B-162175, AUG. 22, 1967

B-162175: Aug 22, 1967

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A LOW OFFEROR WHO WAS NOT A MANUFACTURER AT TIME PROPOSALS WERE REQUESTED BUT WHO WAS SHOWN BY PREAWARD SURVEY TO HAVE MANUFACTURING CAPABILITIES MAY HAVE DETERMINATION OF RESPONSIBILITY UPHELD. WITH RESPECT TO CONTENTION THAT MANUALS COULD HAVE BEEN OMITTED FROM REQUIREMENTS. THE REQUIREMENTS ARE BEING REVISED BUT THE REVISION HAS NOT REACHED A POINT WHEN A PRICE ADVANTAGE COULD BE GAINED BY ELIMINATING THE MANUALS. TO REX CHAINBELT INC.: WE ARE IN RECEIPT OF YOUR LETTERS OF JUNE 26 AND JUNE 28. DAAK01-67-R-1442 WAS ISSUED ON MAY 3. THE PROCUREMENT WAS TO BE NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (2). AN AMENDMENT WAS ISSUED ON MAY 10. A SECOND AMENDMENT WAS ISSUED ON MAY 17. OFFERS WERE RECEIVED FROM YOUR FIRM.

B-162175, AUG. 22, 1967

BIDDERS - RESPONSIBILITY - PERFORMANCE CAPABILITY DECISION TO REX CHAINBELT, INC., PROTESTING AWARD TO FWD CORPORATION FOR ROTARY MIXERS UNDER NEGOTIATED PROCUREMENT BY ARMY MOBILITY COMMAND. A LOW OFFEROR WHO WAS NOT A MANUFACTURER AT TIME PROPOSALS WERE REQUESTED BUT WHO WAS SHOWN BY PREAWARD SURVEY TO HAVE MANUFACTURING CAPABILITIES MAY HAVE DETERMINATION OF RESPONSIBILITY UPHELD. WITH RESPECT TO CONTENTION THAT MANUALS COULD HAVE BEEN OMITTED FROM REQUIREMENTS, THE REQUIREMENTS ARE BEING REVISED BUT THE REVISION HAS NOT REACHED A POINT WHEN A PRICE ADVANTAGE COULD BE GAINED BY ELIMINATING THE MANUALS. FOR THESE REASONS PROTEST MUST BE DENIED.

TO REX CHAINBELT INC.:

WE ARE IN RECEIPT OF YOUR LETTERS OF JUNE 26 AND JUNE 28, 1967, ADDRESSED TO THE U.S. ARMY MOBILITY COMMAND, AND FORWARDED TO OUR OFFICE FOR CONSIDERATION AS A FORMAL PROTEST AGAINST THE AWARD OF CONTRACT NO. DAAK01 -67-C-D516 TO THE FWD CORPORATION.

REQUEST FOR PROPOSALS (RFP) NO. DAAK01-67-R-1442 WAS ISSUED ON MAY 3, 1967, TO 32 PROSPECTIVE CONTRACTORS FOR 86 ROTARY TILLER MIXERS, INCLUDING, AMONG OTHER ANCILLARY ITEMS, MANUALS RELATING TO THE MIXERS. BECAUSE OF THE URGENT NEED FOR THE ITEMS, THE PROCUREMENT WAS TO BE NEGOTIATED PURSUANT TO 10 U.S.C. 2304 (A) (2). AN AMENDMENT WAS ISSUED ON MAY 10, 1967, INCORPORATING CHANGES IN THE SPECIFICATIONS AND A CHANGE IN THE REQUIREMENTS FOR MANUALS. A SECOND AMENDMENT WAS ISSUED ON MAY 17, REDUCING THE QUANTITY OF MIXERS FROM 86 EACH TO 57 EACH AND EXTENDING THE CLOSING DATE FOR RECEIPT OF OFFERS TO MAY 26, 1967. OFFERS WERE RECEIVED FROM YOUR FIRM, THE FWD CORPORATION; BROS, INCORPORATED; AND BUFFALO- SPRINGFIELD DIVISION, KOEHRING COMPANY. NEGOTIATIONS WERE CONDUCTED WITH ALL FOUR OFFERORS. ON JUNE 9, 1967, OFFERORS WERE ADVISED THAT NEGOTIATIONS WOULD CLOSE ON JUNE 14, 1967, AND THAT REVISED OFFERS WOULD BE ACCEPTABLE UNTIL THAT TIME. ALL OFFERORS SUBMITTED REVISED OFFERS. THE FWD CORPORATION WAS DETERMINED TO BE THE LOWEST OFFEROR ON AN OVERALL EVALUATION BASIS AND, THEREFORE, THE CONTRACT WAS AWARDED TO IT ON JUNE 20, 1967, AFTER A DETERMINATION OF RESPONSIBILITY AND A FAVORABLE PREAWARD SURVEY.

IN YOUR LETTERS OF JUNE 26 AND JUNE 28, 1967, YOU PROTEST AGAINST THE AWARD MADE TO FWD CORPORATION ON FOUR GROUNDS. FIRST, YOU CONTEND THAT FWD IS NOT A MANUFACTURER OF THE ITEM WHILE YOUR FIRM HAS DEVELOPED A SUCCESSFUL COMMERCIAL UNIT IN USE BY HUNDREDS OF CONTRACTORS. YOU CLAIM THAT THERE IS SUFFICIENT ESTABLISHED COMPETITION MAKING IT UNNECESSARY TO "SUBSIDIZE AN ADDITIONAL COMPETITIVE MANUFACTURER.' YOU CLAIM THAT THE PRICE DIFFERENTIAL IS INSUFFICIENT FOR THE GOVERNMENT TO UNDERGO UNNECESSARY RISKS ON PERFORMANCE AND TO ADD AN ADDITIONAL MANUFACTURERS UNIT TO THE SUPPLY SYSTEM. LASTLY, YOU CONTEND THAT A PRICE DIFFERENTIAL OF $5,141.50 COULD BE TURNED INTO A PRICE ADVANTAGE OF $18,000, IF YOUR OFFER WERE ACCEPTED SINCE THE COST OF TRAINING AND OVERHAUL AND MODERNIZATION MANUALS COULD HAVE BEEN OMITTED FROM THE PROCUREMENT.

IT IS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO PROTECT THE INTERESTS OF THE GOVERNMENT, AS TO PRICE AND OTHER FACTORS. TO THIS END, PARAGRAPH 1-300.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT ALL PROCUREMENTS, WHETHER BY FORMAL ADVERTISING OR BY NEGOTIATION, SHALL BE MADE ON A COMPETITIVE BASIS TO THE MAXIMUM PRACTICABLE EXTENT. ALSO, PARAGRAPH 3-101 OF ASPR PROVIDES THAT WHENEVER SUPPLIES ARE TO BE PROCURED BY NEGOTIATION, PRICE QUOTATIONS SHALL BE SOLICITED FROM THE MAXIMUM NUMBER OF QUALIFIED SOURCES. THEREFORE, THE FACT THAT FWD CORPORATION WAS NOT A REGULAR MANUFACTURER OF THE ITEM AT THE TIME PROPOSALS WERE REQUESTED IS IMMATERIAL; WHAT IS MATERIAL IS THE BASIC ABILITY AND COMPETENCY OF FWD TO PRODUCE THE MIXERS IN ACCORDANCE WITH THE SPECIFICATIONS. A PREAWARD SURVEY TEAM REVIEWED THE FACILITIES OF FWD AND ITS SUPPLIER, WAUSAU IRON WORKS, AND FOUND THEM BOTH RESPONSIBLE AND RESPONSIVE TO THE GOVERNMENT'S REQUIREMENTS. THE FACT THAT FWD HAD NEVER PRODUCED MIXERS BEFORE WAS GIVEN CAREFUL CONSIDERATION AND FOUND TO BE IRRELEVANT IN VIEW OF ITS MANUFACTURING CAPABILITIES. THE DETERMINATION OF THE QUALIFICATIONS OF A PROPOSED CONTRACTOR IS PRIMARILY THE FUNCTION OF THE CONTRACTING OFFICER AND, IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR THE DETERMINATION, WE INTERPOSE NO OBJECTION TO SUCH DETERMINATION. SEE 17 COMP. GEN. 554; 45 ID. 357, 363.

PARAGRAPH 1-1201 (A) OF ASPR PROVIDES THAT PURCHASE DESCRIPTIONS SHALL STATE ONLY THE ACTUAL MINIMUM NEEDS OF THE GOVERNMENT AND DESCRIBE THE ITEMS IN A MANNER WHICH WILL ENCOURAGE MAXIMUM COMPETITION AND ELIMINATE RESTRICTIVE FEATURES THAT MIGHT LIMIT ACCEPTABLE OFFERS TO ONE SUPPLIER'S PRODUCT. THIS PROCUREMENT CONFORMED TO THAT REQUIREMENT BY INCREASING THE NUMBER OF AVAILABLE SUPPLIERS FOR ROTARY TILLER MIXERS.

AS TO YOUR LAST CONTENTION, WE HAVE BEEN INFORMED THAT THE MANUALS CONFORMING TO ARMY REQUIREMENTS WERE NECESSARY ITEMS OF THIS PROCUREMENT. WE HAVE ALSO BEEN INFORMED THAT YOUR PREVIOUS CONTRACT FOR MANUALS (NO. DA -23-195-AMC-01066/T) ( WAS AMENDED TO RELAX THE REQUIREMENTS FOR MANUALS FROM THE MILITARY REQUIREMENTS TO COMMERCIAL REQUIREMENTS. THIS WAS DONE IN ORDER TO EXPEDITE DELIVERY OF MANUALS UNDER THAT CONTRACT. THE COMMERCIAL MANUALS FURNISHED UNDER THAT CONTRACT ARE NOW BEING REVISED TO MEET THE MILITARY REQUIREMENTS OF THE DEPARTMENT OF THE ARMY. THE PROCESS OF REVISION HAS NOT YET REACHED THE POINT WHERE A PRICE ADVANTAGE COULD BE GAINED BY ELIMINATING THE REQUIREMENT FOR SUCH MANUALS. FURTHERMORE, THE RFP CONTAINED A MANDATORY REQUIREMENT FOR MILITARY-TYPE MANUALS AND ALL OFFERORS WERE OBLIGED TO QUOTE PRICES ON THIS TYPE OF MANUAL. EVALUATION OF THE OFFERS WAS MADE ON THIS BASIS.

FOR THE REASONS STATED, WE FIND NO BASIS TO QUESTION THE VALIDITY OF THE AWARD MADE TO FWD AND YOUR PROTEST IS THEREFORE DENIED.