B-156520, JUL. 23, 1965

B-156520, JUL. 23, 1965

TO GENERAL PRECISION, INC., GPL DIVISION:

REFERENCE IS MADE TO YOUR LETTER OF JULY 9, 1965, REQUESTING RECONSIDERATION OF OUR DECISION OF JULY 2, 1965, WHEREIN IT WAS HELD THAT THE PROPOSAL REJECTION OF LORAL ELECTRONIC SYSTEMS' LOW BID UNDER INVITATION FOR BIDS NO. 600-454-65 BY THE NAVY PURCHASING OFFICE ON THE BASIS THAT THE BIDDER WAS NONRESPONSIBLE WOULD NOT BE IN ACCORD WITH APPLICABLE LAW AND IT SHOULD THEREFORE BE CONSIDERED FOR AWARD.

FIRST, YOU REQUEST THAT OUR DECISION BE RECONSIDERED BECAUSE OF AN APPARENT CONFLICT BETWEEN OUR OFFICE AND THE BUREAU OF NAVAL WEAPONS, AS WELL AS YOU AND OTHER BIDDERS, AS TO THE USE OF AN EXPERIENCE QUALIFICATION CLAUSE IN DETERMINING THE RESPONSIBILITY OF A BIDDER. IT IS YOUR POSITION THAT THE REQUIREMENTS OF SUCH A PROVISION MUST BE GIVEN A MANDATORY EFFECT AND WHEN SO APPLIED YOU ARE THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER AND, THEREFORE, ENTITLED TO THE AWARD. THIS SAME ARGUMENT WAS ADVANCED BY YOU IN CORRESPONDENCE RECEIVED PRIOR TO OUR DECISION AND WAS GIVEN DUE CONSIDERATION THEREIN. IN THIS CONNECTION, WE DIRECT YOUR ATTENTION TO THE LAST PARAGRAPH ON PAGE 4 AND THE FIRST PARAGRAPH ON PAGE 5 OF OUR JULY 2 LETTER. WE BELIEVE THAT THESE PASSAGES ADEQUATELY AND CLEARLY STATE THE POSITION OF OUR OFFICE WITH RESPECT TO THE USE, APPLICATION, AND EFFECT OF EXPERIENCE QUALIFICATION CLAUSES SUCH AS IN THE SUBJECT INVITATION. WHILE THERE IS UNDOUBTEDLY SOME DISAGREEMENT WITH OUR VIEWS IN THIS REGARD, THIS FACT ALONE DOES NOT REQUIRE A REVERSAL OF WHAT WE CONSIDER TO BE THE PROPER INTERPRETATION AND APPLICATION OF THE LAW AS STATED IN OUR DECISION. FURTHERMORE, TO ASCRIBE SUCH A RESTRICTIVE MEANING TO AN EXPERIENCE QUALIFICATION CLAUSE AND REJECT A BIDDER WITHOUT REGARD TO HIS ACTUAL QUALIFICATIONS WOULD BE TO THWART THE VERY PURPOSE OF COMPETITIVE PROCUREMENT AND NOT BE IN THE BEST INTERESTS OF THE GOVERNMENT.

IN THE ALTERNATIVE, YOU SUGGEST THAT IF WE DO NOT AGREE WITH YOUR FIRST ARGUMENT WE SHOULD DIRECT CANCELLATION OF THE PRESENT INVITATION BECAUSE OF THE "CONFLICTING ARGUMENTS AND PROTESTS" THAT HAVE RELATED FROM ITS USE. THIS ACTION SHOULD BE TAKEN, YOU SAY, OUT OF "FAIRNESS TO THE BIDDERS AND NON-BIDDERS ALIKE.' WE FAIL TO SEE ANY MERIT IN YOUR CONTENTION THAT INCLUSION OF THIS CLAUSE IN THE IFB WAS UNFAIR TO THE BIDDERS. IT IS MANIFEST THAT THEY WERE NOT DETERRED FROM BIDDING, WHETHER THEY READ THE CLAUSE AS YOU WOULD READ IT OR SO WE HAVE HELD IT SHOULD BE READ. MOREOVER, USE OF THE CLAUSE WAS NOT UNFAIR TO YOU OR ANY OTHER BIDDER MEETING ITS LITERAL REQUIREMENTS, SINCE THE PURPOSE OF SUCH A CLAUSE IS TO FACILITATE THE DETERMINATION OF A BIDDER'S RESPONSIBILITY AND THOSE BIDDERS NOT MEETING THE LITERAL REQUIREMENTS MUST BE OTHERWISE DETERMINED RESPONSIBLE IN ORDER FOR THEIR BIDS TO BE CONSIDERED FOR AWARD.

WHETHER USE OF THE EXPERIENCE QUALIFICATION CLAUSE RESULTED IN UNFAIRNESS TO ANY NONBIDDERS IS PROBLEMATICAL. HOW MANY, IF ANY, POTENTIAL BIDDERS WOULD ALSO HAVE BEEN ABLE TO QUALIFY IN A MANNER SIMILAR TO LORAL, AND WHETHER ANY OF SUCH POTENTIAL BIDDERS MAY HAVE BEEN DISCOURAGED FROM SUBMITTING A BID BECAUSE OF A LITERAL INTERPRETATION OF THE CLAUSE, IS A MATTER OF CONJECTURE. ON THE OTHER HAND, WE KNOW THAT AT LEAST THIRTEEN FIRMS APPARENTLY FELT THEY WERE QUALIFIED AND, ACCORDING TO YOUR STATEMENT, ONLY THREE OF THESE MET THE LITERAL REQUIREMENTS OF THE EXPERIENCE CLAUSE. IN ADDITION, THE FACT THAT THIRTEEN BIDS WERE RECEIVED WHEN ONLY TWELVE FIRMS WERE SOLICITED INDICATES THAT THE OPPORTUNITY FOR QUALIFIED BIDDERS TO COMPETE, AS REQUIRED BY THE LAWS AND REGULATIONS GOVERNING ADVERTISED PUBLIC PROCUREMENTS, WAS NOT UNDULY RESTRICTED. THESE CIRCUMSTANCES WE SEE NO JUSTIFIABLE BASIS UPON WHICH WE COULD CONCLUDE THAT THE EXPERIENCE QUALIFICATION WAS SO PREJUDICIAL TO NONBIDDERS AS TO REQUIRE CANCELLATION OF THE INVITATION AND READVERTISEMENT OF THE REQUIREMENT.