B-153905, JUN. 5, 1964

B-153905: Jun 5, 1964

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METZ: REFERENCE IS MADE TO COPY OF YOUR LETTER DATED APRIL 2. PROTESTING THAT HEWLETT-PACKARD COMPANY WAS ALLOWED TO DEVIATE FROM THE SPECIFICATIONS IN CONTRACT N383-85075A WHEN A SIMILAR REQUEST BY YOUR COMPANY PRIOR TO AWARD WAS DENIED. THE RECORD IN THIS CASE SHOWS THAT YOUR COMPANY WAS NOT AWARDED THE CONTRACT BECAUSE THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE THAT THE COMPANY WAS RESPONSIBLE. THIS CONCLUSION WAS BASED UPON THE DETERMINATION THAT THE COMPANY WAS NOT FINANCIALLY CAPABLE OF PERFORMING THE CONTRACT AND WAS UNABLE TO OBTAIN ADEQUATE WORKING CAPITAL WITHIN A REASONABLE TIME. THE QUESTION AS TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR TO PERFORM A GOVERNMENT CONTRACT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY.

B-153905, JUN. 5, 1964

TO MR. GEORGE F. METZ:

REFERENCE IS MADE TO COPY OF YOUR LETTER DATED APRIL 2, 1964, TO THE UNITED STATES NAVY AVIATION SUPPLY OFFICE, WHICH YOU SUPPLIED OUR OFFICE, PROTESTING THAT HEWLETT-PACKARD COMPANY WAS ALLOWED TO DEVIATE FROM THE SPECIFICATIONS IN CONTRACT N383-85075A WHEN A SIMILAR REQUEST BY YOUR COMPANY PRIOR TO AWARD WAS DENIED.

THE RECORD IN THIS CASE SHOWS THAT YOUR COMPANY WAS NOT AWARDED THE CONTRACT BECAUSE THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE THAT THE COMPANY WAS RESPONSIBLE. THIS CONCLUSION WAS BASED UPON THE DETERMINATION THAT THE COMPANY WAS NOT FINANCIALLY CAPABLE OF PERFORMING THE CONTRACT AND WAS UNABLE TO OBTAIN ADEQUATE WORKING CAPITAL WITHIN A REASONABLE TIME.

THE QUESTION AS TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR TO PERFORM A GOVERNMENT CONTRACT IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY. IN THIS CASE, SINCE THE CONTRACTING OFFICER DETERMINED AFTER CONSIDERATION OF THE COMPANY'S RESPONSIBILITY THAT ITS BID MUST BE REJECTED, THE ACTION DOES NOT APPEAR TO HAVE BEEN IMPROPER.

WHILE THE SUCCESSFUL CONTRACTOR WAS ALLOWED TO DEVIATE FROM THE SPECIFICATIONS IN THE CONTRACT , SUCH ACTION WAS THE RESULT OF AN AGREEMENT BETWEEN THE CONTRACTING OFFICER AND THE CONTRACTOR SUBSTANTIALLY REDUCING THE CONTRACT PRICE IN RETURN FOR A CHANGE IN REQUIREMENTS. HOWEVER, IT IS NOT MATERIAL THAT YOUR COMPANY MAY HAVE REQUESTED SIMILAR CHANGES PRIOR TO AWARD WHICH WERE NOT ACCEDED TO, SINCE THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE THAT YOUR COMPANY WAS RESPONSIBLE, WHICH IS A PREREQUISITE TO AWARD, AND YOUR COMPANY THEREFORE WAS NOT ELIGIBLE FOR ANY AWARD IN THE CIRCUMSTANCES.

IN VIEW OF THE FOREGOING, THERE IS NO PROPER BASIS UPON WHICH OUR OFFICE WOULD BE JUSTIFIED IN OBJECTING TO THE ADMINISTRATIVE ACTION THAT WAS TAKEN IN THIS CASE.