B-161290, OCT. 11, 1967

B-161290, OCT. 11, 1967

BIDDERS - QUALIFICATIONS - "REGULAR" DEALER DECISION TO BERTSCH INTERNATIONAL CONCERNING PROTEST WHICH WAS SUBJECT OF COMP. GEN. DECISION OF SEPT. 14, 1967, RE MARINE CORPS PROCUREMENT. CONTRACTING OFFICER WHO DETERMINED THAT BIDDER DID NOT COME WITHIN DEFINITION OF "REGULAR EALER" AND WHO ACTED IN GOOD FAITH IN APPLICATION OF "REGULAR DEALER" TEST MUST HAVE DETERMINATION OF NONRESPONSIBILITY UPHELD AND SINCE SUCH DETERMINATION IS NOT DEPENDENT UPON BIDDER'S RELATIONSHIP WITH ANOTHER FIRM ALLEGATION IS IRRELEVANT TO DISPUTE.

TO BERTSCH INTERNATIONAL:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 25, 1967, AND ENCLOSURES CONCERNING OUR DECISION OF SEPTEMBER 14, 1967, TO YOU. YOUR LETTER ALSO REFERS TO A PROTEST BY YOUR FIRM WHICH IS PRESENTLY BEING CONSIDERED BY OUR OFFICE AND HAS BEEN ASSIGNED NUMBER B-162468. AS WE STATED IN OUR LETTER OF SEPTEMBER 22, 1967, WE WILL ADVISE YOU OF OUR DECISION IN THE LATTER CASE AFTER WE HAVE RECEIVED THE ADMINISTRATIVE REPORT.

WITH REGARD TO OUR DECISION OF SEPTEMBER 14, YOU QUESTION OUR CONCLUSION THAT ALTHOUGH THE CONTRACTING OFFICER ERRONEOUSLY APPLIED THE "REGULAR DEALER" TEST IN DETERMINING YOUR RESPONSIBILITY, THE RECORD INDICATED THAT HE ACTED IN GOOD FAITH. YOU CONTEND THAT THE RECORD CONTAINS EVIDENCE OF BAD FAITH. YOU STATE THAT YOU SUBMITTED DOCUMENTARY EVIDENCE WHICH SHOWS THAT THE FOLLOWING STATEMENTS OF THE SURVEY TEAM ARE FALSE: "-BIDDER HAS INDICATED THAT HE IS NOT AN...AGENT OF ANY MANUFACTURER OF THE BID ITEM.- "-HE HAS NOT FIRM WRITTEN AUTHORITY TO QUOTE A COMMITMENT OF A SUPPLIER OF WHOM HE HAS NO PAST HISTORY OF DELIVERY OR PREVIOUS BUSINESS RELATIONS.-" BEFORE CONSIDERING THE MERIT OF YOUR ARGUMENT, IT SHOULD BE NOTED THAT ONLY THE FIRST STATEMENT, WHICH INCIDENTALLY IS NOT ACCURATELY QUOTED BY YOU, WAS MADE BY THE SURVEY TEAM. THE SECOND STATEMENT IS FROM THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY QUOTED ON PAGE 2 OF OUR DECISION.

ALTHOUGH WE RECOGNIZED THERE WAS A DISPUTE AS TO YOUR BUSINESS RELATIONSHIP WITH ABCO, WE DID NOT DISCUSS THIS MATTER BECAUSE IT WAS NOT NECESSARY TO OUR DECISION. THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS BASED ON HIS FINDING THAT YOUR BUSINESS ORGANIZATION DID NOT COME WITHIN THE DEFINITION OF A "REGULAR DEALER," AS SET FORTH ON PAGE 3 OF OUR DECISION. SINCE YOUR STATUS AS A "REGULAR DEALER" IS NOT DEPENDENT UPON YOUR BUSINESS RELATIONSHIP WITH ABCO, WHETHER THE CONTRACTING OFFICER MADE AN ERRONEOUS DETERMINATION IN THIS REGARD IS THEREFORE IRRELEVANT. AS WAS STATED IN OUR DECISION, THE QUESTION PRESENTED BY YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN SUBMITTING YOUR PROPOSAL AND FOR ANTICIPATED PROFITS IS WHETHER THE CONTRACTING OFFICER ACTED IN GOOD FAITH IN ERRONEOUSLY APPLYING THE "REGULAR DEALER" TEST. SINCE THERE IS ABSOLUTELY NO EVIDENCE TO THE CONTRARY, WE CONCLUDED THAT HE DID ACT IN GOOD FAITH AND, THEREFORE, YOU WERE NOT ENTITLED TO ANY RECOVERY.

IN THE INTEREST OF CLARIFYING THE RECORD, WE BELIEVE SOMETHING SHOULD BE SAID CONCERNING YOUR ALLEGATION OF BAD FAITH. THE CHIEF OF THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, ANAHEIM, REPORTED TO THE COMMANDANT OF THE MARINE CORPS ON JUNE 9, 1967, THAT AT THE TIME OF THE PRE-AWARD SURVEY, A SPECIFIC REQUEST WAS MADE BY THE INDUSTRIAL SPECIALIST FOR ANY WRITTEN EVIDENCE OF YOUR RELATIONSHIP WITH ABCO AND HE WAS ADVISED THAT YOU WERE NOT AGENTS OR REPRESENTATIVES OR PAID EMPLOYEES OF ANY MANUFACTURER OF THE BID ITEM. HOWEVER, IT IS ACKNOWLEDGED THAT BY A LETTER DATED MARCH 9, 1967, THE SAME DAY THE SURVEY WAS CONDUCTED, YOU ADVISED THE QUALITY ASSURANCE TEAM WHERE THE ITEM WAS TO BE MANUFACTURED AND THAT YOU REPRESENTED THE MANUFACTURER. BASED ON THE FACT THAT YOU DID NOT STOCK THE ITEM, HAD NO EVIDENCE OF A COMMITMENT FROM A SUPPLIER, AND HAD NO RECORD OF PERFORMANCE, THE SURVEY TEAM RECOMMENDED NO AWARD ON MARCH 14. THE CONTRACTING OFFICER'S DETERMINATION WAS MADE ON MARCH 16 ON THE BASIS OF THIS REPORT. IT WAS NOT UNTIL MARCH 31, FOUR DAYS AFTER THE AWARD WAS MADE, THAT YOU PRESENTED A LETTER FROM ABCO DATED JANUARY 31 APPOINTING YOU A REPRESENTATIVE. IN THESE CIRCUMSTANCES, WE DO NOT BELIEVE EITHER THE SURVEY TEAM OR CONTRACTING OFFICER CAN BE CHARGED WITH BAD FAITH IN THE DECISIONS THEY MADE.