B-156927, NOV. 5, 1965

B-156927: Nov 5, 1965

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GELBAND AND GREEN: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 13. WHICH AWARD WAS PREDICATED UPON A NEGATIVE FACILITY CAPABILITY REPORT ON CAN ORA FARM. THE REQUEST WAS ISSUED BY THE BASE PROCUREMENT OFFICE. WAS FROM THE INCUMBENT CONTRACTOR. CAN ORA FARM'S LATE PROPOSAL WAS CONSIDERED BECAUSE THE DELAY WAS IN THE MAIL. THE CAN ORA FARM PROPOSAL WAS THE LOW BID AND ON ITS FACE APPEARED RESPONSIVE. TO DETERMINE THE BIDDERS "RESPONSIBILITY" EVIDENCE OF SOMETHING MORE THAN PECUNIARY ABILITY WAS NECESSARY. THE AUTHORITIES ARE IN AGREEMENT THAT THE DECISION IS TO BE MADE BY THE AUTHORIZED OFFICIAL OF THE CONTRACTING AGENCY. WHO IS REQUIRED TO ACT FAIRLY UPON REASONABLE INFORMATION. ONCE THE DECISION HAS BEEN MADE IT CANNOT BE OVERTHROWN BY THE COURTS OR OUR OFFICE UNLESS IT CAN BE SHOWN THAT THE DETERMINATION WAS ARBITRARY.

B-156927, NOV. 5, 1965

TO FISHER, SHARLITT, GELBAND AND GREEN:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 13, 1965, REINSTATING THE PROTEST BY CAN ORA FARM, 342 MADISON AVENUE, NEW YORK, NEW YORK, REGARDING THE AWARD OF CONTRACT NO. AF 61 (3081-1725 TO UNITED DAIRY EQUIPMENT COMPANY, WEST CHESTER, PENNSYLVANIA, UNDER REQUEST FOR PROPOSALS NO. 65- SUP-1, WHICH AWARD WAS PREDICATED UPON A NEGATIVE FACILITY CAPABILITY REPORT ON CAN ORA FARM. THE REQUEST WAS ISSUED BY THE BASE PROCUREMENT OFFICE, TORREJON AIR BASE, SPAIN, ON FEBRUARY 23, 1965, FOR PROPOSALS TO SUPPLY DAIRY PRODUCTS IN ACCORDANCE WITH SPECIFICATIONS CONTAINED THEREIN. THE ONLY PROPOSAL RECEIVED BY THE DUE DATE OF MARCH 24, 1965, WAS FROM THE INCUMBENT CONTRACTOR, HOWEVER, CAN ORA FARM'S LATE PROPOSAL WAS CONSIDERED BECAUSE THE DELAY WAS IN THE MAIL, FOR WHICH THE BIDDER COULD NOT BE HELD RESPONSIBLE.

THE CAN ORA FARM PROPOSAL WAS THE LOW BID AND ON ITS FACE APPEARED RESPONSIVE, BUT TO DETERMINE THE BIDDERS "RESPONSIBILITY" EVIDENCE OF SOMETHING MORE THAN PECUNIARY ABILITY WAS NECESSARY. THE IMPORT OF THIS PROCUREMENT REQUIRED CONSIDERATION NOT ONLY OF THE BIDDER'S FINANCIAL RESOURCES BUT ALSO ITS JUDGMENT, SKILL, INTEGRITY AND ABILITY TO SUCCESSFULLY FULFILL THE STRINGENT REQUIREMENTS OF THE CONTRACT.

ACCORDINGLY, A TEAM OF QUALIFIED PERSONNEL FROM THE AIR FORCE NEW YORK CONTRACT MANAGEMENT DISTRICT AND THE BASE PROCUREMENT OFFICE, TORREJON AIR BASE, MADE A PRE-AWARD FACILITY CAPABILITY INSPECTION OF CAN ORA FARM WHICH RESULTED IN A NEGATIVE REPORT ISSUED MAY 13, 1965.

IN REGARD TO THE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, THE AUTHORITIES ARE IN AGREEMENT THAT THE DECISION IS TO BE MADE BY THE AUTHORIZED OFFICIAL OF THE CONTRACTING AGENCY, WHO IS REQUIRED TO ACT FAIRLY UPON REASONABLE INFORMATION. ONCE THE DECISION HAS BEEN MADE IT CANNOT BE OVERTHROWN BY THE COURTS OR OUR OFFICE UNLESS IT CAN BE SHOWN THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS, OR FRAUDULENT. SEE 38 COMP. GEN. 131, 33 ID. 549, BROWN V. PHOENIX, 272 P.2D 358 AND MCNICHOLS V. DENVER, 274 P.2D 317.

SINCE WE FIND NO SUCH BASIS FOR LEGAL OBJECTION TO THE ACTION TAKEN WE CONCUR WITH THE ADMINISTRATIVE DECISION THAT THE PROTEST BE DENIED AND THE CONTRACT NOT BE DISTURBED.

AS TO THE FUTURE EFFECT OF THE NEGATIVE FACILITY CAPABILITY REPORT THE ARMED SERVICES PROCUREMENT REGULATION, SECTION 1-905.1 SUCCINCTLY STATES THAT THE CONTRACTING OFFICER SHALL USE ALL INFORMATION AVAILABLE TO HIM, WHICH INCLUDES REPORTS ON FILE OR WITHIN THE KNOWLEDGE OF OTHER DEPARTMENT OF DEFENSE PERSONNEL, BUT ONLY TO THE EXTENT THAT SUCH INFORMATION IS CURRENTLY VALID. FURTHERMORE, SECTION 1-905.2 PROVIDES THAT WITH RESPECT TO FINANCIAL RESOURCES AND PERFORMANCE CAPABILITY SUCH INFORMATION "SHALL BE OBTAINED ON AS CURRENT A BASIS AS FEASIBLE WITH RELATION TO THE DATE OF CONTRACT AWARD.' SEE B-155199, NOVEMBER 16, 1964. CONSEQUENTLY, THE FINDING YOU COMPLAIN OF MAY NOT BE USED AUTOMATICALLY AS A BASIS FOR REJECTION OF ANY FUTURE BIDS OR PROPOSALS.