B-159450, AUG. 4, 1966

B-159450: Aug 4, 1966

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MURRAY LUFTIG: REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 16. IT IS YOUR CONTENTION THAT THE CONTRACT. AWARD MADE TO J AND M BECAUSE ITS BID WAS $22. BECAUSE THE PRE-AWARD SURVEY WAS OF SUCH A NATURE AS TO MAKE THE DETERMINATION OF NONRESPONSIBILITY UNSUPPORTABLE. THE ADMINISTRATIVE REPORT INDICATES THAT BECAUSE THE CONTRACTING OFFICER HAD NO KNOWLEDGE OF THE PERFORMANCE CAPABILITIES OF YOUR CLIENT HE REQUESTED THE DEFENSE CONTRACT ADMINISTRATION DISTRICT TO PERFORM A PRE- AWARD SURVEY PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1- 904.1 WHICH STATES GENERALLY THAT BEFORE A CONTRACT MAY BE AWARDED TO ANY PERSON THE CONTRACTING OFFICER SHALL FIRST MAKE A WRITTEN DETERMINATION THAT A PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE GUIDELINES SET FORTH IN ASPR 1-902.

B-159450, AUG. 4, 1966

TO MR. MURRAY LUFTIG:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 16, 1966, PROTESTING AWARD OF CONTRACT NO. N0024367C0004, TO A FIRM OTHER THAN YOUR CLIENT, J AND M TAILORS, BY THE PURCHASING OFFICE, MARINE CORPS RECRUIT DEPOT, SAN DIEGO, CALIFORNIA.

IT IS YOUR CONTENTION THAT THE CONTRACT, COVERING THE ALTERATION AND FITTING OF MARINE CORPS UNIFORMS, SHOULD BE CANCELLED, AND AWARD MADE TO J AND M BECAUSE ITS BID WAS $22,532.05 LOWER THAN THE AWARDED PRICE OF $224,801.10, AND BECAUSE THE PRE-AWARD SURVEY WAS OF SUCH A NATURE AS TO MAKE THE DETERMINATION OF NONRESPONSIBILITY UNSUPPORTABLE.

THE ADMINISTRATIVE REPORT INDICATES THAT BECAUSE THE CONTRACTING OFFICER HAD NO KNOWLEDGE OF THE PERFORMANCE CAPABILITIES OF YOUR CLIENT HE REQUESTED THE DEFENSE CONTRACT ADMINISTRATION DISTRICT TO PERFORM A PRE- AWARD SURVEY PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1- 904.1 WHICH STATES GENERALLY THAT BEFORE A CONTRACT MAY BE AWARDED TO ANY PERSON THE CONTRACTING OFFICER SHALL FIRST MAKE A WRITTEN DETERMINATION THAT A PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE GUIDELINES SET FORTH IN ASPR 1-902.

THE SURVEY, WHICH RECOMMENDED THAT AWARD NOT BE MADE TO J AND M, CONTAINED THE FOLLOWING PERTINENT STATEMENTS:

"A. DURING DISCUSSIONS CONCERNING REQUIRED TASKS TO BE PERFORMED THERE WERE DIFFERENCES OF OPINION BETWEEN THE PARTNERS AS TO HOW THE ALTERATIONS WOULD BE ACCOMPLISHED. THEY HAD DIFFICULTY EXPLAINING ALTERATIONS TO THE TEAM, AND IT IS APPARENT THAT THEY WOULD HAVE SIMILAR DIFFICULTY IN EXPLAINING THE TASKS TO THE SHOP PERSONNEL.

"B. THE PARTNERS DID NOT PRESENT ANY DOCUMENT LISTING NAMES OF PROSPECTIVE EMPLOYEES CONTACTED FOR POSSIBLE AVAILABILITY TO COMMENCE WORK BY 1 JULY 1966. BOTH ARE MEN'S TAILORS WITH NO EXPERIENCE ON WOMEN'S GARMENTS, AND NO SPECIFIC PLANS FOR OBTAINING LADIES' TAILORS.

"C. THE BOILER LISTED IN SECTION V APPEARED TO BE IN SUCH CONDITION, THAT IT IS DOUBTFUL IF IT WOULD PASS ANY REQUIRED SAFETY INSPECTION. THE PRESSES AND BOILER WERE NOT INSTALLED OR CONNECTED WITH NECESSARY PIPING.'

THE CONTRACTING OFFICER WAS AWARE, IN THIS INSTANCE, THAT THE CONTRACTOR'S CAPACITY AND ABILITY TO PERFORM WAS EXTREMELY IMPORTANT BECAUSE, SHOULD THE SUCCESSFUL CONTRACTOR BE UNFAMILIAR WITH THE GOVERNMENT'S ALTERATION REQUIREMENTS, AND BE DELINQUENT IN JUST ONE SERIES, OF THE THREE SERIES OF 320 RECRUITS EACH PER WEEK, HE WOULD BE IN A POSITION FROM WHICH HE COULD NOT RECOVER SO FAR AS DELIVERIES ARE CONCERNED. THIS WOULD IN TURN CREATE A TREMENDOUS LOGISTICS PROBLEM AT THE DEPOT BECAUSE IT WOULD DELAY THE TRANSFER OF RECRUITS TO THEIR NEXT DUTY ASSIGNMENTS.

TAKING COGNIZANCE OF THE FOREGOING FACTS WHICH RELATE TO ONE OF THE ESSENTIAL FACTORS TO BE EVALUATED IN DETERMINING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, THAT IS, HIS APPARENT ABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS SET OUT IN THE INVITATION, AN ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY WAS MADE BY THE CONTRACTING OFFICER. IT IS A WELL-SETTLED RULE THAT OUR OFFICE WILL NOT INTERFERE WITH SUCH A DETERMINATION IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR. 37 COMP. GEN. 430. THE REASONS UNDERLYING THIS RULE ARE SET OUT IN OUR DECISION AT 39 COMP. GEN. 705, IN PART, AS FOLLOWS:

"* * * WHILE SUCH JUDGMENT SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICES INVOLVED, SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY TO DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING OFFICIALS. * * *"

IN VIEW THEREOF WE WOULD NOT BE JUSTIFIED, ON THE PRESENT RECORD, IN DISAGREEING WITH THE CONTRACTING OFFICER'S DETERMINATION THAT J AND M WAS NOT A RESPONSIBLE BIDDER UNDER THE STANDARDS SET FORTH IN ASPR. ACCORDINGLY, NO LEGAL BASIS EXISTS FOR DISTURBING THE ADMINISTRATIVE ACTION TAKEN UNDER THE CONTRACT. SEE 37 COMP. GEN. 430.

IT MAY BE POINTED OUT THAT WHERE THE DETERMINATION OF RESPONSIBILITY INVOLVES THE CAPACITY OR CREDIT OF A SMALL BUSINESS CONCERN, AS HERE, THE NORMAL PROCEDURE IS FOR THE CONTRACTING OFFICER TO REFER THE QUESTION TO THE SMALL BUSINESS ADMINISTRATION. ASPR 1-705.4. HOWEVER, SUCH REFERRAL IS NOT NECESSARY IF THE CONTRACTING OFFICER CERTIFIES IN WRITING THAT THE AWARD MUST BE MADE WITHOUT DELAY. ASPR 1-705.4 (C) (IV). SINCE A CERTIFICATION THAT THE AWARD COULD NOT BE DELAYED FOR THE REASONS ABOVE INDICATED, WAS MADE BY THE CONTRACTING OFFICER, SUCH A REFERRAL WAS NOT REQUIRED.