B-155745, MAR. 22, 1965

B-155745: Mar 22, 1965

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IS NOT A RESPONSIBLE BIDDER TO THE ABOVE INVITATION. WAS FOR A MULTI-YEAR PROCUREMENT OF 25 LITER CAPACITY LIQUID OXYGEN CONVERTERS FOR USE ON C-141A AIRCRAFT. WAS FOR 84 UNITS AND APPLICABLE DATA. WAS FOR 84 UNITS FOR FISCAL YEAR 1965. 356 ($909 PER UNIT) WAS LOW ON THIS REQUIREMENT. WAS THE LOW BIDDER FOR THIS REQUIREMENT. 074 ($909 PER UNIT) WAS SECOND LOW FOR THE MULTI-YEAR REQUIREMENT. THE INVITATION PROVIDED ON PAGE 2 OF THE SCHEDULE: "* * * IF THE MULTI-YEAR PRICE IS LOW. OTHERWISE AWARD SHALL BE MADE ON THE BASIS OF ALTERNATE "A.'" THE BASIS OF YOUR PROTEST IS THAT ESSEX HAS NOT MADE TIMELY DELIVERIES UNDER CONTRACT NOS. THAT BECAUSE OF THE DELAY BY ESSEX YOU WERE AWARDED A CONTRACT TO MAKE INTERIM DELIVERIES OF THE ITEMS.

B-155745, MAR. 22, 1965

TO THE FIREWEL COMPANY, INCORPORATED:

WE REFER TO YOUR LETTER OF DECEMBER 17, 1964, AND TELEGRAM OF DECEMBER 11, 1964, PROTESTING THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 33-657-65-34. YOU ALLEGE THAT THE LOW BIDDER, ESSEX CRYOGENICS, INC., IS NOT A RESPONSIBLE BIDDER TO THE ABOVE INVITATION.

THE INVITATION ISSUED BY THE CONTRACTUAL INSTRUMENTS DIVISION, WRIGHT- PATTERSON AIR FORCE BASE, OHIO, WAS FOR A MULTI-YEAR PROCUREMENT OF 25 LITER CAPACITY LIQUID OXYGEN CONVERTERS FOR USE ON C-141A AIRCRAFT. ALTERNATE A OF THE INVITATION, FOR FISCAL YEAR 1965, WAS FOR 84 UNITS AND APPLICABLE DATA. ALTERNATE B, THE MULTI-YEAR REQUIREMENT, WAS FOR 84 UNITS FOR FISCAL YEAR 1965, 84 UNITS FOR FISCAL YEAR 1966, AND 18 UNITS FOR FISCAL YEAR 1967 AND APPLICABLE DATA.

YOUR BID ON ALTERNATE A, THE FISCAL YEAR 1965 REQUIREMENT, QUOTING A TOTAL PRICE OF $76,356 ($909 PER UNIT) WAS LOW ON THIS REQUIREMENT. ESSEX QUOTED A TOTAL PRICE OF $78,493.80 FOR ALTERNATE A. ESSEX, QUOTING A TOTAL PRICE OF $165,316.80 ($888.80 PER UNIT) DISCOUNTED AT ONE-HALF PERCENT, 10 DAYS, FOR ALTERNATE B, THE MULTI-YEAR PROCUREMENT, WAS THE LOW BIDDER FOR THIS REQUIREMENT. YOUR BID QUOTING A TOTAL PRICE OF $169,074 ($909 PER UNIT) WAS SECOND LOW FOR THE MULTI-YEAR REQUIREMENT. THE INVITATION PROVIDED ON PAGE 2 OF THE SCHEDULE:

"* * * IF THE MULTI-YEAR PRICE IS LOW, AWARD SHALL BE MADE ON THAT BASIS; OTHERWISE AWARD SHALL BE MADE ON THE BASIS OF ALTERNATE "A.'"

THE BASIS OF YOUR PROTEST IS THAT ESSEX HAS NOT MADE TIMELY DELIVERIES UNDER CONTRACT NOS. AF 33 (657) 12691 AND AF 33 (657) 13815, FOR THE SAME TYPE ITEMS AS IN THE INSTANT PROCUREMENT. ALSO, THAT BECAUSE OF THE DELAY BY ESSEX YOU WERE AWARDED A CONTRACT TO MAKE INTERIM DELIVERIES OF THE ITEMS. YOU HAVE BROUGHT TO OUR ATTENTION A CONSENT DECREE FILED BY ESSEX TO SETTLE DIFFERENCES WHICH WERE THE SUBJECT OF A CIVIL ACTION BY YOUR CONCERN AGAINST ESSEX, AND YOU ALLEGE THAT THIS CONSENT DECREE MIGHT HAVE SOME BEARING ON ESSEX'S ABILITY TO PERFORM A CONTRACT AWARDED PURSUANT TO THE INSTANT INVITATION.

THE DEPARTMENT OF THE AIR FORCE ADVISES THAT THE PRIMARY CAUSES OF THE DELAY ON THE PREVIOUS CONTRACTS WITH ESSEX WAS DUE TO DIFFICULTIES WITH THE RELIEF VALVE, WHICH THE CONTRACTING OFFICER STATES HAVE BEEN SOLVED, AND THAT AFTER SOLUTION OF THE RELIEF VALVE PROBLEM, 40 UNITS WERE ACCEPTED ON A PROVISIONAL BASIS. ON DECEMBER 17, 1964, THE CONTRACTING OFFICER MADE A DETERMINATION THAT ESSEX CRYOGENICS WAS A RESPONSIBLE BIDDER UNDER THE INSTANT INVITATION. THE FACILITIES CAPABILITIES REPORT GAVE ESSEX A FAVORABLE RECOMMENDATION IN REGARD TO FACILITIES AND PERFORMANCE, AND FINANCIAL AND BUSINESS PRACTICES. THE PRESENT POSITION OF THE AIR FORCE, STATED IN ITS REPORT TO OUR OFFICE OF MARCH 5, 1965, IS THAT ESSEX WILL ATTAIN A FULL LEVEL OF QUALIFICATION FOR PRODUCTION OF THE SUBJECT PROCUREMENT PRIOR TO THE DATE SET FOR PRODUCTION TO BEGIN AND THAT ESSEX HAS EXPANDED BOTH ITS FACILITIES AND WORK FORCE. THE REPORT FROM THE DEPARTMENT OF THE AIR FORCE INDICATES THAT AN AWARD HAS BEEN MADE TO ESSEX BECAUSE OF URGENCY FOR THE REQUIREMENTS OF THIS INVITATION.

WITH RESPECT TO DETERMINATIONS REGARDING THE RESPONSIBILITY OF BIDDERS WE STATED IN 43 COMP. GEN. 228, 230, AS FOLLOWS:

"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.'

IN VIEW OF THE RECORD SUBMITTED TO OUR OFFICE BY THE AIR FORCE, WE CANNOT SAY THAT THE AIR FORCE'S DETERMINATION THAT ESSEX WOULD BE ABLE TO PERFORM A CONTRACT FOR THE INSTANT PROCUREMENT WAS ARBITRARY, CAPRICIOUS OR IN BAD FAITH. CONSEQUENTLY, WE WILL NOT QUESTION AIR FORCE'S DETERMINATION ON THIS MATTER.