B-156652, DEC. 9, 1965

B-156652: Dec 9, 1965

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TO LANCASTER ASSOCIATES: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD MADE TO GENERAL TRAILERS. IS ENGAGED BY THE COMMISSION UNDER COST-TYPE CONTRACT NO. SUPPLIES AND EQUIPMENT AS ARE NECESSARY TO THE PERFORMANCE OF THE CONTRACT WORK AND PROVIDES THAT THE INSTITUTE SHALL USE PROCUREMENT METHODS. PRACTICES AND PROCEDURES THAT ARE ACCEPTABLE TO THE COMMISSION. THE PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS AND AEC PROCUREMENT REGULATIONS ARE NOT BINDING ON THE COMMISSION (AS EXPRESSED IN AECPR 9- 1.5202 AND 9-1.5203) TO MAKE THE FPR AND AECPR AVAILABLE TO COST-TYPE CONTRACTORS SUCH AS THE INSTITUTE FOR CONSIDERATION IN THE DEVELOPMENT OF THEIR OWN WRITTEN PROCUREMENT PRACTICES AND PROCEDURES.

B-156652, DEC. 9, 1965

TO LANCASTER ASSOCIATES:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD MADE TO GENERAL TRAILERS, INCORPORATED, UNDER INVITATION FOR BIDS NO. 53-007, ISSUED BY THE OAK RIDGE INSTITUTE OF NUCLEAR STUDIES.

UNITED STATES ATOMIC ENERGY COMMISSION REPORTS THAT THE OAK RIDGE INSTITUTE OF NUCLEAR STUDIES, A NOT-FOR-PROFIT EDUCATIONAL CORPORATION, IS ENGAGED BY THE COMMISSION UNDER COST-TYPE CONTRACT NO. AT-/40-1/ GEN-33 TO MANAGE, OPERATE AND MAINTAIN CERTAIN RESEARCH, TRAINING, HOSPITAL AND EDUCATIONAL FACILITIES OWNED BY THE GOVERNMENT AT OAK RIDGE, TENNESSEE, AND ELSEWHERE. THE CONTRACT AUTHORIZED THE INSTITUTE TO PROCURE SUCH MATERIALS, SUPPLIES AND EQUIPMENT AS ARE NECESSARY TO THE PERFORMANCE OF THE CONTRACT WORK AND PROVIDES THAT THE INSTITUTE SHALL USE PROCUREMENT METHODS, PRACTICES AND PROCEDURES THAT ARE ACCEPTABLE TO THE COMMISSION. THE PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS AND AEC PROCUREMENT REGULATIONS ARE NOT BINDING ON THE COMMISSION (AS EXPRESSED IN AECPR 9- 1.5202 AND 9-1.5203) TO MAKE THE FPR AND AECPR AVAILABLE TO COST-TYPE CONTRACTORS SUCH AS THE INSTITUTE FOR CONSIDERATION IN THE DEVELOPMENT OF THEIR OWN WRITTEN PROCUREMENT PRACTICES AND PROCEDURES. AECPR 9-1.5202 (A) REQUIRES THAT THE COMMISSION'S CONTRACTING OFFICER, BEFORE APPROVING SUCH PRACTICES AND PROCEDURES, SHALL DETERMINE THAT THEY ARE CONSISTENT WITH THE BASIC AEC PROCUREMENT POLICIES SET FORTH IN AECPR 9-1.5203 AND THAT THEY ARE ADEQUATE TO ACHIEVE THE POLICY OBJECTIVES THERE STATED. THE WRITTEN PROCUREMENT PRACTICES AND PROCEDURES THAT WERE USED BY THE INSTITUTE FOR THE PROCUREMENT ACTION UNDER CONSIDERATION MEET THE ABOVE- STATED REQUIREMENTS AND HAVE BEEN APPROVED BY THE CONTRACTING OFFICER.

AS A PART OF THE WORK PERFORMED FOR THE COMMISSION UNDER THE CONTRACT, THE INSTITUTE CONDUCTS A PROGRAM OF TRAINING THROUGHOUT THE UNITED STATES IN THE APPLICATION AND HANDLING OF RADIOISOTOPES; AND SPECIALLY-EQUIPPED MOBILE TRAILERS ARE USED (GENERALLY ON COLLEGE CAMPUSES) AS LABORATORIES AND CLASSROOMS FOR SUCH TRAINING. THE PROCUREMENT ACTION IN QUESTION INVOLVED THE PURCHASE OF SUCH A TRAILER.

ON NOVEMBER 30, 1954, THE INSTITUTE SENT LETTER NOTICES TO APPROXIMATELY 20 POTENTIAL SUPPLIERS ADVISING OF THE CONTEMPLATED ADVERTISEMENT FOR BIDS FOR THE TRAILER AND ASKING THAT FIRMS INTERESTED IN BIDDING ON THE REQUIREMENT COMPLETE AND RETURN TO THE INSTITUTE A FORM REQUESTING THAT THEY BE PLACED ON THE BIDDERS' LIST TO RECEIVE THE INVITATION. DECEMBER 21, 1964, THE INSTITUTE ISSUED INVITATION NO. 53-007 TO NINE POTENTIAL SUPPLIERS. THE INVITATION WAS ISSUED UNDER PROCUREMENT PROCEDURES THAT ARE SIMILAR TO THE GOVERNMENT'S FORMAL ADVERTISING PROCEDURES AND CALLED FOR THE SUBMISSION OF SEALED BIDS TO BE RECEIVED BY THE INSTITUTE UNTIL 2 P.M. ON FEBRUARY 8, 1965.

THE THREE BIDS RECEIVED AND PUBLICLY OPENED AT THE APPOINTED TIME WERE AS FOLLOWS:

CHART

GENERAL TRAILERS, INC. $46,686.20

LANCASTER ASSOCIATES $49,740.00

THE GERSTENSLAGER COMPANY $59,967.69

THEREAFTER YOU ATTEMPTED TO CONVINCE THE INSTITUTE'S PROCUREMENT PERSONNEL THAT THE LOW BIDDER, GENERAL TRAILERS, WAS NOT QUALIFIED TO PERFORM THE WORK AND SUBMITTED BY LETTERS, IN PERSON, AND BY TELEPHONE VARIOUS DOCUMENTS AND ARGUMENTS IN SUPPORT OF YOUR CONTENTION. BASICALLY YOU CONTEND THAT GENERAL TRAILERS WERE NOT QUALIFIED BY EXPERIENCE TO BUILD THE SPECIAL TYPE OF TRAILER INVOLVED.

IN THE MEANTIME, THE INSTITUTE ITSELF UNDERTOOK TO OBTAIN FACTUAL INFORMATION UPON WHICH TO MAKE A DETERMINATION AS TO THE ABILITY OF GENERAL TRAILERS TO PERFORM THE REQUIRED WORK. FOR THIS PURPOSE A THREE- MEMBER TEAM WAS SENT TO CONDUCT A PRE-AWARD SURVEY OF GENERAL TRAILERS' FACILITIES. BASED UPON THEIR REPORT, DISCUSSIONS WITH THEM, AND OTHER EVIDENCE OBTAINED, IT WAS DETERMINED THAT GENERAL TRAILERS WAS CAPABLE OF PERFORMING THE WORK. THE PROPOSED AWARD TO GENERAL TRAILERS WAS THEN FORWARDED TO THE COMMISSION FOR APPROVAL. HOWEVER, THE COMMISSION HAD RECEIVED COPIES OF YOUR LETTERS AND IN VIEW OF THE CONTENTIONS MADE THEREIN THE PURCHASE ORDER WAS RETURNED TO THE INSTITUTE WITH THE REQUEST THAT THE INSTITUTE REVIEW IN A SYSTEMATIC WAY ALL OF THE INFORMATION NOW IN YOUR HANDS, INCLUDING ANY INFORMATION IN THE LETTERS OF PROTEST, AND DETERMINE WHETHER IN THE JUDGMENT OF RESPONSIBLE OFFICIALS OF YOUR ORGANIZATION THE LOW BIDDER IS OR IS NOT CONSIDERED CAPABLE OF SATISFACTORILY PERFORMING THE WORK CALLED FOR.' SUBSEQUENTLY THE INSTITUTE RETURNED THE PURCHASE ORDER TO THE COMMISSION STATING THAT THEY HAD REVIEWED ALL THE INFORMATION WHICH THEY HAD AND THAT IT WAS THEIR DETERMINATION THAT GENERAL TRAILERS HAS THE ,NECESSARY CAPACITY, ABILITY AND CREDIT TO PERFORM THIS SUBCONTRACT.'

BASED ON SUCH FINDING THE COMMISSION APPROVED AND RETURNED THE ORDER TO THE INSTITUTE. THE AWARD WAS MADE TO GENERAL TRAILERS ON APRIL 7, 1965. THE COMMISSION FURTHER REPORTS THAT, IN THEIR OPINION, THE FACTUAL INFORMATION OBTAINED BY THE INSTITUTE RELATIVE TO GENERAL TRAILERS' TECHNICAL AND FINANCIAL COMPETENCE FULLY SUPPORTS THE INSTITUTE'S DETERMINATION THAT GENERAL TRAILERS HAS THE NECESSARY ABILITY, CAPACITY AND CREDIT TO PERFORM THE WORK.

THIS OFFICE, AS WELL AS THE COURTS, HAS CONSISTENTLY HELD THAT THE QUESTION AS TO A BIDDER'S RESPONSIBILITY IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY. SEE 33 COMP. GEN. 539 AND 38 ID. 131. THE RECORD SHOWS THAT THE NECESSARY DETERMINATION AS TO THE RESPONSIBILITY OF GENERAL TRAILERS WAS MADE BY THE INSTITUTE AND APPROVED BY THE COMMISSION. IN THE ABSENCE OF A SHOWING THAT THE ACTION TAKEN WAS CAPRICIOUS OR ARBITRARY, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION THAT THE SUCCESSFUL BIDDER HAD THE NECESSARY TECHNICAL ABILITY, CAPACITY AND CREDIT TO PERFORM THE WORK. NO SHOWING HAS BEEN MADE THAT THE DETERMINATIONS MADE WERE ARBITRARY OR CAPRICIOUS.

ACCORDINGLY, THERE IS NO BASIS UPON WHICH WE WOULD BE WARRANTED IN QUESTIONING THE AWARD MADE TO THE LOW BIDDER, GENERAL TRAILERS, AND THEREFORE YOUR PROTEST MUST BE DENIED.