IS WELL ESTABLISHED. THAT AN ADMINISTRATIVE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS CONCLUSIVE UNLESS IT IS SHOWN THAT SUCH DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE DEMONSTRATING THE BIDDER'S LACK OF RESPONSIBILITY.

B-146526, SEP. 1, 1961

TO MAXWELL ELECTRONICS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1961, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID UNDER IFB-33-604-61 313 ISSUED BY THE DAYTON AIR FORCE DEPOT, GENTILE AIR FORCE STATION, DAYTON, OHIO, ON APRIL 19, 1961.

THE INVITATION AS AMENDED REQUESTED BIDS--- TO BE OPENED JUNE 5, 1961--- FOR FURNISHING AN INDEFINITE QUANTITY OF ELECTRONIC COUNTERS. YOU SUBMITTED THE LOW BID AT THE WEIGHTED AVERAGE PRICE OF $1,363.65 PER UNIT, INCLUDING A PROMPT PAYMENT DISCOUNT OF 10 PERCENT FOR PAYMENT WITHIN 10 CALENDAR DAYS. THE NEXT LOW BID WAS SUBMITTED BY NORTHEASTERN ENGINEERING, INC., AT THE WEIGHTED AVERAGE PRICE OF $1,479.17 PER UNIT.

ARMED SERVICES PROCUREMENT REGULATION 1-904.1 REQUIRES THAT NO PURCHASE SHALL BE MADE FROM, AND NO CONTRACT SHALL BE AWARDED TO, ANY PERSON OR FIRM UNLESS THE CONTRACTING OFFICER FIRST MAKES, SIGNS AND PLACES IN THE CONTRACT FILE, AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE MEANING OF 1-902 AND 1 903. PREAWARD FACILITY CAPABILITY SURVEY WAS REQUESTED OF THE DALLAS AIR PROCUREMENT DISTRICT, WHICH SURVEY RESULTED IN A NEGATIVE REPORT BASED ON FINDINGS THAT YOUR CORPORATION DID NOT POSSESS THE REQUIRED FACILITIES, PRODUCTION AND ENGINEERING CAPABILITIES AND QUALITY CONTROL PROCEDURE AND ON THE BELIEF THAT YOU WERE NOT CAPABLE OF MEETING THE REQUIRED DELIVERY SCHEDULE SINCE MATERIALS NECESSARY FOR PERFORMANCE OF THE CONTRACT APPARENTLY WERE NOT READILY AVAILABLE TO YOU.

THEREAFTER YOU APPLIED FOR A CERTIFICATE OF COMPETENCY FROM THE SMALL BUSINESS ADMINISTRATION BUT IN A LETTER DATED JULY 12, 1961, TO DAYTON AIR FORCE DEPOT THE REGIONAL DIRECTOR, SMALL BUSINESS ADMINISTRATION,STATED THAT THAT AGENCY DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY TO YOU FOR THE SUBJECT PROCUREMENT, HAVING FOUND NO SUFFICIENT REASON FOR DISAGREEING WITH THE DECISION OF THE PROCURING AGENCY. SUBSEQUENTLY, IN ORDER TO AVOID FURTHER DELAY, AWARD WAS MADE TO THE SECOND LOW BIDDER.

IT IS WELL ESTABLISHED, BOTH BY DECISIONS OF THE COURTS AND OUR OFFICE, THAT AN ADMINISTRATIVE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS CONCLUSIVE UNLESS IT IS SHOWN THAT SUCH DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE DEMONSTRATING THE BIDDER'S LACK OF RESPONSIBILITY. SEE 38 L.R.A. (NS) 653; WILSON V. CITY OF NEW CASTLE, 152 A. 102, 103; SANDERLIN V. LUKEN, 66 S.E. 225, 227; INGE V. BOARD OF PUBLIC WORKS, 33 SO. 678, 681; 36 COMP. GEN. 42; 37 ID. 798, 38 ID. 131. THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT. WHILE SUCH JUDGMENT SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICES INVOLVED SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE BRUNT OF ANY DIFFICULTY EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY AND THEY MUST MAINTAIN THE DAY- TO-DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING OFFICIALS IN ANY CASE IN WHICH THERE APPEARS TO BE A SUBSTANTIAL BASIS FOR THE ACTION OF THOSE OFFICIALS. THE FACTS SHOWN BY THE FILE IN THE INSTANT MATTER INDICATE THAT THERE WAS A SUBSTANTIAL BASIS FOR THE ACTIONS OF THE ADMINISTRATIVE OFFICERS IN REJECTING YOUR BID AND THAT SUCH ACTIONS WERE TAKEN IN GOOD FAITH, AFTER CAREFUL CONSIDERATION, FOR THE PURPOSE OF SERVING THE BEST INTERESTS OF THE GOVERNMENT.

IN VIEW OF THE FOREGOING, THERE IS NO PROPER BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE ADMINISTRATIVE OFFICE IN MAKING AWARD TO ANOTHER BIDDER.