B-156999, OCT. 1, 1965

B-156999: Oct 1, 1965

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PREVOST: REFERENCE IS MADE TO YOUR LETTER OF JUNE 23. THE BASIS FOR YOUR PROTEST IS THAT AN AWARD TO WESTREX DOES NOT COMPLY WITH THE PROVISION IN NOTE 13 OF THE REQUEST FOR PROPOSALS THAT AWARD OF THE CONTRACT "SHALL BE MADE ONLY TO AN OFFEROR WHO IS OR HAS BEEN REGULARLY ENGAGED IN THE BUSINESS OF MAINTENANCE/REPAIR/CALIBRATION/CERTIFICATION OF THE TYPE SET FORTH IN THIS RFP.'. IT HAS REPORTED THAT TECHNICAL PERSONNEL HAVE REVIEWED THE EXPERIENCE OF WESTREX AND ARE SATISFIED THAT IT IS ADEQUATE FOR THE WORK INVOLVED. THE CONTRACTING OFFICER HAS DETERMINED THAT WESTREX IS A RESPONSIBLE OFFEROR. WE HAVE INDICATED THAT OUR OFFICE DOES NOT CONDONE THE REJECTION OF OFFERS FROM RESPONSIBLE PARTIES SIMPLY BECAUSE AS A TECHNICAL MATTER THEY DO NOT MEET PRESCRIBED EXPERIENCE QUALIFICATIONS.

B-156999, OCT. 1, 1965

TO MR. F. X. PREVOST:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 23, 1965, AND TO THE TELEGRAM CITED THEREIN, PROTESTING THE AWARD OF A CONTRACT TO WESTREX COMMUNICATIONS DIVISION, LITTON SYSTEMS, INC; UNDER DEPARTMENT OF THE AIR FORCE REQUEST FOR PROPOSALS 36-600-65-5441 WHICH SOLICITED OFFERS FOR MANAGING AND OPERATING CERTAIN GOVERNMENT-OWNED STANDARDS AND PRECISION MEASUREMENT EQUIPMENT LABORATORIES AND CALIBRATION FACILITIES.

ESSENTIALLY, THE BASIS FOR YOUR PROTEST IS THAT AN AWARD TO WESTREX DOES NOT COMPLY WITH THE PROVISION IN NOTE 13 OF THE REQUEST FOR PROPOSALS THAT AWARD OF THE CONTRACT "SHALL BE MADE ONLY TO AN OFFEROR WHO IS OR HAS BEEN REGULARLY ENGAGED IN THE BUSINESS OF MAINTENANCE/REPAIR/CALIBRATION/CERTIFICATION OF THE TYPE SET FORTH IN THIS RFP.'

HOWEVER, THE AIR FORCE HAS ADVISED THAT THE PROCURING ACTIVITY DID NOT INTEND NOTE 13 TO BE AS RESTRICTIVE AS IT APPEARS, BUT INTENDED INSTEAD THAT IT BE A STATEMENT OF CERTAIN GENERAL CRITERIA WHICH WOULD BE USED IN DETERMINING THE RESPONSIBILITY OF THE PROPOSERS. IN THAT CONNECTION, IT HAS REPORTED THAT TECHNICAL PERSONNEL HAVE REVIEWED THE EXPERIENCE OF WESTREX AND ARE SATISFIED THAT IT IS ADEQUATE FOR THE WORK INVOLVED. MOREOVER, THE CONTRACTING OFFICER HAS DETERMINED THAT WESTREX IS A RESPONSIBLE OFFEROR.

OUR OFFICE HAS HELD THAT AWARD OF A CONTRACT MAY BE LIMITED TO THOSE OFFERORS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD WHERE THE BIDDING CONDITIONS SO PROVIDE AND A DETERMINATION HAS BEEN MADE THAT THE INTERESTS OF THE GOVERNMENT WOULD BE SERVED THEREBY. 37 COMP. GEN. 196 AND ID. 420. HOWEVER, IN 39 COMP. GEN. 173, WE HAVE INDICATED THAT OUR OFFICE DOES NOT CONDONE THE REJECTION OF OFFERS FROM RESPONSIBLE PARTIES SIMPLY BECAUSE AS A TECHNICAL MATTER THEY DO NOT MEET PRESCRIBED EXPERIENCE QUALIFICATIONS.

IN THAT CONNECTION, IT WAS SAID AT PAGE 178 THAT "THE STATEMENT OF SUCH QUALIFICATIONS SHOULD NOT BE CONSIDERED AS HAVING THE EFFECT OF TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION.'

IN THE CIRCUMSTANCES, SINCE THE AIR FORCE IS SATISFIED THAT WESTREX IS CAPABLE OF PERFORMING THE SUBJECT CONTRACT, THE FAILURE TO REJECT ITS OFFER BECAUSE IT DID NOT STRICTLY CONFORM TO THE EXPERIENCE REQUIREMENTS SPECIFIED IN THE SOLICITATION DOES NOT APPEAR IMPROPER.