B-152055, SEP. 11, 1963

B-152055, SEP. 11, 1963

TO THE BADGER COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 15, 1963, PROTESTING AGAINST THE ACTION OF THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, IN AWARDING A CONTRACT TO A BIDDER OTHER THAN YOUR FIRM UNDER INVITATION NO. DSA-7-63-1145.

THE INVITATION REQUESTED BIDS FOR FURNISHING SPECIFIED QUANTITIES OF EXPANSION JOINTS TO BE MANUFACTURED IN ACCORDANCE WITH BUREAU OF SHIPS DRAWING NO. SS381-S4105-67809 ALT 5 PC A3 AND TO BE DELIVERED TO THE SUPPLY CENTERS LISTED UNDER ITEMS 1A, 1B AND 1C. THREE BIDS WERE RECEIVED, THE LOWEST BEING SUBMITTED BY FLEXICRAFT INDUSTRIES.

THE RECORD SHOWS THAT IN RESPONSE TO THE REQUEST OF THE DEFENSE CONSTRUCTION SUPPLY CENTER, THE U.S. ARMY ENGINEERING DISTRICT, CHICAGO, CONDUCTED A PREAWARD SURVEY OF THE PLANT AND FACILITIES OF THE LOW BIDDER. FLEXICRAFT INDUSTRIES. ON THE BASIS OF THIS SURVEY THE CONTRACTING OFFICER DETERMINED ON JUNE 7, 1963, THAT FLEXICRAFT WAS A RESPONSIBLE BIDDER WITHIN THE CRITERIA PRESCRIBED BY ASPR 1-903.1 ON JUNE 12, 1963, THE BUYER AT THE CENTER RECEIVED A TELEPHONE CALL FROM MR. WILLIAMS OF YOUR FIRM WHO ALLEGED THAT FLEXICRAFT DID NOT HAVE THE PRODUCTIVE CAPABILITY OR THE NECESSARY FINANCIAL RESOURCES TO PERFORM THE CONTRACT. IN VIEW OF THIS CONTENTION THE CENTER REQUESTED THE U.S. ARMY ENGINEERING DISTRICT, CHICAGO, TO CONFIRM ITS PREVIOUS PREAWARD SURVEY. BY LETTER DATED JUNE 13, 1963, THE U.S. ARMY ENGINEERING DISTRICT, CHICAGO, REAFFIRMED THAT FLEXICRAFT WAS A RESPONSIBLE CONTRACTOR BASED ON A PHYSICAL EXAMINATION OF THE COMPANY'S PRODUCTION FACILITIES. THE LETTER ALSO INDICATED THAT THE FINANCIAL STABILITY OF FLEXICRAFT WAS VERY GOOD. ON JUNE 14, 1963, CONTRACT NO. DSA-7-03116 WAS AWARDED TO FLEXICRAFT AND IT IS REPORTED THAT THE COMPANY IS PROCEEDING WITH THE PERFORMANCE OF THE CONTRACT IN A SATISFACTORY MANNER.

IN A LETTER DATED JULY 15, 1963, TO OUR OFFICE, YOU PROTESTED THE AWARD OF THE CONTRACT TO FLEXICRAFT PRIMARILY ON THE GROUNDS OF ITS FINANCIAL INSTABILITY, INADEQUATE MANUFACTURING FACILITIES AND LACK OF TECHNICAL PROFICIENCY. YOU STATED THAT IN A LETTER DATED JULY 2, 1963, THE CONTRACTING OFFICER ADVISED YOU THAT A CAREFUL PREAWARD EVALUATION AND CHECK DEFINITELY ESTABLISHED THE FACT THAT FLEXICRAFT IS A RESPONSIBLE BIDDER AND CAPABLE OF PERFORMING THE CONTRACT. YOU STATE THAT THE INFORMATION RECEIVED FROM THE CONTRACTING OFFICER IS IN DIRECT CONFLICT WITH INFORMATION RECENTLY OBTAINED BY YOUR FIRM; HOWEVER, YOU DO NOT INDICATE IN WHAT MANNER SUCH INFORMATION IS IN CONFLICT WITH THE INFORMATION RECEIVED BY YOUR FIRM.

THE MATTERS RAISED IN YOUR PROTEST RELATE TO THE RESPONSIBILITY OF FLEXICRAFT; THAT IS, ITS ABILITY TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. THE CONTRACT FILE FURNISHED US BY THE DEFENSE SUPPLY AGENCY INDICATES THAT A FACILITY CAPABILITY REPORT TEAM FROM THE U.S. ARMY ENGINEERING DISTRICT, CHICAGO, MADE UP OF EXPERIENCED AND QUALIFIED PERSONNEL, SURVEYED THE FACILITIES AND CAPABILITIES OF FLEXICRAFT AND, AFTER DUE INVESTIGATION AND CONSIDERATION, CONCLUDED THAT THE COMPANY IS A RESPONSIBLE BIDDER AND THAT IT HAS THE AVAILABLE PRODUCTIVE CAPABILITIES TO PRODUCE THE ITEM CALLED FOR IN THE INVITATION WITHIN THE TIME SPECIFIED. BECAUSE OF YOUR PROTEST TO THE CONTRACTING OFFICER, THE CAPABILITIES AND PLANT FACILITIES OF FLEXICRAFT WERE AGAIN INVESTIGATED BY THE U.S. ARMY ENGINEERING DISTRICT, CHICAGO, AND THE ORIGINAL CONCLUSION THAT FLEXICRAFT WAS FULLY QUALIFIED WAS AFFIRMED. THE RECORD ALSO DISCLOSES THAT THE U.S. ARMY ENGINEERING DISTRICT, CHICAGO, CONTACTED THE DEPARTMENT OF THE AIR FORCE IN REGARD TO THE PERFORMANCE OF FLEXICRAFT UNDER A CONTRACT COVERING THE MANUFACTURE OF A SIMILAR ITEM. THE DEPARTMENT REPORTED THAT FLEXICRAFT'S PERFORMANCE UNDER THE CONTRACT WAS SATISFACTORY AND THAT IT CONSIDERED FLEXICRAFT A RESPONSIBLE BIDDER.

IN REGARD TO THE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, THE AUTHORITIES ARE IN AGREEMENT THAT THE OFFICERS IN WHOM THE POWER IS VESTED TO DETERMINE ,RESPONSIBILITY" MUST DETERMINE THE FACTS AND SUCH DETERMINATION CANNOT BE SET ASIDE UNLESS THE ACTION WAS ARBITRARY, CAPRICIOUS OR FRAUDULENT. DETERMINATION OF THE LOWEST RESPONSIBLE BIDDER IS TO BE MADE BY THE AUTHORIZED OFFICIAL OF THE CONTRACTING AGENCY WHO IS REQUIRED TO ACT FAIRLY UPON REASONABLE INFORMATION WHICH SUPPORTS THE DETERMINATION MADE. WHEN SUCH OFFICIAL DETERMINES THE RESPONSIBILITY OF A BIDDER, SUCH DETERMINATION CANNOT BE OVERTHROWN BY THE COURTS OR OUR OFFICE UNLESS IT CAN BE HELD THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS OR FRAUDULENT. SEE MCQUILLIN, MUNICIPAL CORPORATIONS, 3RD EDITION, VOLUME 10, SECTION 29.73 AND THE CASES THERE ITED; 38 COMP. GEN. 131; 33 ID. 549; BROWN V. PHOENIX, 272 P.2D 358; MCNICHOLS V. DENVER, 274 P.2D 317.

SINCE FLEXICRAFT INDUSTRIES HAS BEEN FOUND TO POSSESS THE PHYSICAL AND FINANCIAL RESOURCES NECESSARY FOR THE PERFORMANCE OF THE CONTRACT, AND YOU HAVE FURNISHED NO EVIDENCE TO REFUTE THIS DETERMINATION, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN BY THE ADMINISTRATIVE ..END :