B-154608, AUG. 26, 1964

B-154608, AUG. 26, 1964

TO INDUSTRIAL ELECTRONIC HARDWARE CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 30 AND LETTER DATED JULY 1, 1964, WITH ENCLOSURE, PROTESTING AGAINST THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN REJECTING YOUR BID AND AWARDING ITEM 1 OF INVITATION NO.

FPNME-Z-65038/ME/-A-6-15-64 TO A HIGHER BIDDER.

THE FEDERAL SUPPLY SERVICE, PROCUREMENT OPERATIONS DIVISION, WASHINGTON, D.C., BY THE REFERRED TO INVITATION REQUESTED BIDS FOR FURNISHING SPECIFIED QUANTITIES OF CDV-742 RADIOLOGICAL DOSIMETERS AND OF LOUDSPEAKER ATTACHMENTS FOR CDV-700 RADIOLOGICAL SURVEY METERS, LISTED AS ITEMS 1 AND 2, RESPECTIVELY. PROSPECTIVE BIDDERS WERE ADVISED IN THE INVITATION THAT A PORTION OF ITEM 1 HAD BEEN SET ASIDE FOR AWARD TO SMALL BUSINESS CONCERNS. THE ABSTRACT OF BIDS SHOWS THAT FOUR BIDS WERE RECEIVED ON ITEM 1 AND THAT YOUR FIRM, A LARGE BUSINESS CONCERN, SUBMITTED THE LOWEST BID ON ITEM 1.

BASED ON THE INFORMATION CONTAINED IN TWO PREAWARD SURVEYS OF YOUR PLANT CONDUCTED BY TECHNICIANS OF THE QUALITY CONTROL DIVISION, FEDERAL SUPPLY SERVICE, AND THE OFFICE OF THE CIVIL DEFENSE, DEPARTMENT OF DEFENSE, THE CONTRACTING OFFICER CONCLUDED THAT HE COULD NOT MAKE AN AFFIRMATIVE DETERMINATION, AS REQUIRED BY SECTION 1-1.310-6 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), THAT YOUR FIRM WAS A RESPONSIBLE BIDDER. THE SURVEYS INDICATED THAT YOUR FIRM DOES NOT HAVE THE NECESSARY PLANT FACILITIES AND TECHNICAL KNOW-HOW FOR PERFORMING THE WORK CONTEMPLATED BY THE INVITATION FOR BIDS. IT IS REPORTED THAT VARIOUS INDIVIDUAL POINTS INDICATING YOUR FIRM'S LACK OF CAPACITY INVOLVED YOUR PROPOSED USE OF POLYSTYRENE AS INSULATING MATERIAL, THE LACK OF AN ADEQUATE WHITE ROOM, CALIBRATION ROOMS, AND ABSENCE OF TESTING EQUIPMENT. IT IS REPORTED THAT YOUR FIRM HAS BEEN DELINQUENT ON CONTRACTS FOR SIMILAR ITEMS IN THE PAST AND THAT YOUR FIRM HAS SO FAR ONLY PRODUCED ELECTRONIC HARDWARE ITEMS OF A CONSIDERABLY LESS COMPLICATED NATURE. BY LETTER DATED JULY 7, 1964, YOU WERE ADVISED THAT YOUR BID ON ITEM 1 WAS BEING REJECTED BECAUSE YOU DID NOT HAVE THE FACILITIES AND KNOW-HOW TO FULFILL THE CONTRACT AND THAT ON JUNE 29, 1964, A CONTRACT FOR FURNISHING THE DOSIMETERS COVERED BY ITEM 1 WAS AWARDED TO THE LANDSVERK ELECTROMETER COMPANY.

IT IS PROVIDED AT 41 U.S.C. 253 (B) THAT ADVERTISED CONTRACTS SHALL BE AWARDED ONLY TO RESPONSIBLE AND RESPONSIVE BIDDERS. CONSISTENT WITH THE STATUTORY LIMITATION, FPR 1-1.310-6 PRECLUDES AWARDS UNLESS THE CONTRACTING OFFICER FIRST MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE UNDER THE CRITERIA SET OUT IN FPR 1- 1.310-5. ONE OF THE CRITERIA, SET OUT IN FPR 1-1.310-5/A//3), IS THAT A PROSPECTIVE CONTRACTOR TO QUALIFY AS RESPONSIBLE MUST HAVE THE NECESSARY EXPERIENCE, ORGANIZATION, TECHNICAL QUALIFICATIONS, SKILLS, AND FACILITIES. THE DETERMINATION OF NONRESPONSIBILITY BY THE CONTRACTING OFFICER IN THIS CASE WAS BASED IN LARGE MEASURE UPON THE INFORMATION OBTAINED DURING THE SURVEYS CONDUCTED BY FEDERAL SUPPLY SERVICE AND DEPARTMENT OF DEFENSE TECHNICIANS. ALSO, THE DETERMINATION WAS BASED, IN PART, UPON YOUR DELINQUENT PERFORMANCE UNDER DEPARTMENT OF NAVY CONTRACT NO. NOBSR 87580. IT IS REPORTED THAT THE UNIT REQUIRED UNDER THE NAVY CONTRACT IS SIMILAR AND INTERCHANGEABLE IN SOME RESPECTS AS TO PARTS TO THE UNIT REQUIRED UNDER THE INVITATION IN QUESTION, THAT YOUR FIRM WAS 18 MONTHS LATE IN SUBMITTING PREPRODUCTION SAMPLES, AND THAT SUCH SAMPLES FAILED TO PASS THE TEST.

ONE OF THE SIGNIFICANT FACTORS IN DETERMINING THE RESPONSIBILITY OF A BIDDER IS HIS APPARENT ABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS SET OUT IN THE INVITATION. SUCH ABILITY IS FOR DETERMINATION PRIMARILY BY THE CONTRACTING AGENCY AND ABSENT A SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS THEREFOR, WE WILL NOT QUESTION THE VALIDITY OF THE DETERMINATION. 37 COMP. GEN. 430, 435. DECIDING A PROSPECTIVE CONTRACTOR'S PROBABLE ABILITY TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH MUST OF NECESSITY BE A MATTER OF JUDGMENT. SUCH JUDGMENT SHOULD OF COURSE BE BASED ON FACT AND REACHED IN GOOD FAITH; HOWEVER, IT IS ONLY PROPER THAT IT BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED WHO SHOULD BE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, WHO MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED IN OBTAINING REQUIRED PERFORMANCE, AND WHO MUST MAINTAIN DAY TO DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF. 39 COMP. GEN. 705, 711. THE DISCRETION INVESTED IN THE CONTRACTING AGENCY IN SUCH MATTERS IS SO BROAD THAT OPPOSITE DETERMINATIONS BY DIFFERENT CONTRACTING OFFICERS WITH RESPECT TO THE RESPONSIBILITY OF THE SAME BIDDER, FOR THE SAME KIND OF PROCUREMENT AND WITH REFERENCE TO THE SAME SET OF FACTS HAVE BOTH BEEN UPHELD. 39 COMP. GEN. 468, 472.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO LEGAL BASIS FOR OBJECTION BY OUR OFFICE TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER. B-151834, SEPTEMBER 5, 1963, 43 COMP. GEN. - . ..END :