B-163331, APR. 8, 1968

B-163331: Apr 8, 1968

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I. GARMENT COMPANY: REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 16. THIS SOLICITATION WAS ISSUED ON JULY 25. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION. THE ECT CORPORATION (ECT) WAS THE LOW BIDDER. WHILE YOUR FIRM WAS THE SECOND LOW BIDDER. WAS REQUESTED TO MAKE A PREAWARD SURVEY OF ECT. THUS WAS ELIMINATED FROM FURTHER CONSIDERATION. ILLINOIS DCASR OFFICE WAS THEN REQUESTED TO CONDUCT A PREAWARD SURVEY OF YOUR FIRM. IT WAS THEN DETERMINED BY THE PROCURING CONTRACTING OFFICER (PCO) PURSUANT TO ARMED SERVICES PROCUREMENT REGULATIONS (ASPR) 1-904.1 THAT YOUR FIRM WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF ASPR 1- 903.1 (III). WHICH PROVIDES THAT A PROSPECTIVE CONTRACTOR MUST: "* * * HAVE A SATISFACTORY RECORD OF PERFORMANCE (CONTRACTORS WHO ARE SERIOUSLY DEFICIENT IN CURRENT CONTRACT PERFORMANCE.

B-163331, APR. 8, 1968

TO H. I. GARMENT COMPANY:

REFERENCE IS MADE TO YOUR TELEGRAM OF JANUARY 16, 1968, AND SUPPLEMENTARY LETTER DATED JANUARY 17, 1968, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER SOLICITATION F41608-68-B-0063, ISSUED BY THE DEPARTMENT OF THE AIR FORCE, KELLY AIR FORCE BASE, TEXAS.

THIS SOLICITATION WAS ISSUED ON JULY 25, 1967, AND CALLED FOR BIDS FOR THE FURNISHING OF SIX DIFFERENT SIZES OF ANTI-G SUITS MANUFACTURED TO MILITARY SPECIFICATION MIL-A-25892C. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION. THE ECT CORPORATION (ECT) WAS THE LOW BIDDER, WHILE YOUR FIRM WAS THE SECOND LOW BIDDER. THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE (DCASR), ATLANTA, GEORGIA, WAS REQUESTED TO MAKE A PREAWARD SURVEY OF ECT. THIS SURVEY RESULTED IN A "NO AWARD" RECOMMENDATION BY DCASR, DUE TO A LACK OF CAPACITY ON THE PART OF ECT. ECT DID NOT REQUEST A CERTIFICATE OF COMPETENCY (COC) FROM THE SMALL BUSINESS ADMINISTRATION (SBA), THUS WAS ELIMINATED FROM FURTHER CONSIDERATION. THE CHICAGO, ILLINOIS DCASR OFFICE WAS THEN REQUESTED TO CONDUCT A PREAWARD SURVEY OF YOUR FIRM, WHICH ALSO RESULTED IN A "NO AWARD" RECOMMENDATION BY DCASR DUE TO YOUR FIRM'S LACK OF TENACITY AND PERSERVERANCE. A SECOND PREAWARD SURVEY CONFIRMED THIS RECOMMENDATION. IT WAS THEN DETERMINED BY THE PROCURING CONTRACTING OFFICER (PCO) PURSUANT TO ARMED SERVICES PROCUREMENT REGULATIONS (ASPR) 1-904.1 THAT YOUR FIRM WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF ASPR 1- 903.1 (III), WHICH PROVIDES THAT A PROSPECTIVE CONTRACTOR MUST: "* * * HAVE A SATISFACTORY RECORD OF PERFORMANCE (CONTRACTORS WHO ARE SERIOUSLY DEFICIENT IN CURRENT CONTRACT PERFORMANCE, WHEN THE NUMBER OF CONTRACTS AND THE EXTENT OF DEFICIENCY OF EACH ARE CONSIDERED, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR CIRCUMSTANCES PROPERLY BEYOND THE CONTROL OF THE CONTRACTOR, BE PRESUMED TO BE UNABLE TO MEET THIS REQUIREMENT). PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLY NECESSARY TENACITY OR PERSERVERANCE TO DO AN ACCEPTABLE JOB, SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY AND IN THE CASE OF SMALL BUSINESS CONCERNS SHALL NOT REQUIRE SUBMISSION OF THE CASE TO THE SMALL BUSINESS ADMINISTRATION. SEE ASPR 1-705.4 (C) (V).'

IT IS YOUR CONTENTION THAT THERE WAS NO JUSTIFICATION FOR DISQUALIFYING YOUR FIRM ON THE BASIS OF NONRESPONSIBILITY, SINCE THE DISQUALIFICATION WAS BASED ON THE DELINQUENCY OF RECENT CONTRACTS WHICH HAVE NOW BEEN COMPLETED. YOU FURTHER CONTEND THAT YOUR FIRM HAS THE NECESSARY FINANCING, EQUIPMENT, PERSONNEL, QUALITY CONTROL AND EXPERIENCE TO MEET THE BID REQUIREMENTS AND THAT YOU HAVE PREVIOUSLY MANUFACTURED THE ITEM BEING PROCURED.

ACCORDING TO THE RECORD, THE DETERMINATION OF NONRESPONSIBILITY WAS NOT BASED ON YOUR FIRM'S LACK OF FINANCING, EQUIPMENT, PERSONNEL, QUALITY CONTROL OR EXPERIENCE TO MEET THE BID REQUIREMENTS, BUT WAS BASED ON YOUR PAST RECORD OF PERSISTENT AND CONTINUOUS FAILURE TO MEET DELIVERY REQUIREMENTS OF YOUR CONTRACTS. ACCORDING TO THE PREAWARD SURVEY DATED DECEMBER 28, 1967, YOUR FIRM HAD COMPLETED 12 CONTRACTS WITHIN THE PREVIOUS 18 MONTHS, ALL OF WHICH WERE COMPLETED IN A DELINQUENT STATUS, IN SPITE OF THE FACT THAT 11 OF THESE CONTRACTS HAD THE DELIVERY SCHEDULE EXTENDED ONE OR MORE TIMES. THERE IS AMPLE INDICATION THAT THIS DELINQUENCY WAS ATTRIBUTABLE TO LACK OF TENACITY OR PERSERVERANCE INDICATED BY NUMEROUS FAILURES TO PLACE TIMELY ORDERS FOR MATERIALS AND APPARENT FAILURE TO EXERCISE REASONABLE DILIGENCE TO MAINTAIN PRODUCTION.

CONCERNING YOUR STATEMENT THAT YOU HAVE PREVIOUSLY MANUFACTURED THE ANTI- G SUITS, THE SURVEY INDICATES THAT YOU LAST PRODUCED THESE SUITS FOR THE GOVERNMENT UNDER DEFENSE SUPPLY AGENCY CONTRACT DSA100-1734, WHICH WAS AWARDED FEBRUARY 1, 1966, AND CALLED FOR THE DELIVERY OF 6,318 SUITS BY JULY 1, 1966. THE CONTRACT WAS NOT COMPLETED UNTIL JANUARY 1, 1967, THE SIX-MONTH DELAY HAVING BEEN CAUSED BY OVERLOADING OF PLANT FACILITIES, POOR PLANNING AND POOR QUALITY.

THIS OFFICE HAS HELD THAT THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED, AND IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF ANY REASONABLE BASIS FOR THE ADMINISTRATIVE DETERMINATION THERE IS NO BASIS UPON WHICH WE MAY OBJECT. SEE 45 COMP. GEN. 4, 6; 39 COMP. GEN. 705, 711; 38 COMP. GEN. 131, 133; B 161167, JUNE 9, 1967; B-157055, MAY 4, 1967. IN THE PRESENT CASE, IT IS OUR OPINION THAT THE LARGE NUMBER OF CONTRACTS COMPLETED IN A DELINQUENT STATUS, APPARENTLY WITHOUT EXCUSE, IS SUFFICIENT TO SUPPORT THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR RECORD OF PERFORMANCE WAS UNSATISFACTORY AND THAT YOUR FIRM WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF ASPR 1-903.1 (III). SEE B-160597, JUNE 13, 1967; B-160499, JANUARY 6, 1967; B 159062, JULY 20, 1966.

SINCE WE FIND NO BASIS UPON WHICH OUR OFFICE MAY OBJECT TO THE ADMINISTRATIVE ACTION IN THIS CASE, YOUR PROTEST MUST BE DENIED.