B-159487, AUG. 19, 1966

B-159487: Aug 19, 1966

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TO FINK AND PAVIA: REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 20. BOTH IFBS WERE ISSUED BY THE BONNEVILLE POWER ADMINISTRATION (BPA) FOR THE PROCUREMENT OF TOWER STEEL. WHICH WERE GROUPED UNDER SCHEDULES I AND II. BIDDERS WERE ADVISED THAT AWARD WOULD BE MADE BY SCHEDULE OR AS A WHOLE TO ONE BIDDER. THE SEVEN BIDS RECEIVED UNDER IFB NO. 425 WERE OPENED. WAS LOW. CECCOLI WAS SECOND LOW. (SAE) WAS THIRD LOW. SAE WAS LOW. NICHIMEN WAS SECOND LOW. CECCOLI WAS THIRD LOW. THE STANDING OF THE THREE LOWEST BIDDERS WAS THE SAME AS FOR SCHEDULE I ALONE. CECCOLI WAS ADVISED BY THE CONTRACTING OFFICER AS FOLLOWS: "THIS HAS REFERENCE TO YOUR BID SUBMITTED ON OUR INVITATION FOR BIDS NO. 425 COVERING APPROXIMATELY 5200 TONS OF TOWER STEEL.

B-159487, AUG. 19, 1966

TO FINK AND PAVIA:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 20, 1966, AND RELATED CORRESPONDENCE, PROTESTING, ON BEHALF OF OFFICINE VITTORIO CECCOLI S.P.A. (CECCOLI), AGAINST THE REJECTION BY THE DEPARTMENT OF THE INTERIOR OF A BID SUBMITTED BY CECCOLI UNDER INVITATION FOR BIDS (IFB) NO. 425 AND AGAINST AWARD TO ANY OTHER BIDDER UNDER IFB NO. 464. BOTH IFBS WERE ISSUED BY THE BONNEVILLE POWER ADMINISTRATION (BPA) FOR THE PROCUREMENT OF TOWER STEEL.

IFB NO. 425, ISSUED MAY 3, 1966, WITH A BID OPENING DATE OF MAY 26, COVERED THE PROCUREMENT OF APPROXIMATELY 5,200 TONS OF TOWER STEEL, SET FORTH IN 59 ITEMS, WHICH WERE GROUPED UNDER SCHEDULES I AND II. ON PAGE 8 OF THE IFB, BIDDERS WERE ADVISED THAT AWARD WOULD BE MADE BY SCHEDULE OR AS A WHOLE TO ONE BIDDER, EITHER F.O.B. DESTINATION OR F.O.B. BIDDER'S SHIPPING POINT. ON PAGE 9 OF THE IFB, THE DELIVERY SCHEDULE CALLED FOR DELIVERY OF ALL MATERIAL OR EQUIPMENT WITHIN PERIODS RANGING FROM 375 TO 465 DAYS, F.O.B. BIDDER'S SHIPPING POINT, OR FROM 395 TO 485 DAYS, F.O.B. DESTINATION.

ON MAY 26, THE SEVEN BIDS RECEIVED UNDER IFB NO. 425 WERE OPENED. ALL SEVEN BIDDERS QUOTED ON SCHEDULE I, BUT ONLY SIX BIDDERS QUOTED ON SCHEDULE II. ON SCHEDULE I, NICHIMEN CO. LTD. (NICHIMEN), WAS LOW; CECCOLI WAS SECOND LOW; AND SOCIETA ANONIMA ELETTRIFICAZIONE S.P.A. (SAE) WAS THIRD LOW. ON SCHEDULE II, SAE WAS LOW; NICHIMEN WAS SECOND LOW; AND CECCOLI WAS THIRD LOW. ON THE TOTAL OF SCHEDULES I AND II, THE STANDING OF THE THREE LOWEST BIDDERS WAS THE SAME AS FOR SCHEDULE I ALONE.

BY LETTER DATED JUNE 10, 1966, CECCOLI WAS ADVISED BY THE CONTRACTING OFFICER AS FOLLOWS:

"THIS HAS REFERENCE TO YOUR BID SUBMITTED ON OUR INVITATION FOR BIDS NO. 425 COVERING APPROXIMATELY 5200 TONS OF TOWER STEEL. THE LOW BID ON SCHEDULE I OF THE INVITATION WAS SUBMITTED BY NICHIMEN CO., LTD.,TOKYO, JAPAN. THE NICHIMEN COMPANY QUALIFIED ITS BID BY ADDING UNACCEPTABLE CONDITIONS, THEREFORE ITS BID WAS FOUND TO BE NONRESPONSIVE. YOUR BID ON SCHEDULE I WAS THE SECOND LOWEST BID RECEIVED.

"BEFORE MAKING AWARD OF CONTRACT WE ARE REQUIRED TO DETERMINE WHETHER THE FIRM SUBMITTING A LOW BID IS RESPONSIBLE. IN ORDER TO QUALIFY AS RESPONSIBLE THE PROSPECTIVE CONTRACTOR MUST AMONG OTHER THINGS BE ABLE TO COMPLY WITH THE REQUIRED DELIVERY TIMES SPECIFIED IN THE SCHEDULE. PROSPECTIVE CONTRACTORS MUST HAVE A SATISFACTORY RECORD OF PERFORMANCE. CONSIDERATION MUST BE GIVEN TO CONTRACTS CURRENTLY IN PRODUCTION AS WELL AS PAST PERFORMANCE.

"IT IS OUR UNDERSTANDING THAT YOU ARE COMMITTED TO FABRICATE STEEL FOR THE LYNN TRADING CORPORATION ON CONTRACTS WE HAVE WITH THAT COMPANY FOR SOME 22,000 TONS OF TOWER STEEL. DELIVERY ON THE LYNN TRADING CORPORATION CONTRACTS IS BEHIND SCHEDULE, AND IT APPEARS THAT FABRICATION OF THE STEEL FOR ITS CONTRACTS WILL NOT BE COMPLETED BEFORE FABRICATION OF STEEL ON INVITATION 425 WOULD BE REQUIRED. IN VIEW OF THESE FACTS, I AM UNABLE TO DETERMINE IF AWARD WERE MADE TO YOU THAT YOU COULD MAKE DELIVERY AS REQUIRED FOR THIS PARTICULAR PROCUREMENT. THEREFORE, IT IS NECESSARY TO REJECT YOUR BID. AWARD HAS BEEN MADE TO THE SOCIETA ANONIMA ELETTRIFICAZIONE, P.A.'

IFB NO. 464, ISSUED MAY 20, 1966, AS AMENDED, WITH A BID OPENING DATE OF JUNE 16, COVERS THE PROCUREMENT OF APPROXIMATELY 9,100 TONS OF TOWER STEEL AND TOWER TESTS, SET FORTH IN 120 ITEMS, WHICH ARE GROUPED UNDER SCHEDULES I THROUGH VI. ON PAGE 13 OF THE IFB, BIDDERS ARE ADVISED THAT AWARD OF SCHEDULES I, II, III, AND VI WILL BE MADE AS A WHOLE TO ONE BIDDER, AND AWARD ON SCHEDULES IV AND V WILL BE MADE AS A WHOLE TO ONE BIDDER, EITHER F.O.B. DESTINATION OR F.O.B. BIDDER'S SHIPPING POINT. THE DELIVERY SCHEDULE ON PAGE 14 OF THE IFB CALLS FOR DELIVERY OF ALL ITEMS IN SCHEDULES I THROUGH V WITHIN PERIODS RANGING FROM 465 TO 585 DAYS, F.O.B. BIDDER'S SHIPPING POINT, OR FROM 485 TO 605 DAYS F.O.B. DESTINATION, AND THE TOWER TESTS UNDER SCHEDULE VI ARE REQUIRED TO START WITHIN 210 CALENDAR DAYS AFTER DATE OF AWARD BY THE GOVERNMENT.

ON JUNE 16, THE SIX BIDS RECEIVED UNDER IFB NO. 464 WERE OPENED. ONE BIDDER QUOTED ON SCHEDULES IV AND V ONLY; ANOTHER BIDDER QUOTED ON ALL SCHEDULES BUT SCHEDULE VI; AND FOUR BIDDERS QUOTED ON ALL SIX SCHEDULES. OF THE TOTAL BIDS SUBMITTED ON SCHEDULES I, II, III AND VI, THE THREE LOWEST ARE CECCOLI, LOW, NICHIMEN, SECOND LOW, AND SAE, THIRD LOW. SCHEDULES IV AND V COMBINED, THE THREE LOWEST BIDS ARE NICHIMEN, LOW, IWAI NEW YORK, INC., SECOND LOW, AND SAE, THIRD LOW. ON THE TOTAL OF ALL SIX SCHEDULES, THE THREE LOWEST BIDS ARE CECCOLI, LOW, NICHIMEN, SECOND LOW, AND SAE THIRD LOW.

IN YOUR TELEGRAM OF JUNE 20, YOU QUOTED A TELEGRAM WHICH YOU HAD SENT TO BPA, IN WHICH YOU STATED THAT CECCOLI'S PRESENT IMPROVED FACILITIES PERMIT AMPLE PRODUCTION OVER AND ABOVE ITS PRESENT COMMITMENTS, AND YOU REQUESTED AN OPPORTUNITY TO SUBMIT DATA PROVING CECCOLI'S ABILITY TO PERFORM ALL CONTRACTS, INCLUDING THE CONTRACT AWARDED UNDER IFB NO. 425 AS WELL AS THE CONTRACT TO BE AWARDED UNDER IFB NO. 464.

THE RECORD BEFORE OUR OFFICE INDICATES THAT YOU ADDRESSED TO THE CONTRACTING OFFICER ON JUNE 20 AND JULY 1 LETTERS REQUESTING RECONSIDERATION OF THE REJECTION OF CECCOLI'S BID, WHICH WERE ACCOMPANIED BY DOCUMENTATION SHOWING PRODUCTION ESTIMATES INDICATING THAT CECCOLI'S SUBCONTRACTS WITH LYNN TRADING CORPORATION (LYNN) WILL BE FULFILLED NO LATER THAN JANUARY 15, 1967. IN YOUR LETTERS, YOU CONTEND THAT CECCOLI'S PLANT AND FACILITIES ARE MORE THAN ADEQUATE TO FABRICATE THE STEEL REQUIRED UNDER THE TWO IFB'S IN QUESTION IN ADDITION TO THE STEEL REQUIRED UNDER ITS PRESENT SUBCONTRACTUAL COMMITMENTS TO LYNN. IN THIS CONNECTION, YOU CLAIM THAT CECCOLI'S PRESENT PLANT CAPACITY IS 2,000 TONS PER MONTH; THAT ADDITIONAL FACILITIES FOR THE PRODUCTION OF 400 TONS PER MONTH ARE PRESENTLY BEING CONSTRUCTED; THAT CECCOLI HAS FACILITIES TO GALVANIZE 1,300 TONS OF STEEL PER MONTH AND PLANS ADDITIONAL FACILITIES TO BE COMPLETED FEBRUARY 1, 1967, WHICH WILL PERMIT IT TO GALVANIZE AN ADDITIONAL 1,500 TONS PER MONTH.

REGARDING THE DELINQUENT STATUS OF THE SUBCONTRACTS WITH LYNN, YOU ATTRIBUTE ALL DELAYS TO LYNN. FURTHER, YOU CONTEND THAT SINCE CECCOLI HAS NO CONNECTION WITH LYNN OTHER THAN AS A SUBCONTRACTOR, LYNN'S DEFAULTS SHOULD NOT BE CONSIDERED IN A DETERMINATION WHETHER AWARDS SHOULD BE MADE TO CECCOLI.

THE RECORD FURTHER SHOWS THAT ON JULY 27 AND AUGUST 3, A MEMBER OF THE LAW FIRM OF SURREY, KARASIK, GOULD, AND GREENE, WASHINGTON, D.C., ALSO REPRESENTING CECCOLI, ACCOMPANIED BY AN OFFICIAL OF CECCOLI, WAS ACCORDED CONFERENCES WITH REPRESENTATIVES OF THE DEPARTMENT OF THE INTERIOR REGARDING THE MATTER OF CECCOLI'S QUALIFICATIONS FOR PERFORMING CONTRACTS UNDER THE TWO IFBS. SUBSEQUENT TO THE CONFERENCES, THERE WERE FORWARDED TO THE DEPARTMENT BY SAID ATTORNEYS CHARTS AND ADDITIONAL DATA PURPORTING TO SHOW THAT CECCOLI'S SUBCONTRACTS WITH LYNN WILL BE COMPLETED BY APRIL 1967 AND THAT FABRICATION OF THE STEEL REQUIRED UNDER IFB NO. 464 COULD BE COMPLETED BY DECEMBER 1967. INCLUDED IN THE ADDITIONAL DATA WERE A COPY OF A COMPLAINT FILED BY LYNN IN THE SUPREME COURT OF THE STATE OF NEW YORK SEEKING TO ENJOIN CECCOLI FROM SUBMITTING BIDS ON ANY BPA PROCUREMENT IN VIOLATION OF AN AGREEMENT BETWEEN LYNN AND CECCOLI AND A COPY OF CECCOLI'S REPLY REQUESTING DISMISSAL OF THE ACTION FOR WANT OF JURISDICTION.

IN A LETTER DATED AUGUST 8, ADDRESSED TO THE DEPARTMENT OF THE INTERIOR, FROM THE ABOVE-NAMED LAW FIRM, THERE ARE SET FORTH VARIOUS REASONS WHY AWARD OF A CONTRACT SHOULD BE MADE TO CECCOLI INCLUDING THE FACT THAT CECCOLI HAS HAD EIGHT MONTHS OF EXPERIENCE FABRICATING TOWER STEEL. IT IS CONTENDED, WITH RESPECT TO THE EFFECT OF ANY SUCH AWARD ON CECCOLI'S EXISTING SUBCONTRACTUAL OBLIGATIONS TO LYNN, THAT THE DELAYS WHICH WERE ENCOUNTERED UNDER THE SUBCONTRACTS WERE DUE TO LYNN'S INTERFERENCE WITH CECCOLI IN THE ACQUISITION OF STEEL, AND THAT SINCE CECCOLI WOULD BE ORDERING ITS OWN STEEL UNDER IFB NO. 464, UNDER WHICH THE LEAD TIME UNDER THE IFB IS MORE THAN ON THE EXISTING CONTRACTS, STEEL ACQUISITION WILL CREATE NO FORESEEABLE PROBLEMS, AND THAT, IN ANY EVENT, CECCOLI IS WILLING TO FURNISH A 100 PERCENT PERFORMANCE BOND SHOULD BPA SO REQUIRE.

IN A REPORT FORWARDED TO OUR OFFICE BY LETTER DATED AUGUST 9, THE DEPARTMENT OF THE INTERIOR STATES THAT DELIVERY BY CECCOLI ON THE THREE EXISTING SUBCONTRACTS WITH LYNN IS BEHIND SCHEDULE AND WILL BE FROM TWO TO TEN MONTHS LATE, ACCORDING TO AN ESTIMATE BY BPA ENGINEERS; THAT NOTWITHSTANDING CECCOLI CLAIMS TO HAVE AN AVERAGE PLANT CAPACITY OF 2,000 TONS PER MONTH, CECCOLI HAS ACHIEVED ONLY 1,250 TONS PER MONTH DURING PRODUCTION; AND, THAT IN THE OPINION OF BPA ENGINEERS WHO HAVE INSPECTED THE CECCOLI PLANT, A MORE REASONABLE ESTIMATE OF CECCOLI'S AVERAGE CAPACITY IS 1,500 TONS PER MONTH, A RATE OF PRODUCTION WHICH IS NOT SUFFICIENT FOR TIMELY DELIVERY OF THE STEEL REQUIRED UNDER EITHER IFB NO. 425 OR IFB NO. 464. IT IS FURTHER STATED THAT BASED ON THE JUDGMENT OF THE BPA ENGINEERS, THE CONTRACTING OFFICER HAS DETERMINED THAT CECCOLI DOES NOT AND WILL NOT HAVE PLANT CAPACITY SUFFICIENT TO ENSURE TIMELY DELIVERY OF THE STEEL REQUIRED FOR EITHER PROCUREMENT.

IN A STATEMENT DATED AUGUST 2, THE CONTRACTING OFFICER DIRECTS ATTENTION TO THE FACT THAT IFB NO. 464 REQUIRES THE FABRICATION AND DELIVERY OF ALMOST 75 PERCENT (6,100 TONS) OF THE REQUIRED STEEL WITHIN 485 DAYS, OR 120 DAYS BEFORE FINAL DELIVERY, AND THAT UNDER THE PRODUCTION PLAN SUBMITTED BY CECCOLI, ONLY ABOUT ONE-HALF OF THE REQUIRED STEEL (3,000 TONS) COULD BE PRODUCED WITHIN THE 485-DAY PERIOD. FURTHER, THE CONTRACTING OFFICER STATES THAT IN MAKING ITS PRODUCTION FORECAST, CECCOLI HAS APPARENTLY GIVEN INADEQUATE CONSIDERATION TO THE FOLLOWING FACTORS:

"1. POSSIBLE INTERFERENCE WITH THE PRESENT COMMITMENTS THROUGH LYNN.

"2. ADVERSE EFFECTS OF LABOR DIFFICULTIES ON PRODUCTION RATES. FREQUENT STRIKES RANGING IN DURATION FROM ONE HOUR UPWARD HAVE SEVERELY LIMITED PRODUCTION IN THE PAST AT CECCOLI AS WELL AS AT OTHER ITALIAN COMPANIES. DESPITE FREQUENT PAST ASSURANCES AS TO FUTURE LABOR PEACE, THE OCCURRENCE OF STRIKES HAS PERSISTED.

"3. THE START UP AND CLEAN UP PHASES OF CONTRACTS. CECCOLI'S PLANS ARE OPTIMISTIC AS COMPARED WITH ACTUAL PERFORMANCE BY CECCOLI (ON START UP) AND MANY OTHER FABRICATORS ON THE INITIAL AND FINAL PHASES OF CONTRACTS. TIME REQUIREMENTS IN THESE PHASES GENERALLY ARE LONG.

"4. DELIVERY PROBLEMS AFTER COMPLETION OF THE FABRICATION IN ITALY. INDICATIONS FROM THE FIRST SHIPLOAD IN PORTLAND ARE THAT A HIGHER THAN USUAL PERCENTAGE OF THE STEEL FABRICATED BY CECCOLI FOR LYNN ON THE EXISTING CONTRACTS WILL SUFFER EXCESSIVE SHIPPING DAMAGE BEFORE DELIVERY TO THE BPA RECEIVING YARDS. ADDITIONAL TIME WILL BE NEEDED BY THE CONTRACTOR TO REPLACE DAMAGED STEEL.

"5. THE AUGUST SHUTDOWN FOR VACATION. WE UNDERSTAND THAT THIS IS THE TRADITIONAL TIME TAKEN FOR THIS PURPOSE IN NORTHERN ITALY AND USUALLY RESULTS IN A COMPLETE PLANT SHUTDOWN FOR TWO TO THREE WEEKS.'

IN THE LIGHT OF THE STATEMENTS OF THE BPA ENGINEERS AND OF THE CONTRACTING OFFICER, THE DEPARTMENT MAKES THE FOLLOWING PERTINENT COMMENTS:

"IN REVIEWING THIS MATTER THE DEPARTMENT INCLINES TO THE VIEW THAT THEORETICAL CONTENTIONS OF FACILITATED PRODUCTION CAPABILITY CAN NEITHER BE POSITIVELY SUPPORTED NOR CONCLUSIVELY REBUTTED. THE POSITION OF THE BPA CONTRACTING OFFICER ON THE OTHER HAND, RESTS UPON AN ANALYSIS OF PRODUCTION ACTUALLY DEMONSTRATED BY CECCOLI AND THE ON SITE OBSERVATIONS OF BPA INSPECTORS. IN BRIEF, THERE HAS BEEN TO THIS POINT, NO DEMONSTRATION IN FACT THAT PRODUCTION IS AT A LEVEL WHICH WOULD PROVIDE REASONABLE CERTAINTY OF PERFORMANCE UNDER A NEW CONTRACT WITHOUT ADVERSE EFFECT UPON SUBCONTRACT PERFORMANCE OR VICE VERSA.

"IT IS FAIRLY OBVIOUS THAT IF AN AWARD WERE MADE ON THE SOLE BASIS OF THE OPTIMISTIC ASSUMPTIONS OF THE PROTESTOR AND IF THESE ASSUMPTIONS PROVED UNRELIABLE, THE CONSEQUENCES WOULD BE INTOLERABLE. DELIVERIES UNDER THE PRIME (LYNN) CONTRACT, IN RELATION TO WHICH CECCOLI IS THE DOMINANT SUBCONTRACTOR, ARE ALREADY SERIOUSLY BEHIND SCHEDULE. A NEW AWARD TO CECCOLI, AGAINST THE FACTUAL JUDGMENT OF THE CONTRACTING OFFICER, MIGHT BE CONSTRUED AS A DELIBERATE INTERFERENCE WITH THE LYNN CECCOLI COMMITMENT.'

REGARDING CECCOLI'S OFFER TO FURNISH AN ADEQUATE PERFORMANCE BOND ON ANY PRIME CONTRACT AWARDED IT, THE DEPARTMENT STATES THAT BPA'S CRITICAL NEED IS FOR ON-SCHEDULE DELIVERY OF MATERIALS AND THAT THE PROSPECT OF ECONOMIC INDEMNITY IN THE EVENT OF FAILURE OF DELIVERY WOULD NOT SATISFY SUCH NEED.

WITH REFERENCE TO THE LITIGATION WHICH IS PENDING IN THE COURTS OF THE STATE OF NEW YORK BETWEEN LYNN AND CECCOLI, THE DEPARTMENT NOTES THAT THE LITIGATION IS OF CONCERN TO THE DEPARTMENT BUT ACCORDS IT NO SPECIAL EMPHASIS. RATHER, THE DEPARTMENT STRESSES THE UNPROVEN PRODUCTIVE CAPABILITIES OF CECCOLI AND THE DEPARTMENT'S UNWILLINGNESS TO GAMBLE UPON CECCOLI'S SELF-SERVING STATEMENTS, WHICH ARE AT VARIANCE WITH EXPERIENCE DATA AND WHICH ALSO ARE INCONSISTENT WITH THE ENGINEERING JUDGMENT OF THE CONTRACTING AGENCY (BPA). ACCORDINGLY, IT IS THE POSITION OF THE DEPARTMENT THAT CECCOLI'S PROTEST SHOULD BE DENIED AND THAT BPA SHOULD BE AUTHORIZED TO MAKE AWARD UNDER IFB NO. 464 TO THE LOW RESPONSIVE BIDDER WHO IS FOUND QUALIFIED TO PERFORM IN ACCORDANCE WITH THE GOVERNMENT'S REQUIREMENTS. SECTION 303 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 253 (B), PROVIDES THAT CONTRACT AWARDS UNDER ADVERTISED PROCUREMENTS SHALL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.310-6 (A) PROVIDES THAT NO CONTRACT SHALL BE AWARDED TO ANY PERSON OR FIRM UNLESS THE CONTRACTING OFFICER HAS FIRST DETERMINED THAT SUCH PERSON OR FIRM IS RESPONSIBLE. FURTHER, ABILITY TO COMPLY WITH THE PROPOSED OR REQUIRED TIME OF DELIVERY OR PERFORMANCE SCHEDULE IS INCLUDED IN THE STANDARDS SET FORTH IN FPR 1-1.310-5 WHICH A PROSPECTIVE CONTRACTOR MUST MEET.

THE DETERMINATION OF THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED, AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR THE DETERMINATION, WE ARE NOT REQUIRED TO OBJECT TO THE DETERMINATION MADE BY THE ADMINISTRATIVE AGENCY. 37 COMP. GEN. 430, 435.

THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT. 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 OFFICIALS 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 SUCH REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING OFFICIALS. 39 COMP. GEN. 705, 711. IN THIS CASE, HOWEVER, IT MAY BE STATED THAT SINCE CECCOLI IS COMMITTED TO SUPPLY, AS SUBCONTRACTOR TO LYNN UNDER THREE OTHER BPA CONTRACTS, LARGE QUANTITIES OF THE SAME TYPE OF STEEL AS IS REQUIRED UNDER THE TWO IFBS IN QUESTION, BPA'S CONTRACTING OFFICER WOULD BE REMISS IF HE DID NOT CONSIDER SUCH COMMITMENTS IN MAKING HIS DETERMINATION REGARDING CECCOLI'S ABILITY TO FULFILL BPA'S ADDITIONAL REQUIREMENTS UNDER SUCH IFBS.

BASED ON THE REPORTED FACTS, IT IS OUR VIEW THAT THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE CONTRACTING OFFICER'S DETERMINATION THAT CECCOLI HAS NOT DEMONSTRATED ABILITY TO MEET THE PROCUREMENT REQUIREMENTS UNDER EITHER IFB NO. 425 OR IFB NO. 464. IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS TO QUESTION THE ACTION OF BPA IN REJECTING CECCOLI'S BID UNDER IFB NO. 425 AND MAKING THE AWARD TO SAE AS THE NEXT LOW, RESPONSIVE, RESPONSIBLE BIDDER. FOR THE SAME REASON WE FIND NO LEGAL BASIS TO OBJECT TO THE REJECTION OF CECCOLI'S BID UNDER IFB NO. 464, AND WE MUST THEREFORE CONCUR WITH THE RECOMMENDATION OF THE DEPARTMENT OF THE INTERIOR THAT THE AWARD UNDER IFB NO. 464 BE MADE TO THE LOW RESPONSIVE BIDDER THE DEPARTMENT HAS FOUND TO BE QUALIFIED TO PERFORM IN ACCORDANCE WITH THE GOVERNMENT'S REQUIREMENTS. ACCORDINGLY, YOUR PROTEST IS DENIED.

A COPY OF THIS DECISION IS BEING SENT TO THE LAW FIRM OF SURREY, KARASIK, GOULD AND GREENE.