B-162109, SEP. 8, 1967

B-162109: Sep 8, 1967

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BIDDER WHO AS RESULT OF PREAWARD SURVEY WAS DETERMINED TO LACK EXPERIENCE. SKILL TO PRODUCE ACCEPTABLE ITEMS IN QUANTITIES REQUIRED MUST HAVE PROTEST DENIED UNDER LONG-STANDING RULE THAT DETERMINATION OF QUALIFICATIONS OF BIDDER IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS FOR DETERMINATION. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 20. YOU CONTEND THAT YOU WERE THE LOW BIDDER FOR 10. 000 COATS AND THAT THERE HAS BEEN DELIBERATE DISCRIMINATION AGAINST YOUR COMPANY IN FAVOR OF OTHER FIRMS WHO HAVE RECEIVED AWARDS AT HIGHER PRICES. DELIVERIES ARE TO BE MADE IN SEVEN MONTHLY INCREMENTS.

B-162109, SEP. 8, 1967

BIDDERS - RESPONSIBILITY - PREAWARD SURVEY DECISION TO LAURA INDUSTRIES, INC., CONCERNING PROTEST AGAINST REJECTION OF BID FOR COATS FOR DEFENSE SUPPLY AGENCY. BIDDER WHO AS RESULT OF PREAWARD SURVEY WAS DETERMINED TO LACK EXPERIENCE, PERSONNEL, AND SKILL TO PRODUCE ACCEPTABLE ITEMS IN QUANTITIES REQUIRED MUST HAVE PROTEST DENIED UNDER LONG-STANDING RULE THAT DETERMINATION OF QUALIFICATIONS OF BIDDER IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS FOR DETERMINATION, NO OBJECTION CAN BE MADE. 38 COMP. GEN. 248.

TO LAURA INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 20, 1967, PROTESTING AGAINST THE FAILURE OF THE DEFENSE SUPPLY AGENCY TO AWARD A CONTRACT TO YOUR COMPANY FOR 10,000 COATS UNDER INVITATION FOR BIDS NO. DSA100-67-B- 2048. YOU CONTEND THAT YOU WERE THE LOW BIDDER FOR 10,000 COATS AND THAT THERE HAS BEEN DELIBERATE DISCRIMINATION AGAINST YOUR COMPANY IN FAVOR OF OTHER FIRMS WHO HAVE RECEIVED AWARDS AT HIGHER PRICES.

THE INVITATION DATED MAY 5, 1967, REQUESTED BIDS FOR THE MANUFACTURE AND DELIVERY, F.O.B. VARIOUS DESTINATIONS, OF 634,995 MEN'S POLYESTER/WOOL, TROPICAL COATS, AG-344. UNDER THE INVITATION, DELIVERIES ARE TO BE MADE IN SEVEN MONTHLY INCREMENTS. THE FIRST MONTHLY DELIVERY IS DUE 135 DAYS AFTER AWARD. FORTY-FIVE BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AND THE PRICES RECEIVED RANGE FROM $25.86 TO $39.89, EXCLUSIVE OF DISCOUNT. ALL BIDDERS SUBMITTED BIDS OF PARTIAL QUANTITIES EXCEPT CALIFORNIA GIRLSWEAR, INC., COOLIDGE, ARIZONA, WHICH BID $33 PER UNIT FOR THE ENTIRE QUANTITY. YOU BID DATED MAY 10, 1967, AS AMENDED BY TELEGRAM DATED MAY 25, 1967, SHOWS A BID PRICE AS FOLLOWS:

10,000 EACH - $27.72

(NEXT) 20,000 EACH - 35.55 (OR NEXT) 40,000 EACH - 34.40

MINIMUM QUANTITY - 10,000 EACH - (OR 30,000, OR 35,000)

MAXIMUM QUANTITY - 50,000 EACH

SINCE YOUR BID WAS WITHIN THE ZONE OF CONSIDERATION, THE CHIEF, DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), BIRMINGHAM, ALABAMA, WAS REQUESTED, UNDER DATE OF JUNE 6, 1967, TO SURVEY YOUR FACILITIES. THE PREAWARD SURVEY REPORT INDICATES THAT YOUR COMPANY DID NOT HAVE SUFFICIENT EXPERIENCED PERSONNEL TO MEET THE FIRST AND SECOND DELIVERY INCREMENTS; THAT IT LACKS THE SKILL NEEDED TO PRODUCE THE BID ITEM; AND THAT INTENSIVE TRAINING OF SUPERVISORY AND PRODUCTION PERSONNEL IS REQUIRED BEFORE YOUR COMPANY CAN PRODUCE ACCEPTABLE ITEMS IN THE QUANTITIES REQUIRED. ACCORDING TO THE PREAWARD SURVEY DEALING WITH PRODUCTION CAPABILITY, YOUR COMPANY WOULD HAVE BEEN UNABLE TO DELIVER ANY OF THE 800 ITEMS REQUIRED BY THE FIRST DELIVERY DATE. OF THE 2,100 CUMULATIVE UNITS REQUIRED FOR THE FIRST AND SECOND DELIVERIES, YOUR FIRM WOULD HAVE BEEN ABLE TO DELIVER ONLY 128 UNITS.

IN ADDITION TO THE NO AWARD RECOMMENDATION OF THE SURVEYORS, PART V, MONITOR REPORT OF THE PREAWARD SURVEY STATES AS FOLLOWS:

"PRODUCTION REPORT, PART I, INDICATES DEFICIENCIES IN PRODUCTION CAPABILITY AND TRAINED LABOR. THE CONTRACTOR'S PLAN FOR CORRECTING THESE DEFICIENCIES IS ACCEPTABLE BUT INADEQUATE FOR TIMELINESS IN MEETING THE REQUIRED DELIVERY SCHEDULE. THEREFORE, AWARD IS NOT RECOMMENDED.' AFTER EVALUATION OF THE PREAWARD SURVEY AND THE UNANIMOUS RECOMMENDATION OF NO AWARD, THE CONTRACTING OFFICER CONCURRED THEREIN. CONSEQUENTLY, YOUR BID WAS NOT CONSIDERED IN THE EVALUATION OF BIDS. SUBSEQUENTLY, AWARDS WERE MADE ON JULY 6 AND AUGUST 8, 1967.

IT LONG HAS BEEN AN ESTABLISHED RULE OF OUR OFFICE THAT THE DETERMINATION OF THE QUALIFICATIONS OF A BIDDER IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY, AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS FOR THE DETERMINATION, WE WILL NOT OBJECT TO THE DETERMINATION AS MADE. WE BELIEVE THAT ON THE RECORD BEFORE US THERE WAS A SUBSTANTIAL BASIS FOR REJECTING YOUR BID. IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS TO DISTURB THE AWARD MADE UNDER INVITATION FOR BIDS NO. DSA100-67-B-2048. 38 COMP. GEN. 248.