B-153642, APR. 30, 1964

B-153642: Apr 30, 1964

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MARCH 2. IN SUPPORT OF YOUR PROTEST YOU ALLEGE THAT CONSOLIDATED DIESEL ELECTRIC CORPORATION IS NOT A RESPONSIBLE CONTRACTOR WITHIN THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) SECTION 1-903.1 IN ESSENCE FOR THE FOLLOWING REASONS: 1. CONSOLIDATED DIESEL ELECTRIC CORPORATION WAS DELINQUENT IN THE PERFORMANCE OF CONTRACT DA-23-204-AMC-2322 (T) FOR THE LARC-5 VEHICLE. THAT THE REQUIREMENTS OF ASPR 1-903.1 (III) HAVE NOT BEEN MET IN THAT CONSOLIDATED DIESEL ELECTRIC CORPORATION DOES NOT "HAVE A SATISFACTORY RECORD FOR PERFORMANCE.' 2. CONSOLIDATED DIESEL ELECTRIC CORPORATION DOES NOT HAVE ADEQUATE FINANCIAL RESOURCES TO MEET THE REQUIREMENTS OF ASPR 1-903.1 (I).

B-153642, APR. 30, 1964

TO BOWEN-MCLAUGHLIN-YORK, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MARCH 2, 1964, AND COPY OF A LETTER DATED MARCH 9, 1964, PROTESTING ANY AWARD OF A CONTRACT BY THE ARMY MATERIEL COMMAND UNDER INVITATION FOR BIDS AMC/A/ 18-035-64-248 FOR FLAME THROWERS, TO ANY COMPANY OTHER THAN YOURS, AS THE LOWEST RESPONSIBLE BIDDER. IN SUPPORT OF YOUR PROTEST YOU ALLEGE THAT CONSOLIDATED DIESEL ELECTRIC CORPORATION IS NOT A RESPONSIBLE CONTRACTOR WITHIN THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) SECTION 1-903.1 IN ESSENCE FOR THE FOLLOWING REASONS:

1. CONSOLIDATED DIESEL ELECTRIC CORPORATION WAS DELINQUENT IN THE PERFORMANCE OF CONTRACT DA-23-204-AMC-2322 (T) FOR THE LARC-5 VEHICLE; THAT THE ENTIRE DELIVERY SCHEDULE OF THIS CONTRACT APPEARS TO BE AT LEAST 90 DAYS IN ARREARS AND, ACCORDINGLY, THAT THE REQUIREMENTS OF ASPR 1-903.1 (III) HAVE NOT BEEN MET IN THAT CONSOLIDATED DIESEL ELECTRIC CORPORATION DOES NOT "HAVE A SATISFACTORY RECORD FOR PERFORMANCE.'

2. CONSOLIDATED DIESEL ELECTRIC CORPORATION DOES NOT HAVE ADEQUATE FINANCIAL RESOURCES TO MEET THE REQUIREMENTS OF ASPR 1-903.1 (I), BASED UPON A DUN AND BRADSTREET REPORT OF LIMITED WORKING CAPITAL.

3. THE CAPACITY OF CONSOLIDATED DIESEL ELECTRIC CORPORATION WILL BE OVERTAXED IF AWARDED THE SUBJECT CONTRACT, THUS FAILING TO MEET THE REQUIREMENTS OF ASPR 1-903.1 (II).

4. THE U.S. ARMY ENGINEERING PROCUREMENT OFFICE, CHICAGO, ON JANUARY 12, 1962, DETERMINED THAT CONSOLIDATED DIESEL ELECTRIC CORPORATION SHOULD NOT BE AWARDED A CONTRACT UNDER IFB ENG-11-194-62-CD 289 ON THE BASIS OF LACK OF RESPONSIBILITY UNDER THE CRITERIA SET FORTH IN ASPR 1-903.1.

ARMED SERVICES PROCUREMENT REGULATION 1-903.1 PROVIDES INSUBPARAGRAPHS (1), (II) AND (III) AS FOLLOWS:

"1-903.1 GENERAL STANDARDS. EXCEPT AS OTHERWISE PROVIDED IN THIS PARAGRAPH 1-903, A PROSPECTIVE CONTRACTOR MUST---

"/I) HAVE ADEQUATE FINANCIAL RESOURCES, OR THE ABILITY TO OBTAIN SUCH RESOURCES AS REQUIRED DURING PERFORMANCE OF THE CONTRACT (SEE DEFENSE CONTRACT FINANCING REGULATIONS, PART 2, APPENDIX E, AND ANY AMENDMENTS THERETO; SEE ALSO 1-903.3 AND 1-905.2; AND FOR SBA CERTIFICATES OF COMPETENCY, 1-705.6);

(II) BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE, TAKING INTO CONSIDERATION ALL EXISTING BUSINESS COMMITMENTS, COMMERCIAL AS WELL AS GOVERNMENTAL (FOR SBA CERTIFICATES OF COMPETENCY, SEE 1-705.6);

(III) HAVE A SATISFACTORY RECORD OF PERFORMANCE (CONTRACTORS WHO ARE SERIOUSLY DELINQUENT IN CURRENT CONTRACT PERFORMANCE, WHEN THE NUMBER OF CONTRACTS AND THE EXTENT OF DELINQUENCIES OF EACH ARE CONSIDERED, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR CIRCUMSTANCES PROPERLY BEYOND THE CONTROL OF THE CONTRACTOR, BE PRESUMED TO BE UNABLE TO FULFILL THIS REQUIREMENT (III); SEE 1-905.2 AND 1-905.4 (D); "

THE ALLEGATIONS OF THE PROTEST HAVE BEEN REVIEWED IN THE LIGHT OF THE EVIDENCE IN THE HANDS OF THE CONTRACTING OFFICER. THE ARMED SERVICES PROCUREMENT REGULATION SECTION 1-904.1, REQUIRES THAT THE CONTRACTING OFFICER, IN EVERY CASE WHERE AN AWARD OF A CONTRACT IS TO BE MADE, MAKE A DOCUMENTED DETERMINATION THAT THE BIDDER TO WHOM HE PROPOSES TO LET THE CONTRACT IS RESPONSIBLE. AS LOW BIDDER ON INVITATION FOR BIDS NO. AMC (A/ -18-035-64-248, THE CAPABILITIES, BOTH TECHNICAL AND FINANCIAL, OF THE CONSOLIDATED DIESEL ELECTRIC CORPORATION AS A PROSPECTIVE CONTRACTOR, WERE THE SUBJECT OF AN EXHAUSTIVE REVIEW, INCLUDING CORRESPONDENCE WITH PERTINENT FINANCIAL INSTITUTIONS AND AN AUDIT CONDUCTED BY THE ARMY AUDIT AGENCY AS PART OF A PREAWARD SURVEY. THESE REVIEWS IN ALL CATEGORIES HAVE BEEN FAVORABLE TO THE PROPOSED CONTRACTOR.

ALTHOUGH THE PREAWARD SURVEY OF THE LOW BIDDER CONDUCTED PRIOR TO RECEIPT OF YOUR PROTEST INDICATED THAT THE LOW BIDDER WAS FULLY RESPONSIBLE IN ACCORDANCE WITH THE STANDARDS SET FORTH IN THE ARMED SERVICES PROCUREMENT REGULATION, YOUR ALLEGATIONS WERE THOROUGHLY INVESTIGATED BY THE ADMINISTRATIVE OFFICE. THE CONTRACTING OFFICER HAS FOUND THAT:

1. CONTRACT DA-23-204-AMC-2322 (T) IS CURRENTLY BEING PROCURED ON SCHEDULE. THE CONTRACTOR WAS GRANTED A 60-DAY EXTENSION OF DELIVERY BASED UPON THE EFFECT OF 45 CHANGE ORDERS AGAINST THE CONTRACT. THE CONTRACTOR WAS GRANTED A 30-DAY EXTENSION BASED UPON TIME LOST DUE TO A STRIKE AT THE CONTRACTOR'S FACILITY.

2. THE PREAWARD SURVEY REPORT BY THE GOVERNMENT COST ANALYST REVEALS THAT CONSOLIDATED DIESEL ELECTRIC CORPORATION IS FINANCIALLY CAPABLE OF PERFORMANCE AGAINST PROPOSED CONTRACT.

3. PREAWARD SURVEY OF THE CONTRACTOR'S FACILITY IN STAMFORD, CONNECTICUT, AND SCHENECTADY, NEW YORK, REVEALS THAT THE CONTRACTOR'S CAPACITY FOR PERFORMANCE AGAINST THE PROPOSED AWARD IS SATISFACTORY.

4. THE PREAWARD SURVEY PERFORMED BY THE UNITED STATES ARMY ENGINEERING PROCUREMENT OFFICE DURING 1962 IS NOT DEEMED TO BE GERMANE TO THE ARMY'S EVALUATION AS THE PROPOSED CONTRACTOR'S PRESENT CAPACITY IS GREATER THAN IT WAS DURING 1962.

THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS THE FUNCTION OF EACH CONTRACTING OFFICER AS HE PASSES UPON THE BIDS RECEIVED FOR AN AWARD TO BE MADE BY HIM. THE REGULATIONS AUTHORIZE THE CONTRACTING OFFICER TO CONSIDER INFORMATION FROM EVERY AND ANY SOURCE THAT HE CONSIDERS PROPER AND NECESSARY IN THE CIRCUMSTANCES. 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 OFFICERS 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 ACTIONS OF THOSE OFFICIALS. IN THIS CONNECTION IT SHOULD BE UNDERSTOOD THAT THE QUESTION OF RESPONSIBILITY IS NOT DECIDED BY A BIDDER'S PAST PERFORMANCE ALONE, BUT THAT OTHER FACTORS, INCLUDING THE BIDDER'S REPUTATION IN ITS DEALINGS WITH THE GOVERNMENT BEFORE ANY AND ALL GOVERNMENT AGENCIES, ARE FOR CONSIDERATION.

ONCE THE CONTRACTING OFFICER MAKES HIS DETERMINATION, IT IS ENTITLED TO GREAT WEIGHT FOR, AS THE COURTS HAVE INDICATED, THE FINAL SELECTION OF A CONTRACTOR, INVOLVES DISCRETION THAT IS NOT ORDINARILY SUBJECT TO REVIEW. O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762. IN FACT, THE COURTS HAVE GONE TO THE EXTENT OF INDICATING THAT CONDUCT OF THE CONTRACTING OFFICER TANTAMOUNT TO FRAUD BE PROVED AS A CONDITION TO REVIEWING THE CONTRACTING OFFICER'S DETERMINATION. IN THIS CONNECTION IT SHOULD BE UNDERSTOOD THAT THIS OFFICE IS NOT REQUIRED TO DETERMINE WHETHER OR NOT A FIRM IS RESPONSIBLE. THIS OFFICE MERELY ASCERTAINS WHETHER THE INFORMATION THAT THE CONTRACTING OFFICER RELIED UPON REASONABLY SUPPORTED THE CONCLUSION HE REACHED.

IT APPEARS THAT THE INFORMATION THE CONTRACTING OFFICER HAS BEFORE HIM IS SUFFICIENT TO SUPPORT THE CONCLUSION THAT HE REACHED IN DETERMINING THAT CONSOLIDATED DIESEL ELECTRIC CORPORATION IS A RESPONSIBLE BIDDER UNDER THE STANDARDS SET FORTH IN THE ARMED SERVICE PROCUREMENT REGULATION FOR THE PRESENT PROCUREMENT.

IN THE CIRCUMSTANCES NO LEGAL BASIS EXISTS FOR DISTURBING THE ADMINISTRATIVE ACTION TO BE TAKEN UNDER THE INVITATION. 37 COMP. GEN. 430, 435.