B-159887, NOV. 28, 1966

B-159887: Nov 28, 1966

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GRANT: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11. PART WERE TO BE DELIVERED WITHIN 120 CALENDAR DAYS AFTER THE DATE OF THE AWARD. AN ADDITIONAL 30 DAYS WERE PROVIDED FOR DELIVERY OF THE BALANCE. IT WAS NOTED IN REVIEWING WORK PAPERS IT SUBMITTED IN CONNECTION WITH AN ERROR IT MADE IN FIGURING ITS BID PRICE THAT THE PUMP SUPPLIER'S QUOTATION PROVIDED A LONGER DELIVERY SCHEDULE THAN THE INVITATION REQUIRED. ITS BID WAS THEREFORE RESPONSIVE. THE QUESTION WHETHER UMC WILL BE ABLE TO MEET THE COMMITMENT IT UNDERTOOK IN ITS BID IS A MATTER OF RESPONSIBILITY. ONE OF THE FACTORS IN DETERMINING THE RESPONSIBILITY OF A BIDDER IS HIS APPARENT ABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS SET OUT IN THE INVITATION.

B-159887, NOV. 28, 1966

TO MR. JACK F. GARDNER, MR. MARTIN D. GRANT:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1966, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE AWARD OF A CONTRACT UNDER ARMY INVITATION FOR BIDS NO. AMC (W/-11-070-66-554 TO UMC ELECTRONICS COMPANY ON BEHALF OF YOUR CLIENT, WRIGHT TOOL COMPANY.

THE INVITATION PROVIDED FOR THE DELIVERY OF 676 OIL PUMP KITS FOR HYDRAULIC RECOILS. PART WERE TO BE DELIVERED WITHIN 120 CALENDAR DAYS AFTER THE DATE OF THE AWARD. AN ADDITIONAL 30 DAYS WERE PROVIDED FOR DELIVERY OF THE BALANCE.

BY LETTER DATED MAY 12, 1966, YOUR CLIENT INFORMED THE PROCURING AGENCY THAT IN VIEW OF THE LONG LEAD TIME REQUIRED TO PURCHASE THE HYDRAULIC OIL PUMPS FROM THE PUMP SUPPLIER, ONLY THOSE COMPETITORS SUCH AS WRIGHT, WHO HAD TAKEN ACTION IN ADVANCE TO ORDER THE PUMPS, COULD BE RESPONSIVE TO THE GOVERNMENT'S REQUIRED DELIVERY SCHEDULE. HOWEVER, WHILE UMC HAD NOT TAKEN ANY EXCEPTION TO THE DELIVERY SCHEDULE IN THE INVITATION, IT WAS NOTED IN REVIEWING WORK PAPERS IT SUBMITTED IN CONNECTION WITH AN ERROR IT MADE IN FIGURING ITS BID PRICE THAT THE PUMP SUPPLIER'S QUOTATION PROVIDED A LONGER DELIVERY SCHEDULE THAN THE INVITATION REQUIRED. IN LIGHT OF THIS APPARENT DISCREPANCY, THE PURCHASING AGENT REPRESENTING THE CONTRACTING OFFICER COMMUNICATED WITH THE PRESIDENT OF UMC WHO ADVISED THAT THE COMPANY ENGINEERS HAD MADE INQUIRY OF THE PUMP SUPPLIER AS TO THE DELIVERY AND HAD BEEN ASSURED THAT, DESPITE THE DELIVERY STATED IN THE QUOTATION, THE PUMPS WOULD BE FURNISHED IN SUFFICIENT TIME TO ENABLE UMC TO MEET THE REQUIRED DELIVERY SCHEDULE. BASED UPON THIS INFORMATION, THE GOOD PAST PERFORMANCE RECORD OF THE COMPANY, AND TWO RECENT SATISFACTORY PREAWARD SURVEYS ON SUBSTANTIAL PROCUREMENTS, THE CONTRACTING OFFICER AWARDED THE CONTRACT TO UMC.

UMC TOOK NO EXCEPTION IN ITS BID TO THE GOVERNMENT'S DELIVERY SCHEDULE. ITS BID WAS THEREFORE RESPONSIVE. THE QUESTION WHETHER UMC WILL BE ABLE TO MEET THE COMMITMENT IT UNDERTOOK IN ITS BID IS A MATTER OF RESPONSIBILITY. IN THAT CONNECTION, OUR OFFICE STATED IN 39 COMP. GEN. 705, 711:

"CLEARLY, ONE OF THE FACTORS IN DETERMINING THE RESPONSIBILITY OF A BIDDER IS HIS APPARENT ABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS SET OUT IN THE INVITATION. THE DETERMINATION OF THE PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED, AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS THEREFOR, THERE IS NO BASIS UPON WHICH WE MAY OBJECT. 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 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 OF THE FOREGOING, AND SINCE IT IS NOT APPARENT THAT THE CONTRACTING OFFICER ACTED IN OTHER THAN GOOD FAITH OR WITHOUT A REASONABLE BASIS THEREFOR IN MAKING A DETERMINATION THAT UMC WAS RESPONSIBLE, OUR OFFICE WOULD NOT BE JUSTIFIED IN QUESTIONING THE AWARD.