B-163860-/2), JUL. 22, 1969

B-163860-/2): Jul 22, 1969

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BID PROTEST - TIMELY ADMINISTRATIVE REPORTS DECISION TO SECRETARY OF DEFENSE ADVISING THAT IT IS A MATTER OF GRAVE CONCERN TO THIS OFFICE WHENEVER WE CONCLUDE THAT AN ACTION OF THE PROCURING AGENCY HAS RESULTED IN INJUSTICE TO A PROTESTING BIDDER. MUST FIND WE ARE PRECLUDED FROM CORRECTING SUCH INJUSTICE BY THE EXTENT TO WHICH AN ERRONEOUSLY AWARDED CONTRACT HAS ALREADY BEEN PERFORMED. IT IS OF EVEN GREATER CONCERN TO US WHEN WE MUST CONCLUDE THAT OUT INABILITY TO GRANT THE RELIEF REQUESTED IN A MERITORIOUS PROTEST IS ATTRIBUTABLE TO DELAYS RESULTING FROM NUMEROUS AND REPEATED REQUESTS BY THIS OFFICE FOR COMPLETE. INC.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15. OUR CONCLUSIONS IN THAT DECISION WERE BASED UPON INFORMATION IN THE ADMINISTRATIVE RECORD WHICH INDICATED THAT THERE WERE REPEATED FAILURES BY YOUR SUPPLIERS (MOSTLY GERMAN) TO MAKE TIMELY DELIVERIES OF A SUFFICIENT NUMBER OF ACCEPTABLE PARTS.

B-163860-/2), JUL. 22, 1969

BID PROTEST - TIMELY ADMINISTRATIVE REPORTS DECISION TO SECRETARY OF DEFENSE ADVISING THAT IT IS A MATTER OF GRAVE CONCERN TO THIS OFFICE WHENEVER WE CONCLUDE THAT AN ACTION OF THE PROCURING AGENCY HAS RESULTED IN INJUSTICE TO A PROTESTING BIDDER, BUT MUST FIND WE ARE PRECLUDED FROM CORRECTING SUCH INJUSTICE BY THE EXTENT TO WHICH AN ERRONEOUSLY AWARDED CONTRACT HAS ALREADY BEEN PERFORMED. FURTHER, IT IS OF EVEN GREATER CONCERN TO US WHEN WE MUST CONCLUDE THAT OUT INABILITY TO GRANT THE RELIEF REQUESTED IN A MERITORIOUS PROTEST IS ATTRIBUTABLE TO DELAYS RESULTING FROM NUMEROUS AND REPEATED REQUESTS BY THIS OFFICE FOR COMPLETE, ACCURATE AND CURRENT FACTUAL INFORMATION NECESSARY TO OUR CONSIDERATION OF THE PROTEST. WE CONSIDER IT APPROPRIATE TO SET OUT IN SOME DETAIL OUR EXPERIENCES IN THIS PROTEST, IN THE HOPE THAT RECURRENCE CAN BE PREVENTED IN THE FUTURE.

TO SPACE SYSTEMS LABORATORY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1968, AND LEGAL BRIEF DATED AUGUST 30, 1968, REQUESTING RECONSIDERATION OF OUR DECISION B 163860, AUGUST 14, 1968, IN WHICH WE DENIED YOUR PROTEST AGAINST AWARD TO ANOTHER FIRM UNDER SOLICITATION NO. DAAA25-68-R-0294, ISSUED BY THE FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

IN OUR DECISION OF AUGUST 14, 1968, WE AGREED WITH THE PROCURING AGENCY'S DETERMINATION OF FEBRUARY 19, 1968, THAT YOUR FIRM LACKED THE NECESSARY TENACITY AND PERSEVERANCE TO PERFORM THIS CONTRACT DUE TO YOUR FAILURE TO MAKE OR MAINTAIN ADEQUATE ARRANGEMENTS TO INSURE TIMELY DELIVERIES OF MATERIALS AND COMPONENTS FROM YOUR SUPPLIERS AND SUBCONTRACTORS. OUR CONCLUSIONS IN THAT DECISION WERE BASED UPON INFORMATION IN THE ADMINISTRATIVE RECORD WHICH INDICATED THAT THERE WERE REPEATED FAILURES BY YOUR SUPPLIERS (MOSTLY GERMAN) TO MAKE TIMELY DELIVERIES OF A SUFFICIENT NUMBER OF ACCEPTABLE PARTS, AND THAT YOUR FIRM REFUSED TO SWITCH TO MORE RELIABLE DOMESTIC SUPPLIERS. AS INDICATED BY THE RECORD, BOTH THE PROCURING AGENCY IN MAKING ITS DETERMINATION AND THIS OFFICE IN RENDERING ITS DECISION OF AUGUST 14, ATTACHED CONSIDERABLE SIGNIFICANCE TO YOUR DELINQUENCIES UNDER CONTRACT NO. DA-36-038-AMC-3957, WHICH WERE ATTRIBUTED TO YOUR INABILITY TO OBTAIN TIMELY DELIVERIES OF COMPONENTS FROM YOUR GERMAN SUPPLIERS.

IN THIS CONNECTION, THE ONLY OTHER DELINQUENCY ON THE PART OF YOUR FIRM FOR APPROXIMATELY A YEAR PRECEDING THE CONTRACTING OFFICER'S DETERMINATION WAS A DELAY OF 11 DAYS IN DELIVERING 54 UNITS UNDER A PREVIOUS CONTRACT (DA-36-038-AMC-4114), AND A DETERMINATION THAT YOU WERE NONRESPONSIBLE BECAUSE OF LACK OF TENACITY AND PERSEVERANCE DUE TO YOUR INABILITY TO CONTROL YOUR GERMAN SUPPLIERS THEREFORE COULD BE SUPPORTED ONLY IF THE DELINQUENCIES UNDER AMC-3957 WERE IN FACT CAUSED BY YOUR FAILURE TO OBTAIN TIMELY DELIVERIES OF COMPONENTS FROM YOUR GERMAN SUPPLIERS.

YOUR BRIEF OF AUGUST 30 CONTENDED THAT THE INFORMATION IN THE ARMY'S RECORDS, WHICH INDICATED YOUR DELINQUENCIES UNDER CONTRACT AMC-3957 WERE DUE TO DELINQUENCIES OF YOUR GERMAN SUPPLIERS, WAS WITHOUT FOUNDATION IN FACT, AND YOU BROUGHT ADDITIONAL INFORMATION TO THE ATTENTION OF THIS OFFICE WHICH STRONGLY SUPPORTED YOUR CONTENTION THAT THE DELINQUENCIES UNDER AMC-3957 WERE ACTUALLY CAUSED BY THE GOVERNMENT'S FAILURE TO CORRECT DRAWING ERRORS AND DESIGN DEFICIENCIES FOR ASSEMBLIES TO BE DELIVERED UNDER THE CONTRACT.

TO RESOLVE THE QUESTION OF THE CAUSE OF THE DELINQUENCIES UNDER AMC 3957, WE SENT A LETTER DATED OCTOBER 10, 1968, TO THE SECRETARY OF ARMY REQUESTING ANY ADDITIONAL DOCUMENTATION OR EXPLANATION IN SUPPORT OF THE CONCLUSION THAT THE DELINQUENCIES WERE CAUSED BY DELINQUENCIES OF GERMAN SUPPLIERS, RATHER THAN DEFECTIVE SPECIFICATIONS, INCLUDING IDENTIFICATION OF THE SUPPLIER INVOLVED IN EACH DELINQUENCY, THE COMPONENT TO BE SUPPLIED, AND THE APPROXIMATE DATES ON WHICH DELIVERIES WERE DUE. THE ARMY IN ITS SUPPLEMENTAL REPORT OF NOVEMBER 14, 1968, ADVISED THAT IT WAS UNABLE TO IDENTIFY THE SPECIFIC GERMAN SUPPLIERS OR THE DATES AND EXTENT OF THEIR DELINQUENCIES. UNDER DATE OF DECEMBER 2 THE PROCURING ACTIVITY SUPPLIED THIS OFFICE WITH COPIES OF FIVE TELEGRAMS WHICH SUPPOSEDLY SUPPORTED THE CONTRACTING OFFICER'S DETERMINATION. HOWEVER, THESE TELEGRAMS ALSO FAILED TO SUPPORT THE ENTRIES IN THE RECORD RELATIVE TO DELINQUENCIES OF GERMAN SUPPLIERS. IN VIEW OF THE FAILURE OF THE PROCURING ACTIVITY TO ESTABLISH THE ACCURACY OF THE INFORMATION ON WHICH DETERMINATION WAS BASED, WE CONCLUDED THAT YOUR FIRM WAS ERRONEOUSLY DECLARED NONRESPONSIBLE, AND THAT THE ONLY REMAINING QUESTION WAS WHETHER YOUR FIRM HAD THE NECESSARY CAPACITY AND CREDIT AT THE TIME OF AWARD TO PERFORM THIS CONTRACT.

BY LETTER OF FEBRUARY 6, 1969, WE SO ADVISED THE DEPARTMENT OF THE ARMY, AND WE REQUESTED THAT DEPARTMENT TO TAKE THE NECESSARY STEPS TO MAKE A DETERMINATION AS TO YOUR CAPACITY AND CREDIT. WE ALSO REQUESTED THAT, SHOULD THE DETERMINATION BE NEGATIVE, THE DEPARTMENT SHOULD SUBMIT THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR ACTION PURSUANT TO SECTION 1-705.4 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). FURTHER REQUESTED THAT IF A DETERMINATION WAS MADE BY EITHER THE ARMY OR BY SBA THAT YOUR FIRM HAD THE NECESSARY CAPACITY AND CREDIT TO PERFORM THE CONTRACT, THIS OFFICE BE NOTIFIED IN ORDER THAT FURTHER ACTION COULD BE TAKEN.

THE CONTRACTING OFFICER AT FRANKFORD ARSENAL SUBSEQUENTLY MADE A DETERMINATION THAT YOUR FIRM DID NOT HAVE THE NECESSARY CAPACITY AND CREDIT TO PERFORM THIS CONTRACT. PURSUANT TO ASPR 1-705.4, THIS DETERMINATION WAS SUBMITTED TO SBA, ON FEBRUARY 28, AND ON APRIL 23 THAT AGENCY DETERMINED, IN PERTINENT PART, THAT: "SBA FINDS THAT BASED ON THE INFORMATION AVAILABLE AS OF THIS DATE, HAD IT RECEIVED IN FEBRUARY 1968, A REFERRAL ON PROCUREMENT DAAA25-68-R-0294 FOR 869 INFINITY AIMING COLLIMATORS, IT WOULD HAVE ISSUED A CERTIFICATE OF COMPETENCY IN BEHALF OF SPACE SYSTEMS LABORATORY, INC.'

THUS, IT IS APPARENT THAT YOUR FIRM WAS ENTITLED TO, AND SHOULD HAVE RECEIVED, THE AWARD UNDER SOLICITATION NO. DAAA25-68-R-0294 IN FEBRUARY 1968, AND THAT THE CONTRACT AWARD TO THE BAUSCH AND LOMB OPTICAL COMPANY WAS THEREFORE IMPROPER, WHILE DELIVERIES UNDER THE CONTRACT HAVE BEEN CONSISTENTLY DELINQUENT, WE NOTE THAT AS OF JUNE 27, 1969, ALL BUT 300 UNITS HAD BEEN DELIVERED AND OF THESE REMAINING UNITS TO BE DELIVERED THE PERCENTAGE OF COMPLETION AND DATE OF ANTICIPATED DELIVERY WAS AS FOLLOWS: 50 UNITS - 98 PERCENT COMPLETE TO BE DELIVERED 6/30/69 75 UNITS - 95 PERCENT COMPLETE TO BE DELIVERED 7/11/69 75 UNITS - 90 PERCENT COMPLETE TO BE DELIVERED 7/18/69 75 UNITS - 85 PERCENT COMPLETE TO BE DELIVERED 7/25/69 25 UNITS - 85 PERCENT COMPLETE TO BE DELIVERED 7/31/69

NOTWITHSTANDING THE FACT THAT OUR DECISION HAS BEEN DELAYED BY THE EXTENSIVE DELAYS OCCASIONED BY THE NECESSITY FOR REPEATED REQUESTS TO THE DEPARTMENT OF THE ARMY FOR ADDITIONAL INFORMATION NEEDED TO EXPLAIN OR CORRECT ERRONEOUS STATEMENTS IN ITS RECORDS AND REPORTS, WE MUST CONCLUDE THAT CANCELLATION OF THE CONTRACT AT ITS PRESENT STAGE OF SUBSTANTIAL COMPLETION WOULD NOT BE PRACTICAL AND THAT PORTION OF YOUR PROTEST WHICH REQUESTS SUCH CANCELLATION MUST THEREFORE BE DENIED.

IN THIS CONNECTION, ENCLOSED IS A COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF DEFENSE CALLING TO HIS ATTENTION THE UNDUE DELAYS BY THE ADMINISTRATIVE AGENCY IN RESPONDING TO OUR REQUESTS FOR REPORTS AND INFORMATION, THE INACCURACIES AND MISINFORMATION TRANSMITTED TO THIS OFFICE BY THE ADMINISTRATIVE AGENCY IN RESPONSE TO SUCH REQUESTS, AND SUGGESTING THAT APPROPRIATE ACTION BE TAKEN TO AVOID SUCH DEFICIENCIES IN FUTURE PROTESTS INVOLVING MILITARY PROCUREMENTS.