B-161870, AUG. 17, 1967

B-161870: Aug 17, 1967

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

BIDDER WHO AS RESULT OF PRE AWARD SURVEY FOR MULTIYEAR PROCUREMENT OF CRANES WAS FOUND TO BE ABLE TO MEET SPECIFICATIONS AND DELIVERY EVEN THOUGH HE HAD RECORD OF DELINQUENCIES UNDER PRIOR CONTRACTS DUE MAINLY TO NECESSARY CLARIFICATION OF SPECIFICATIONS MAY NOT BE REGARDED AS BEING OTHER THAN RESPONSIBLE SINCE CONTRACTING OFFICE IS IN BEST POSITION TO ASSESS RESPONSIBILITY AND GAO WILL NOT SUPERIMPOSE OUR JUDGMENT ON THAT OF CONTRACTING OFFICER. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 22. REFERENCE IS ALSO MADE TO YOUR LETTER OF AUGUST 9. THE INVITATION WAS ISSUED ON MAY 27. FOUR RESPONSIVE BIDS WERE RECEIVED: SANDERS CRANES. WAS LOW BIDDER. HANSON MACHINERY COMPANY (A SUBSIDIARY OF PETTIBONE MULLIKEN CORPORATION) WAS SECOND LOW.

B-161870, AUG. 17, 1967

BIDDERS - RESPONSIBILITY - PRIOR UNSATISFACTORY SERVICE DECISION ON BEHALF OF GROVE MANUFACTURING CO. (HIGH BIDDER) AGAINST AWARD BY U.S. MOBILITY COMMAND TO HANSON MACHINERY CO. (2D LOW BIDDER) FOR WHEEL MOUNTED CRANES BECAUSE OF HANSON'S PRIOR UNSATISFACTORY PERFORMANCE. BIDDER WHO AS RESULT OF PRE AWARD SURVEY FOR MULTIYEAR PROCUREMENT OF CRANES WAS FOUND TO BE ABLE TO MEET SPECIFICATIONS AND DELIVERY EVEN THOUGH HE HAD RECORD OF DELINQUENCIES UNDER PRIOR CONTRACTS DUE MAINLY TO NECESSARY CLARIFICATION OF SPECIFICATIONS MAY NOT BE REGARDED AS BEING OTHER THAN RESPONSIBLE SINCE CONTRACTING OFFICE IS IN BEST POSITION TO ASSESS RESPONSIBILITY AND GAO WILL NOT SUPERIMPOSE OUR JUDGMENT ON THAT OF CONTRACTING OFFICER. RE REQUEST FOR PRE AWARD SURVEY REPORT IT MAY NOT BE RELEASED OUTSIDE GOVERNMENT, PAR 1-907, ASPR.

TO C AND M INDUSTRIAL ASSOCIATES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1967, AND TELEGRAM DATED JUNE 27, 1967, PROTESTING ON BEHALF OF THE GROVE MANUFACTURING COMPANY AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DAAK01-67-B-C621, ISSUED BY THE UNITED STATES MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI. REFERENCE IS ALSO MADE TO YOUR LETTER OF AUGUST 9, 1967, REQUESTING A COPY OF THE PREAWARD SURVEY REPORT.

THE INVITATION WAS ISSUED ON MAY 27, 1967, WITH MULTIYEAR PROCUREMENT FEATURES REQUESTING BIDS FOR FURNISHING 125 WHEEL MOUNTED CRANES UNDER ALTERNATE "A" (SINGLE YEAR) AND 305 CRANES UNDER ALTERNATE "B" (MULTIYEAR) WITH PROVISIONING TECHNICAL PUBLICATION AND MANUFACTURER'S CONTRACT FIELD SERVICES UNDER EACH ALTERNATE. FOUR RESPONSIVE BIDS WERE RECEIVED: SANDERS CRANES, INC., WAS LOW BIDDER; HANSON MACHINERY COMPANY (A SUBSIDIARY OF PETTIBONE MULLIKEN CORPORATION) WAS SECOND LOW; SCHIELD BANTAM DIVISION, KOEHRING COMPANY, WAS THIRD; AND GROVE MANUFACTURING COMPANY WAS HIGH BIDDER. PREAWARD SURVEYS WERE PERFORMED ON SANDERS CRANES, INC., AND HANSON MACHINERY COMPANY. SANDERS WAS DETERMINED TO BE NONRESPONSIBLE AND HANSON WAS DETERMINED TO BE RESPONSIBLE. AWARD OF THE CONTRACT WAS MADE TO HANSON ON JUNE 30, 1967, UNDER ALTERNATE "B" FOR $10,514,776.60.

YOU CONTEND THAT HANSON IS NOT A RESPONSIBLE CONTRACTOR AS REQUIRED BY THE PROVISIONS OF ASPR 1-903.1/II), (III). IN PARTICULAR, YOU ALLEGE THAT HANSON'S (PETTIBONE MULLIKEN) RECORD OF PERFORMANCE UNDER CURRENT CONTRACTS IS UNSATISFACTORY; THAT LIQUIDATED DAMAGES HAVE BEEN ASSESSED FOR LATE DELIVERIES UNDER ONE OF ITS CURRENT CONTRACTS; AND THAT, THEREFORE, IT DOES NOT APPEAR THAT HANSON CAN MEET THE DELIVERY REQUIREMENTS OF THE INSTANT CONTRACT.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT IN DETERMINING THE RESPONSIBILITY OF HANSON THE PREAWARD SURVEY TEAM TOOK INTO ACCOUNT THE RECORD OF DELINQUENCIES REFERRED TO BY YOU AND IT WAS DETERMINED THAT MOST OF THE DELINQUENCIES WERE DUE TO NECESSARY CLARIFICATION OF SPECIFICATIONS AND CONTRACT DETAILS WHICH WOULD BE EXCUSABLE DELAY. IN VIEW THEREOF, IT WAS CONCLUDED THAT HANSON HAD THE ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE OF THE INVITATION. ALTHOUGH LIQUIDATED DAMAGES WERE ASSESSED FOR DELAY IN DELIVERIES UNDER A PRIOR CONTRACT WE HAVE HELD THAT THE FAILURE TO PERFORM SATISFACTORILY UNDER A PRIOR CONTRACT IS NOT PER SE A SUFFICIENT BASIS FOR REGARDING THE CONTRACTOR AS IRRESPONSIBLE WITH RESPECT TO A LATER PROCUREMENT. 27 COMP. GEN. 621, 625.

WE AGREE WITH YOU, OF COURSE, THAT 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, HOWEVER, 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, WE WILL NOT SUPERIMPOSE OUR JUDGMENT ON THAT OF THE CONTRACTING OFFICER. 39 COMP. GEN. 705, 711. IN VIEW THEREOF, AND OF THE APPARENT SUBSTANTIAL BASIS FOR THE CONCLUSION OF THE CONTRACTING OFFICER AS TO THE RESPONSIBILITY OF HANSON, WE SEE NO LEGAL OR PROPER BASIS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO HANSON.

REGARDING YOUR REQUEST FOR THE PREAWARD SURVEY REPORT YOU ARE ADVISED THAT IT MAY NOT BE RELEASED OUTSIDE THE GOVERNMENT. SEE PARAGRAPH 1-907 OF THE ARMED SERVICES PROCUREMENT REGULATION.