B-158143, MAR. 4, 1966

B-158143: Mar 4, 1966

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4. THAT IT WILL BE UNABLE TO PERFORM ACCORDING TO THE SPECIFICATIONS FOR THE DOLLAR AMOUNT BID. A COPY OF WHICH WAS OBTAINED BY OUR OFFICE FROM THE ADDRESSEE. THE FOLLOWING RFQ REQUIREMENTS WERE SPECIFICALLY REFERENCED IN THAT LETTER: (A) PARAGRAPH 17. YOUR PROTEST FURTHER STATES THAT EXEC-AIR WAS DEFICIENT IN THE ABOVE RFQ REQUIREMENTS INASMUCH AS IT HAD NO EXPERIENCE ON AIRCRAFT OF SIMILAR COMPLEXITY SINCE ITS ACTIVITIES WERE CONFINED TO LIGHT AIRCRAFT. ITS PHYSICAL FACILITY WAS INADEQUATE FOR PERFORMING ON THE CONTRACT AND IT DID NOT POSSESS THE NECESSARY TECHNICAL AND PRODUCTION CAPABILITIES. IT IS FURTHER ARGUED. WHICH WAS NOT CURRENTLY AVAILABLE TO THE INDUSTRY.

B-158143, MAR. 4, 1966

TO REMMERT-WERNER, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1965, PROTESTING THE AWARD OF CONTRACT NO. NOW 66-0125-F, FOR THE OVERHAUL OF 18 T-39D AIRCRAFT TO EXEC-AIR, INCORPORATED, AND ALLEGING THAT THE SUCCESSFUL BIDDER LACKS EXPERIENCE, ADEQUATE QUALIFICATIONS AND SUFFICIENT FACILITIES TO PERFORM THE CONTRACT REQUIREMENTS, AND THAT IT WILL BE UNABLE TO PERFORM ACCORDING TO THE SPECIFICATIONS FOR THE DOLLAR AMOUNT BID.

YOUR POSITION APPEARS TO BE SET OUT IN A LETTER DATED OCTOBER 8, 1965, TO THE DIRECTOR OF BUREAU AIR FRAME, BUREAU OF NAVAL WEAPONS, A COPY OF WHICH WAS OBTAINED BY OUR OFFICE FROM THE ADDRESSEE, IN WHICH YOU ALLEGE THAT INCONSISTENCIES EXIST BETWEEN THE FINAL AWARD AND THE ORIGINAL REQUEST FOR QUOTATIONS (RFQ). THE FOLLOWING RFQ REQUIREMENTS WERE SPECIFICALLY REFERENCED IN THAT LETTER:

(A) PARAGRAPH 17, WHICH STATES THAT A PRE-AWARD SURVEY WOULD REQUIRE EVIDENCE OF TECHNICAL, PRODUCTION, MANAGERIAL, FINANCIAL AND SIMILARABILITIES TO PERFORM;

(B) PARAGRAPH 2 OF THE ADDITIONAL TERMS AND CONDITIONS, WHICH REQUIRES A DEMONSTRATION OF THE ABILITY TO PERFORM WORK OF SIMILAR COMPLEXITY, THE ABILITY TO MEET DELIVERY REQUIREMENTS AND THE POSSESSION OF ADEQUATE FACILITIES;

(C) PARAGRAPH 5, SUBPARAGRAPH 3, WHICH REQUIRES SUBMISSION OF A SCHEMATIC OF FACILITIES WITH A WORK FLOW PLAN INDICATED (IN THIS REGARD YOU QUESTION THE EXISTENCE OF THE NECESSARY FACILITIES);

(D) PARAGRAPH 5, SUBPARAGRAPH 5, WHICH REQUIRES SUBMISSION OF THE BIDDER'S PAST CONTRACT HISTORY ON THE OVERHAUL AND OR MAINTENANCE OF AIRCRAFT.

YOUR PROTEST FURTHER STATES THAT EXEC-AIR WAS DEFICIENT IN THE ABOVE RFQ REQUIREMENTS INASMUCH AS IT HAD NO EXPERIENCE ON AIRCRAFT OF SIMILAR COMPLEXITY SINCE ITS ACTIVITIES WERE CONFINED TO LIGHT AIRCRAFT; ITS PHYSICAL FACILITY WAS INADEQUATE FOR PERFORMING ON THE CONTRACT AND IT DID NOT POSSESS THE NECESSARY TECHNICAL AND PRODUCTION CAPABILITIES. IT IS FURTHER ARGUED, FROM YOUR 25 YEARS EXPERIENCE IN THE FIELD, THAT THE CONTRACTOR CANNOT MEET THE SPECIFICATIONS OF THE CONTRACT FOR THE UNREALISTIC AMOUNT BID.

WITH REGARD TO YOUR OBJECTIONS CONCERNING THE EXPERIENCE, QUALIFICATIONS AND FACILITIES OF EXEC-AIR, THE ADMINISTRATIVE RECORD INDICATES THAT THE AGENCY INQUIRED INTO THE AVAILABLE FACILITIES, THE PERSONNEL TO BE ASSIGNED TO THE PROJECT IN THE EVENT OF AWARD, AND THE EXPERIENCE OF THE SUCCESSFUL BIDDER. PERTINENT INFORMATION CONSIDERED BY THE BOARD, WHICH WAS NOT CURRENTLY AVAILABLE TO THE INDUSTRY, WAS THAT THE FACILITIES OF BONANZA AIRLINES, INCLUDING SHOP AND EQUIPMENT, WERE TO BE TAKEN OVER BY EXEC-AIR. THE IMMEDIATE USE OF THESE FACILITIES WAS IN FACT MADE AVAILABLE TO EXEC-AIR. FURTHER, WHILE EXEC-AIR HAD NOT PREVIOUSLY PERFORMED ON A COMPLETE OVERHAUL CONTRACT, IT HAD PERFORMED OVERHAUL OF THE MAJOR COMPONENTS WHICH MAKE UP AN AIRFRAME, INCLUDING WINGS, FUSELAGE AND ENGINES. THIS EXPERIENCE WAS DETERMINED TO BE SUFFICIENT FOR THE PURPOSE OF OVERHAULING THE T-39D, A RELATIVELY UNCOMPLICATED AIRCRAFT.

WITH RESPECT TO THE QUESTION RAISED IN YOUR LETTER REGARDING EXEC AIR'S ABILITY TO COMPLY WITH DELIVERY REQUIREMENTS SPECIFIED IN THE RFQ, THE RECORD SHOWS THAT THE PROCUREMENT REVIEW BOARD POSSESSED INFORMATION SUBMITTED BY EXEC-AIR REGARDING THE APPROXIMATE NUMBER OF MAN-HOURS NECESSARY FOR THE SUCCESSFUL BIDDER TO PERFORM THE REQUIRED WORK. IN THIS REGARD IT IS RELEVANT THAT EVEN THOUGH THE NUMBER OF MAN HOURS ESTIMATED BY EXEC-AIR WAS ACCEPTABLE TO GOVERNMENT TECHNICIANS, DUE TO THE WIDE VARIANCE IN PRICES OF THE BIDS SUBMITTED THE PROCUREMENT REVIEW BOARD AGAIN REQUESTED THE COMPANY TO FURNISH ADDITIONAL INFORMATION CONCERNING ITS FACILITIES, EXPERIENCE AND PERSONNEL. IN ADDITION, THE COMPANY WAS REQUESTED TO REVIEW AND CONFIRM ITS QUOTED PRICE, ALL OF WHICH WAS COMPLIED WITH BY THE CONTRACTOR.

QUESTIONS AS TO THE RESPONSIBILITY AND CAPABILITY OF A BIDDER ON A PROPOSED GOVERNMENT CONTRACT ARE MATTERS PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY. SUCH DETERMINATION, ONCE MADE, WILL NOT BE QUESTIONED BY THE COURTS OR OUR OFFICE, IN THE ABSENCE OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DECISION. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 96; 37 COMP. GEN. 430, 435; B- 129561, NOVEMBER 23, 1956. BASED UPON THE PRESENT RECORD IT WOULD APPEAR THAT THE BOARD DILIGENTLY INVESTIGATED AND EVALUATED EXEC-AIR'S CAPABILITIES, AND IN VIEW OF THE WEIGHT OF THE FACTS OUTLINED ABOVE YOUR PROTEST DOES NOT SUPPORT THE CONCLUSION THAT NO REASONABLE BASIS EXISTED FOR THE BOARD'S AWARD TO EXEC-AIR.

WITH REGARD TO YOUR OBJECTION THAT THE SUCCESSFUL BIDDER IS INCAPABLE OF PERFORMING THE CONTRACT SPECIFICATIONS FOR THE AMOUNT BID, WE ARE AWARE OF NO LEGAL PRINCIPLE ON WHICH AN AWARD MAY BE PRECLUDED OR DISTURBED MERELY BECAUSE THE LOW BIDDER SUBMITTED AN UNPROFITABLE PRICE. SEE B-154750, NOVEMBER 17, 1964; B-149551, AUGUST 16, 1962.

ACCORDINGLY, WE MUST ADVISE THAT THE PRESENT RECORD PRESENTS NO LEGAL BASIS UPON WHICH TO QUESTION THE VALIDITY OF THE CONTRACT AWARDED TO EXEC- AIR, AND YOUR PROTEST MUST THEREFORE BE DENIED.