B-161339, B-161962, B-161968, NOV. 14, 1967

B-161339,B-161962,B-161968: Nov 14, 1967

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TO CONTINENTAL CHEMICAL CORPORATION: YOU HAVE PROTESTED AGAINST AWARD OF CONTRACTS TO BIDDERS OTHER THAN CONTINENTAL CHEMICAL CORPORATION UNDER INVITATIONS FOR BIDS (IFB) NOS. THESE PROTESTS ARE BEING CONSIDERED TOGETHER SINCE THE ISSUE FOR DETERMINATION IS THE SAME IN EACH INSTANCE. POLISHES AND SIMILAR ITEMS AND YOUR BID WAS LOW OR TIED FOR LOW ON A NUMBER OF ITEMS. THE CONTRACTING OFFICER IN EACH CASE CONCLUDED THAT HE COULD NOT MAKE THE REQUIRED AFFIRMATIVE DETERMINATION THAT YOUR FIRM WAS RESPONSIBLE. YOU MAINTAIN THAT THE ACTION OF THE CONTRACTING OFFICERS WAS ARBITRARY. THAT INCONSISTENT REASONS HAVE BEEN GIVEN FOR THE REJECTIONS. THAT YOU HAVE HAD NO QUALITY CONTROL PROBLEMS. THAT YOUR RECORD OF DELINQUENCIES IS NOT AS POOR AS STATED BY THE CONTRACTING OFFICER.

B-161339, B-161962, B-161968, NOV. 14, 1967

BIDDERS - RESPONSIBILITY - PRIOR UNSATISFACTORY PERFORMANCE DECISION DENYING PROTESTS OF CONTINENTAL CHEMICAL CORP. AGAINST REJECTION OF BIDS FOR DETERGENTS, CLEANING COMPOUNDS ETC. BY GSA ON BASIS OF NONRESPONSIBILITY. CONTRACTING OFFICER'S DETERMINATION BASED ON RECORD OF DELINQUENCIES THAT LOW BIDDER LACKED NECESSARY PERSONNEL AND EQUIPMENT MUST IN ABSENCE OF EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION BE UPHELD.

TO CONTINENTAL CHEMICAL CORPORATION:

YOU HAVE PROTESTED AGAINST AWARD OF CONTRACTS TO BIDDERS OTHER THAN CONTINENTAL CHEMICAL CORPORATION UNDER INVITATIONS FOR BIDS (IFB) NOS. CH- FT-649 AND 650 (B-161339), CH-FT-662 (B-161962) AND F/56234-TD (B 161968), ISSUED BY THE GENERAL SERVICES ADMINISTRATION. THESE PROTESTS ARE BEING CONSIDERED TOGETHER SINCE THE ISSUE FOR DETERMINATION IS THE SAME IN EACH INSTANCE.

THE INVITATIONS COVERED VARIOUS TYPES OF DETERGENTS, CLEANING COMPOUNDS, POLISHES AND SIMILAR ITEMS AND YOUR BID WAS LOW OR TIED FOR LOW ON A NUMBER OF ITEMS. BASED ON PLANT FACILITIES REPORTS INDICATING THAT YOUR FIRM LACKED NECESSARY TECHNICAL PERSONNEL AND ADEQUATE TEST EQUIPMENT, AND ON RECORDS OF POOR PRIOR PERFORMANCE, THE CONTRACTING OFFICER IN EACH CASE CONCLUDED THAT HE COULD NOT MAKE THE REQUIRED AFFIRMATIVE DETERMINATION THAT YOUR FIRM WAS RESPONSIBLE, AND, ACCORDINGLY, REJECTED YOUR BID.

YOU MAINTAIN THAT THE ACTION OF THE CONTRACTING OFFICERS WAS ARBITRARY; THAT INCONSISTENT REASONS HAVE BEEN GIVEN FOR THE REJECTIONS; THAT YOU HAVE HAD NO QUALITY CONTROL PROBLEMS; THAT YOUR RECORD OF DELINQUENCIES IS NOT AS POOR AS STATED BY THE CONTRACTING OFFICER; AND THAT IN THE CASE OF ONE PROCUREMENT, NO SURVEY WAS MADE OF YOUR FACILITIES.

THESE CONTENTIONS ARE SUBSTANTIALLY THE SAME AS THOSE ADVANCED IN YOUR PROTESTS WHICH WERE CONSIDERED IN OUR DECISIONS OF SEPTEMBER 25, 1967, B- 161339, AND NOVEMBER 2, 1967, B-161936. IN OUR DECISION OF SEPTEMBER 25, 1967, WE STATED:

"AS TO YOUR CONTENTION THAT REJECTIONS OF YOUR BIDS HAVE BEEN ON INCONSISTENT GROUNDS, WE BELIEVE THAT AN ANALYSIS OF THE REJECTIONS, ALTHOUGH COUCHED IN DIFFERENT LANGUAGE, ALL APPEAR TO HAVE A COMMON FACTOR --- A FAILURE IN THE AREA OF CONTRACT ADMINISTRATION TO MEET THOSE STANDARDS OF RESPONSIBILITY WHICH THE GOVERNMENT HAS A RIGHT TO EXPECT IN THOSE WITH WHOM IT CONTRACTS. THERE APPEARS LITTLE QUESTION THAT YOUR FIRM CAN PRODUCE A QUALIFIED PRODUCT, BUT THAT YOU ARE LACKING IN TEST CONTROLS AND PROCEDURES IN SCHEDULING OPERATIONS IN ORDER TO MEET CONTRACT SPECIFICATIONS AND DELIVERY DATES. THESE ARE MANAGEMENT PROBLEMS, AND APPEAR TO CONSTITUTE THE BASES FOR YOUR PAST DIFFICULTIES.'

THIS CONCLUSION IS PARTICULARLY APPLICABLE IN THE PRESENT MATTERS, AS IS THE FOLLOWING QUOTATION FROM THE SAME DECISION:

"THE OBJECT OF THE SEVERAL SURVEYS IS TO ASCERTAIN AND TECHNICALLY EVALUATE THE ESSENTIAL FINANCIAL, PRODUCTION AND MANAGEMENT CAPABILITIES OF THE BIDDER TO ENABLE THE CONTRACTING OFFICER TO DETERMINE FOR HIMSELF THE PROPRIETY OF AWARDING THE PROPOSED CONTRACT. THESE SURVEYS ENCOMPASS THE ENTIRE OPERATION OF THE COMPANY SURVEYED. THIS IS NECESSARY BECAUSE THE COMPANY IS AN INTEGRATED UNIT, AND THE CONSIDERATION OF THE MANUFACTURE OF ONE ITEM TO THE EXCLUSION OF OTHER ITEMS WOULD GIVE A DISTORTED VIEW OF THE ENTIRE PICTURE.

"IN ANY EVENT, OUR OFFICE HAS CONSISTENTLY HELD THAT THE QUESTION OF A BIDDER'S RESPONSIBILITY IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER. 38 COMP. GEN. 131, 33 ID. 549. THE RECORD PRESENTED IN THIS CASE ESTABLISHES THAT THE NEGATIVE DETERMINATION AS TO THE RESPONSIBILITY OF YOUR FIRM WAS MADE AFTER DUE CONSIDERATION OF THE INFORMATION DISCLOSED BY THE PRE-AWARD SURVEYS. IN THE ABSENCE OF EVIDENCE OF ARBITRARY OR CAPRICIOUS ACTION, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE NEGATIVE DETERMINATION OF RESPONSIBILITY.'

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS FOR QUESTIONING THE ACTION OF THE CONTRACTING OFFICERS, AND YOUR PROTESTS ARE DENIED.