B-155600, FEB. 25, 1965

B-155600: Feb 25, 1965

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TO BLOCKSOM AND COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 17. WE ALSO HAVE YOUR LETTER OF FEBRUARY 8. THE RECORD SHOWS THAT THE CITED INVITATION WAS ISSUED ON JULY 21. GS-00S-52731 WAS MADE BY THE GENERAL SERVICES ADMINISTRATION TO AMERICAN EQUIPMENT COMPANY UNDER THE SUBJECT INVITATION ON NOVEMBER 17. IN YOUR PROTEST YOU CONTEND THAT AMERICAN EQUIPMENT COMPANY IS A NONRESPONSIVE BIDDER. AMERICAN EQUIPMENT COMPANY SPECIFIED THAT THEIR SOURCE OF SUPPLY WAS THE CARBORUNDUM COMPANY. YOU SAY THAT PRESUMABLY THIS WAS BECAUSE AMERICAN EQUIPMENT COMPANY'S SOURCE OF SUPPLY DID NOT THEN NOR HAS NOT SINCE. STATING THAT ITS BID WAS SUBMITTED IN ERROR AS A RESULT OF A MISUNDERSTANDING.

B-155600, FEB. 25, 1965

TO BLOCKSOM AND COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 17, 1964, AND YOUR LETTERS OF NOVEMBER 30 AND DECEMBER 28, 1964, PROTESTING AWARD OF CONTRACT MADE TO AMERICAN EQUIPMENT COMPANY, UNDER INVITATION NO. FPNME-E-55178-A-8-12-64, ISSUED BY THE GENERAL SERVICES ADMINISTRATION. WE ALSO HAVE YOUR LETTER OF FEBRUARY 8, 1965, IN THIS MATTER.

THE RECORD SHOWS THAT THE CITED INVITATION WAS ISSUED ON JULY 21, 1964, AND CALLED FOR AN INDEFINITE QUANTITY TERM CONTRACT ON FSC CLASS 7910 PADS, FLOOR, THICK, POLISHING, BUFFING AND SCRUBBING: TYPE IV CURLED HAIR "REVERSIBLE.' AWARD OF CONTRACT NO. GS-00S-52731 WAS MADE BY THE GENERAL SERVICES ADMINISTRATION TO AMERICAN EQUIPMENT COMPANY UNDER THE SUBJECT INVITATION ON NOVEMBER 17, 1964.

IN YOUR PROTEST YOU CONTEND THAT AMERICAN EQUIPMENT COMPANY IS A NONRESPONSIVE BIDDER, AND YOU ALSO QUESTION THE RESPONSIBILITY OF THAT COMPANY AS A CONTRACTOR. TO THIS END, YOU STATE THAT ON A PREVIOUS INVITATION INVOLVING CURLED HAIR FLOOR PADS, AMERICAN EQUIPMENT COMPANY SPECIFIED THAT THEIR SOURCE OF SUPPLY WAS THE CARBORUNDUM COMPANY, NIAGARA FALLS, NEW YORK, AND AT THAT TIME THEY DID NOT SUBMIT A QUOTATION ON CLASS I, TYPE IV, THICK FLOOR PADS, CURLED HAIR, TO COMPLY WITH THE APPLICABLE FEDERAL SPECIFICATIONS. YOU SAY THAT PRESUMABLY THIS WAS BECAUSE AMERICAN EQUIPMENT COMPANY'S SOURCE OF SUPPLY DID NOT THEN NOR HAS NOT SINCE, MANUFACTURED A PRODUCT WHICH WOULD MEET THE SPECIFICATIONS. THEREAFTER, BECAUSE OF DELIVERY DIFFICULTIES, YOU SAY THAT AMERICAN EQUIPMENT COMPANY ASKED TO BE RELIEVED OF RESPONSIBILITY UNDER THE CONTRACT, STATING THAT ITS BID WAS SUBMITTED IN ERROR AS A RESULT OF A MISUNDERSTANDING. YOU APPLY THE FOREGOING AS A BASIS FOR QUESTIONING THE RESPONSIBILITY OF AMERICAN EQUIPMENT COMPANY AS A CONTRACTOR UNDER THE PRESENT INVITATION, AND YOU CITE SEVERAL DECISIONS OF OUR OFFICE AS HAVING APPLICATION TO THE ISSUE OF THE RESPONSIVENESS OF AMERICAN EQUIPMENT COMPANY'S BID ON THE PRESENT PROCUREMENT.

THE REPORT FROM THE GENERAL SERVICES ADMINISTRATION SETS FORTH THE FOLLOWING IN RESPONSE TO THE POINTS RAISED IN YOUR PROTEST:

"WE BELIEVE AMERICAN EQUIPMENT IS A RESPONSIBLE BIDDER UNDER THE INVITATION, AND THAT ITS BID WAS FULLY RESPONSIVE. HENCE, WE FEEL THAT THE AWARD OF CONTRACT GS-OOS-52731 MADE TO THAT FIRM ON NOVEMBER 17, 1964, WAS PROPER, SINCE THE DATA NOT COMPLETELY FURNISHED WITH THE BID WENT TO RESPONSIBILITY RATHER THAN RESPONSIVENESS. 39 COMP. GEN. 881. WE THINK THE ENCLOSED MATERIAL INDICATES THE PROPRIETY OF THE ACTION TAKEN. SO FAR AS THE SPECIFIC POINTS RAISED IN THE BLOCKSOM TELEGRAM ARE CONCERNED, IT SHOULD BE NOTED THAT AMERICAN EQUIPMENT DESIGNATED, ON PAGE 5 OF ITS BID, NIAGARA FALLS AS ITS PRODUCTION POINT, AND ON PAGE 6 THE CARBORUNDUM COMPANY OF NIAGARA FALLS AS ITS ORIGIN AND INSPECTION POINT. THE BID DID NOT STATE THAT THE CARBORUNDUM COMPANY WAS THE MANUFACTURER, ALTHOUGH THE COMPANY SO DESIGNATED USUALLY IS THE MANUFACTURER.

"IT IS ALSO TRUE, AS STATED BY BLOCKSOM, THAT AMERICAN EQUIPMENT IN THE PAST HAS NOT ALWAYS FURNISHED REQUIRED MATERIALS IN A TIMELY FASHION. FACT, CONTRACT GS-OOS-49438 WITH THAT COMPANY WAS SUFFICIENTLY DELINQUENT SO THAT ON SEPTEMBER 24, 1964, A TEN-DAY NOTICE OF INTENT TO TERMINATE WAS GIVEN THE COMPANY. SUBSEQUENTLY, DELIVERIES WERE REINSTATED UNDER THAT CONTRACT AND TERMINATION WAS FOUND NOT TO BE NECESSARY.

"WHILE DIFFICULTIES WERE BEING ENCOUNTERED UNDER THE OLDER CONTRACT, THE BUYING BRANCH AND QUALITY CONTROL REPRESENTATIVES CONTINUED TO INQUIRE INTO THE POSSIBLE MEANS OF PRODUCTION UNDER A POSSIBLE NEW CONTRACT. WAS FOUND THAT CARBORUNDUM WAS NOT A MANUFACTURER OF THE FLOOR PADS, BUT THAT ARMOUR COATED PRODUCTS AND ADHESIVES COMPANY OF ALLIANCE, OHIO, IS A MANUFACTURER OF SUCH MATERIAL AND WOULD FURNISH THE BASIC SUPPLIES FOR THE CONTRACT. OUR INSPECTION REVEALED ARMOUR TO BE A SATISFACTORY SUPPLIER, CAPABLE OF PRODUCING TO OUR SPECIFICATIONS. IT IS ENTIRELY POSSIBLE THAT AMERICAN EQUIPMENT HAD NO KIND OF A FIRM ARRANGEMENT, DIRECTLY OR INDIRECTLY, FOR THE MANUFACTURE OF THE ITEM, AND OF COURSE THIS IS AN UNDESIRABLE CIRCUMSTANCE, INASMUCH AS BID SHOPPING CAN OCCUR IN SUCH SITUATIONS, ALTHOUGH WE DO NOT FEEL IT HAPPENED IN THIS INSTANCE.

"NEVERTHELESS, BASED ON THE VARIOUS QUALITY CONTROL PLANT FACILITIES REPORT FURNISHED, WE BELIEVE THE DECISION OF THE CONTRACTING OFFICER WAS CORRECT IN HOLDING AMERICAN EQUIPMENT WOULD BE A RESPONSIBLE BIDDER. DIFFICULTY EXISTED AS TO THE FIRM'S FINANCIAL RESPONSIBILITY.

"AS WILL BE SEEN FROM THE ENCLOSURES, SOMEWHAT CONFLICTING REPORTS WERE RECEIVED FROM DIFFERENT GENERAL SERVICES ADMINISTRATION REGIONS AS TO THE CAPABILITIES OF AMERICAN EQUIPMENT. HOWEVER, IN VIEW OF THE ARRANGEMENTS ULTIMATELY WORKED OUT BETWEEN THE COMPANY AND THE CONTRACTING OFFICER, WE BELIEVE THE AWARD WAS PROPERLY MADE TO A RESPONSIBLE SUPPLIER.'

IN REVIEWING THE DECISIONS OF OUR OFFICE CITED BY YOU, WE FIND NONE CONTROLLING THE PRESENT SITUATION OR REQUIRING THE REJECTION OF AMERICAN EQUIPMENT COMPANY'S BID. YOU HAVE STRESSED THE PRINCIPLE APPEARING IN OUR DECISION OF AUGUST 10, 1961, B-146539, 41 COMP. GEN. 106, THAT AN UNFAIR ADVANTAGE HAS BEEN GIVEN TO AMERICAN EQUIPMENT COMPANY IN THE CONSIDERATION OF ITS BID, THAT IS TO SAY, SUCH COMPANY HAS BEEN GIVEN "TWO BITES AT THE APPLE.' YOU APPARENTLY CONTEND THAT AMERICAN EQUIPMENT COMPANY COULD AVOID AWARD BY REFUSING TO FURNISH INFORMATION AS TO SUPPLIERS AFTER BID OPENING IF, AT THE TIME, SUCH ACTION APPEARED TO ITS ADVANTAGE, IN THE LIGHT OF THE OTHER BIDS AND RELATED INFORMATION NOT AVAILABLE WHEN ITS BID WAS SUBMITTED. AMERICAN EQUIPMENT COMPANY WOULD RECEIVE NO SUCH OPTION HERE, SINCE IT IS REQUIRED TO PERFORM THE CONTRACT IN ACCORDANCE WITH THE SPECIFICATIONS, NOTWITHSTANDING WHO THE SUPPLIER MIGHT BE. THE POSSIBILITY OF AN OPTION NORMALLY ARISES IN THOSE INSTANCES WHERE THE BIDDER DOES NOT COMMIT HIMSELF TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS, THUS MAKING THE PURPORTED AWARD A COUNTEROFFER WHICH HE MAY OR MAY NOT ACCEPT. THE REASON FOR THE RULE IS NOT APPLICABLE TO THIS CASE.

YOU ALSO CONTEND THAT IN FAILING TO FURNISH ACCURATELY THE PRODUCTION POINT INFORMATION REQUESTED IN THE INVITATION, AMERICAN EQUIPMENT COMPANY WAS NOT A RESPONSIVE BIDDER. IT SEEMS CLEAR THAT THE REQUEST FOR ADVICE AS TO THE POINT OF PRODUCTION AND THE ORIGIN AND INSPECTION POINTS WAS SOLICITED AS A MATTER OF INFORMATION FOR THE BENEFIT AND CONVENIENCE OF THE GOVERNMENT RATHER THAN AS A CONDITION OF THE BID. OBVIOUSLY, THE FURNISHING OF SUCH INFORMATION COULD NOT AFFECT THE OBLIGATION OF THE BIDDER, IN THE EVENT OF AN AWARD, TO FURNISH SUPPLIES ACCEPTABLE TO THE GOVERNMENT. FURTHERMORE, THE AMERICAN EQUIPMENT COMPANY LEGALLY COULD NOT REFUSE TO ACCEPT AN AWARD ON THE GROUND THAT ITS BID WAS DEFECTIVE BECAUSE IT DID NOT INITIALLY FURNISH THE REQUIRED INFORMATION ACCURATELY. CONSEQUENTLY, WE FAIL TO SEE HOW ANY BIDDER COULD BE PREJUDICED BY CONSIDERATION OF THE BID OF THE AMERICAN EQUIPMENT COMPANY. REGARDING THE RESPONSIBILITY OF THE AMERICAN EQUIPMENT COMPANY, YOU ARE ADVISED THAT QUESTIONS CONCERNING THE QUALIFICATIONS OF A PROPOSED CONTRACTOR ARE FOR RESOLUTION PRIMARILY BY THE ADMINISTRATIVE OFFICERS CONCERNED. IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION, WE ARE NOT JUSTIFIED IN OBJECTING TO A DETERMINATION MADE ON THIS QUESTION BY THE ADMINISTRATIVE AGENCY. 37 COMP. GEN. 430; 36 ID. 42. MOREOVER, WHILE THE PERFORMANCE OF A PARTICULAR CONTRACTOR ON A PAST PROCUREMENT MAY HAVE LEFT MUCH TO BE DESIRED, SUCH FACTOR IN AND OF ITSELF DOES NOT CONSTITUTE GROUNDS FOR A MANDATORY DEBARMENT FROM ALL FUTURE PROCUREMENTS, SINCE EACH DETERMINATION OF RESPONSIBILITY MUST BE BASED ON THE SITUATION EXISTING AS OF THE TIME WHEN SUCH DETERMINATION IS MADE. HERE, THE GENERAL SERVICES ADMINISTRATION HAS DETERMINED THAT AMERICAN EQUIPMENT COMPANY IS A RESPONSIBLE BIDDER AND THE RECORD DISCLOSES NO SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR SUCH DETERMINATION.

IN VIEW OF THE RECORD BEFORE US, WE SEE NO VALID BASIS FOR OBJECTING TO THE ACTIONS OF THE GENERAL SERVICES ADMINISTRATION IN DETERMINING THAT AMERICAN EQUIPMENT COMPANY, AS THE RESPONSIVE, RESPONSIBLE LOW BIDDER, WAS ENTITLED TO AWARD OF THE INSTANT PROCUREMENT.