B-162888, JAN 4, 1968

B-162888, JAN 4, 1968

BIDDERS - RESPONSIBILITY - PERFORMANCE CAPABILITY DECISION TO JAMES R. DUNLOP, INC., SECOND LOW BIDDER, FOR FURNISHING PHOTOGRAPHIC SERVICES TO NASA PROTESTING RESPONSIBILITY OF LOW BIDDER MOTAL CUSTOM DARKROOMS FOR TOTAL SMALL BUSINESS SET ASIDE PROCUREMENT. DETERMINATION BY CONTRACTING OFFICER AFTER PREAWARD SURVEY MADE 10 DAYS AFTER BID OPENING THAT LOW BIDDER IS RESPONSIBLE, AND THAT HIS FACILITIES WERE SATISFACTORY WILL NOT BE QUESTIONED IN ABSENCE OF EVIDENCE OF CAPRICIOUS OF ARBITRARY ACTION. ALLEGATION THAT FAILURE TO INSPECT LOW BIDDER'S FACILITIES WITHIN 2 OR 3 DAYS AFTER BID OPENING WAS INDICATIVE OF FAVORITISM IS WITHOUT MERIT SINCE THERE IS NO INVITATION OR REGULATORY REQUIREMENT THAT SUCCESSFUL BIDDER HAVE NECESSARY EQUIPMENT AND FACILITIES BY DATE OF BID OPENING. REGULATIONS GOVERNING RESPONSIBILITY PROVIDE THAT MINIMUM GENERAL STANDARDS OF RESPONSIBILITY MAY BE SATISFIED BY A BIDDER'S ABILITY TO OBTAIN THE EQUIPMENT AND BE ABLE TO PERFORM AT THE REQUIRED TIME.

TO JAMES R. DUNLOP, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 8 AND LETTER OF NOVEMBER 9, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE ANTICIPATED AWARD OF A CONTRACT TO MOTAL CUSTOM DARKROOMS UNDER INVITATION FOR BIDS NO. S-53343/633, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA), GODDARD SPACE FLIGHT CENTER (GSFC), GREENBELT, MARYLAND.

THE INVITATION SOLICITED BIDS FROM 17 PROSPECTIVE BIDDERS, ON A TOTAL SMALL BUSINESS SET-ASIDE BASIS, FOR THE FURNISHING OF SERVICES, FACILITIES AND MATERIALS AT AN "OFF-SITE" STILL PHOTOGRAPHIC LABORATORY (PHOTOLAB).

ARTICLE 4 OF THE INVITATION ENTITLED "SCHEDULE OF RATES" DESCRIBED THE 62 SEPARATE PHOTOGRAPHIC SERVICES TO BE PERFORMED BY THE CONTRACTOR AND REQUESTED THAT THE RESPONDING BIDDERS INDICATE THEREIN THE PRICE FOR EACH OPERATION IN TERMS OF A SINGLE UNIT AND IN SEVERAL INCREMENTAL AMOUNTS. THE FOLLOWING BIDS WERE OPENED ON OCTOBER 20, 1967:

ESTIMATED

BIDDER TOTAL PRICE

MOTAL CUSTOM DARKROOMS $108,012.30

JAMES R. DUNLOP, INC 139,788.74

ROBERT H. MURRAY &

ASSOC., INC. 147,062.17

B/L LABS., INC. 170,081.96

CREATIVE ART STUDIOS 225,731.26

BY LETTER OF NOVEMBER 9, 1967, YOU ALLEGED THAT THE LOW BIDDER, MOTAL, IS NOT RESPONSIBLE AND THEREFORE IS NOT ENTITLED TO AN AWARD UNDER THE INVITATION. SPECIFICALLY YOU ALLEGED THAT (1) MOTAL HAD NO "LOCAL" FACILITIES, AS REQUIRED BY THE INVITATION, AT THE TIME OF BID OPENING AND FOR A CONSIDERABLE TIME THEREAFTER; (2) MOTAL CANNOT POSSIBLY MEET THE QUALITY AND QUANTITY PRODUCTION REQUIREMENTS OF THE INVITATION BECAUSE IT DOES NOT HAVE THE REQUISITE SPACE, TECHNICAL EQUIPMENT AND QUALIFIED STAFF; AND (3) BECAUSE OF THE NATURE AND DESIGN OF THE PREMISES OCCUPIED BY MOTAL SUBSEQUENT TO BID OPENING, THE GOVERNMENT PROPERTY STORED THEREIN DURING THE COURSE OF THE CONTRACT WOULD NOT BE SAFE AND SECURE.

IN SUPPORT OF YOUR ALLEGATION THAT MOTAL DID NOT HAVE THE NECESSARY FACILITIES TO PERFORM THE CONTRACT AT THE TIME OF BID OPENING, YOU SUBMITTED FOUR PHOTOGRAPHS TAKEN APPROXIMATELY 5 HOURS AFTER BID OPENING, WHICH CLEARLY SHOW THE PREMISES LISTED BY MOTAL AS THE LOCATION OF ITS LABORATORY, TO BE OCCUPIED BY WHAT YOU DESCRIBE AS A "SHEET METAL SHOP," AND COMPLETELY DEVOID OF ANY APPEARANCE AS A PHOTOLAB. YOU ALLEGED FURTHER THAT 6 DAYS AFTER BID OPENING A REPRESENTATIVE OF YOUR FIRM AGAIN VISITED THE LOCATION AND REPORTED THAT SEVERAL BOXES OF PHOTOGRAPHIC EQUIPMENT HAD BEEN MOVED INTO THE PREMISES, BUT THAT NO MODIFICATIONS HAD BEEN MADE TO CONVERT THE BUILDING INTO A PHOTOLAB.

INSOFAR AS THE PRINCIPAL ISSUES OF YOUR PROTEST RELATE SOLELY TO THE ISSUE OF THE RESPONSIBILITY OF THE LOW BIDDER TO PERFORM THE SUBJECT CONTRACT, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF NASA PROCUREMENT REGULATION (PR) 1.902, WHICH STATES IN PART THAT "CONTRACTS SHALL BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. A RESPONSIBLE PROSPECTIVE CONTRACTOR IS ONE WHO MEETS THE MINIMUM STANDARDS SET FORTH IN 1.903-1." THE CITED NASA PR PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"GENERAL STANDARDS. A PROSPECTIVE CONTRACTOR MUST MEET THE FOLLOWING MINIMUM STANDARDS AS THEY RELATE TO THE PARTICULAR PROCUREMENT UNDER CONSIDERATION:

"(VII) HAVE THE NECESSARY PRODUCTION, CONSTRUCTION, AND TECHNICAL EQUIPMENT AND FACILITIES, OR THE ABILITY TO OBTAIN THEM. ***".

THE RECORD INDICATES THAT SUBSEQUENT TO BID OPENING A PREAWARD SURVEY WAS CONDUCTED, IN ACCORDANCE WITH NASA PR 1.905-4, OF THE LOW BIDDER'S FACILITIES AND CAPABILITIES TO DETERMINE WHETHER SUCH BIDDER HAD THE REQUISITE RESPONSIBILITY TO PERFORM THE RESULTING CONTRACT. WE ARE ADVISED IN THIS REGARD THAT ON OCTOBER 30, 1967, 10 DAYS AFTER BID OPENING, A GSFC SURVEY TEAM COMPRISED OF EXPERIENCED CONTRACTING PERSONNEL FROM THE PROCUREMENT OFFICE VISITED THE PREMISES LISTED BY MOTAL IN ITS BID AS THE SITE OF THE PHOTOLAB. THE ADMINISTRATIVE REPORT SUBMITTED TO OUR OFFICE IN RESPONSE TO YOUR PROTEST SUMMARIZED THE RESULTS OF THE PREAWARD SURVEY AS FOLLOWS:

"*** THE TECHNICAL EVALUATION OF THE CAPABILITIES OF MOTAL MADE AS A RESULT OF THIS SURVEY CLEARLY PROVED TO THE CONTRACTING OFFICER THAT MOTAL HAD AT THAT TIME THE PERSONNEL, EQUIPMENT AND FACILITY TO MEET THE ENTIRE SECHEDULE OF 62 LINE ITEMS SET FORTH IN ARTICLE 4 OF THE IFB AND WAS TECHNICALLY RESPONSIBLE ***. THIS TECHNICAL EVALUATION, *** COMPLETELY REFUTES THE CHARGES OF LACK OF TECHNICAL COMPETENCE ASSERTED BY DUNLOP."

OUR OFFICE HAS CONSISTENTLY HELD THAT THE MATTER OF THE OVERALL RESPONSIBILITY OF THE SUCCESSFUL BIDDER TO PERFORM THE RESULTING CONTRACT IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER. 33 COMP. GEN. 549. SUCH A DETERMINATION NECESSARILY INVOLVES A CONSIDERABLE RANGE OF DISCRETION AND WHERE THE DETERMINATION IS BASED UPON SUBSTANTIAL EVIDENCE, AS HERE, THERE IS NO VALID BASIS UPON WHICH WE MAY SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER. 39 COMP. GEN. 705. IN THE PRESENT CASE, THE RECORD REASONABLY ESTABLISHES THAT THE NECESSARY DETERMINATION REQUIRED BY REGULATION AS TO THE RESPONSIBILITY OF MOTAL WAS MADE BY THE CONTRACTING OFFICER AND, IN THE ABSENCE OF EVIDENCE OF CAPRICIOUS OF ARBITRARY ACTION, WE ACCEPT THE ADMINISTRATIVE DETERMINATION THAT THE SUCCESSFUL BIDDER IS FINANCIALLY ABLE AND TECHNICALLY CAPABLE OF PERFORMING THE CONTRACT. IT SHOULD BE NOTED THAT THE CONTRACTING OFFICER'S DETERMINATION THAT THE FACILITIES OCCUPIED BY MOTAL WERE SATISFACTORY FOR THE PURPOSES OF THE SUBJECT CONTRACT WAS BASED, IN PART AT LEAST, UPON THE ASSUMPTION THAT GOVERNMENT PROPERTY TO BE STORED THEREIN WOULD BE SAFE AND SECURE.

YOUR LETTER OF NOVEMBER 9 ALLEGES FURTHER THAT THE PROCUREMENT AGENCY'S FAILURE TO INSPECT THE FACILITIES OCCUPIED BY MOTAL WITHIN 2 OR 3 DAYS AFTER BID OPENING, AS YOU REQUESTED, WAS INDICATIVE OF FAVORITISM AFFORDED TO MOTAL, AND THAT YOUR INTERESTS WERE PREJUDICED THEREBY. THE CONTRACTING OFFICER ADVISES, IN THIS REGARD, THAT PREAWARD SURVEYS ARE USUALLY CONDUCTED 10 DAYS AFTER BID OPENING. WE ARE NOT AWARE OF ANY REQUIREMENT THAT INFORMATION RELATIVE TO THE RESPONSIBILITY OF THE SUCCESSFUL BIDDER MUST BE GATHERED SHORTLY AFTER THE DATE BIDS ARE OPENED. MOREOVER, IT APPEARS THAT THE SOLE REASON FOR YOUR REQUEST THAT THE PREAWARD SURVEY BE CONDUCTED WITHIN 2 TO 3 DAYS AFTER BID OPENING WAS BECAUSE, AT THAT TIME, MOTAL HAD NO EXISTING FACILITIES. THIS FACT, YOU APPARENTLY BELIEVE, WOULD HAVE RESULTED IN A DETERMINATION THAT MOTAL WAS NOT A RESPONSIBLE BIDDER. HOWEVER, THE REGULATIONS GOVERNING THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS PROVIDE THAT THE MINIMUM GENERAL STANDARDS OF RESPONSIBILITY MAY BE SATISFIED BY EVIDENCE OF THE BIDDER'S ABILITY TO OBTAIN THE REQUISITE PRODUCTION AND TECHNICAL EQUIPMENT. SEE ALSO NASA PR 1.903-4. FURTHER, THERE IS NO INVITATION OR REGULATORY REQUIREMENT THAT THE SUCCESSFUL BIDDER MUST HAVE THE NECESSARY FACILITIES AND EQUIPMENT TO PERFORM THE CONTRACT BY THE DATE OF BID OPENING AS A CONDITION PRECEDENT TO A DETERMINATION OF RESPONSIBILITY. SEE, IN THIS RESPECT, 39 COMP.GEN. 655, WHEREIN IT WAS HELD THAT THE QUESTION OF THE RESPONSIBILITY OF THE SUCCESSFUL BIDDER MUST BE RESOLVED WITH REFERENCE TO THE TIME PERFORMANCE IS SCHEDULED TO BEGIN PLUS ANY LEAD TIME WHICH IS NECESSARY IN THE PARTICULAR CASE. WE STATED IN THAT DECISION THAT "SINCE THE AWARD, AND CONSEQUENTLY THE DETERMINATION OF RESPONSIBILITY, MUST BE MADE PRIOR TO THAT TIME, WE THINK THAT THE BIDDER MAY BE REGARDED AS RESPONSIBLE IF IN THE VIEW OF THE CONTRACTING AGENCY THE BIDDER WILL BE CAPABLE OF PERFORMING *** AT THE REQUIRED TIME."

FOR THE FOREGOING REASONS, WE FIND NO BASIS TO OBJECT TO THE CONSIDERATION OF THE LOW BID OF MOTAL CUSTOM DARKROOMS FOR POSSIBLE AWARD UNDER THE INVITATION. ACCORDINGLY, YOUR PROTEST IS DENIED.