B-163979, MAY 24, 1968

B-163979: May 24, 1968

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WREN: REFERENCE IS MADE TO YOUR LETTER OF APRIL 9. 000 150 THE EJECTION FUZE BASE IS A COMPONENT OF THE MK 45 AIRCRAFT PARACHUTE FLARE SLATED FOR PRODUCTION THE BEGINNING OF JUNE. THE PARACHUTE FLARE WILL BE USED IN SOUTHEAST ASIA AND THE PROJECT IS ASSIGNED AN 02 PRIORITY DESIGNATOR. SEVEN BIDS WERE RECEIVED AS FOLLOWS: TOTAL BIDDER BID PRICE PLASTI-PARTS MFG. AMERICAN TROVER CORPORATION ALLEGED ERRORS IN THEIR BID PRICES AND UPON SUBMISSION OF EVIDENCE OF ERROR WERE ALLOWED TO WITHDRAW THEIR BIDS. SHERWOOD MOULDED PLASTICS AND YOUR COMPANY WERE DETERMINED TO BE UNABLE TO MEET THE DELIVERY REQUIREMENT SPECIFIED IN THE INVITATION AND WERE THEREFORE REJECTED AS NONRESPONSIBLE BIDDERS. BIDS WERE REJECTED AS NONRESPONSIVE TO THE INVITATION DELIVERY SCHEDULE.

B-163979, MAY 24, 1968

TO MR. W. D. WREN:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 9, 1968, PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS N00164-68-B-0150 ISSUED BY THE UNITED STATES NAVAL AMMUNITION DEPOT, CRANE, INDIANA.

THE INVITATION SOLICITED BIDS FOR FURNISHING 90,000 EJECTION FUZE BASES AND THE MOLD NECESSARY TO MANUFACTURE THE ARTICLES. THE DELIVERY SCHEDULE IN THE INVITATION REQUIRED THAT THE FUZE BASES BE DELIVERED AS FOLLOWS:

QUANTITY DAYS AFTER AWARD 5,000

60 30,000 90

30,000 120 25,000

150

THE EJECTION FUZE BASE IS A COMPONENT OF THE MK 45 AIRCRAFT PARACHUTE FLARE SLATED FOR PRODUCTION THE BEGINNING OF JUNE. THE PARACHUTE FLARE WILL BE USED IN SOUTHEAST ASIA AND THE PROJECT IS ASSIGNED AN 02 PRIORITY DESIGNATOR.

SEVEN BIDS WERE RECEIVED AS FOLLOWS:

TOTAL

BIDDER BID PRICE

PLASTI-PARTS MFG. CO. $ 38,240.00

AMERICAN TROVER CORP. 42,900.00

SHERWOOD MOULDED PLASTICS 59,462.70

WREN, INC. 104,215.60

ARROW MOLDED PLASTICS CO. 121,260.00

SCO-CAM MANUFACTURING CO. 140,850.00

GERMANTOWN TOOL AND MACHINE CO. 154,200.00 PLASTI-PARTS MFG. CO. AND AMERICAN TROVER CORPORATION ALLEGED ERRORS IN THEIR BID PRICES AND UPON SUBMISSION OF EVIDENCE OF ERROR WERE ALLOWED TO WITHDRAW THEIR BIDS. SHERWOOD MOULDED PLASTICS AND YOUR COMPANY WERE DETERMINED TO BE UNABLE TO MEET THE DELIVERY REQUIREMENT SPECIFIED IN THE INVITATION AND WERE THEREFORE REJECTED AS NONRESPONSIBLE BIDDERS. THE ARROW MOLDED PLASTIC CO. AND SCO-CAM MANUFACTURING CO. BIDS WERE REJECTED AS NONRESPONSIVE TO THE INVITATION DELIVERY SCHEDULE. THE AWARD WAS MADE TO THE REMAINING BIDDER, GERMANTOWN TOOL AND MACHINE CO.

A PREAWARD SURVEY OF YOUR COMPANY WAS MADE BY DCASD, INDIANAPOLIS. THE SURVEY REPORT RECOMMENDED AGAINST AN AWARD TO YOUR COMPANY BECAUSE OF ITS INABILITY TO PRODUCE AND DELIVER AS REQUIRED BY THE INVITATION. THAT RECOMMENDATION WAS BASED UPON AN ESTIMATE THAT IT WOULD REQUIRE 6 TO 8 WEEKS TO PRODUCE THE MOLD SET, AN ADDITIONAL 2 WEEKS TO SET UP, PRODUCE SAMPLES, CHECK AND CORRECT MOLDS AND AN ADDITIONAL WEEK TO PRODUCE THE FIRST 5,000 UNITS. BASED UPON THESE LEAD TIMES, IT WAS ESTIMATED THAT THE MINIMUM DELIVERY OF THE FIRST 5,000 UNITS WOULD BE 9 WEEKS AFTER RECEIPT OF THE CONTRACT. IN ADDITION, THE SURVEY REPORT QUOTED YOU AS STATING THAT IT WOULD REQUIRE A MINIMUM OF 70 DAYS TO PRODUCE AND SHIP THE FIRST 5,000 UNITS. IN VIEW OF THE SURVEY REPORT, THE CONTRACTING OFFICER DETERMINED THAT YOUR COMPANY IS NONRESPONSIBLE FOR THE PURPOSE OF PERFORMING THE SUBJECT CONTRACT. ACCORDINGLY, THE BID FROM YOUR COMPANY WAS REJECTED.

YOU DISPUTE THAT YOU TOLD THE SURVEYOR THAT 70 DAYS WOULD BE REQUIRED FOR THE PRODUCTION AND SHIPMENT OF THE FIRST 5,000 UNITS. YOU CONTEND THAT THE SURVEYOR WAS ASSURED THAT THE 60-DAY DELIVERY WHICH WAS A REQUIREMENT OF YOUR BID WOULD BE MET.

HOWEVER, AS INDICATED ABOVE, THE SURVEY REPORT WHICH THE CONTRACTING OFFICER HAD FOR CONSIDERATION STATED OTHERWISE. THE CONTRACTING OFFICER ACTED UPON THAT INFORMATION IN THE REPORT IN DETERMINING THAT YOUR COMPANY WOULD BE UNABLE TO PERFORM THE CONTRACT ON TIME. IF THE INFORMATION THE CONTRACTING OFFICER WAS FURNISHED WAS INACCURATE, IT IS UNFORTUNATE, BUT THE NECESSITY FOR TIMELY DELIVERY IS EMPHASIZED BY THE NEED FOR COORDINATING THE DELIVERY OF THE EJECTION FUZE BASES WITH THE PARACHUTE FLARES AND THE 02 PRIORITY DESIGNATOR PLACED UPON THE PROJECT AND THERE IS NO INDICATION THAT THE CONTRACTING OFFICER ACTED IN OTHER THAN GOOD FAITH IN ARRIVING AT THE DETERMINATION THAT YOUR COMPANY WOULD NOT BE ABLE TO PERFORM ON TIME.

IT IS NOT THE FUNCTION OF OUR OFFICE TO DETERMINE WHETHER OR NOT PARTICULAR BIDDERS ARE RESPONSIBLE. THAT DETERMINATION IS A MATTER OF JUDGMENT WITHIN THE DISCRETION OF THE PROCUREMENT ACTIVITY WHICH IS RESPONSIBLE FOR LETTING CONTRACTS AND FOR THE ADMINISTRATION THEREOF. COMP. GEN. 705, 711. IT HAS BEEN HELD THAT THE FINAL SELECTION OF A CONTRACTOR INVOLVES DISCRETION THAT IS NOT ORDINARILY SUBJECT TO REVIEW. FRIEND V LEE, 221 F.2D 96. IN FACT, THE COURT IN THAT CASE INDICATED THAT CONDUCT TANTAMOUNT TO FRAUD MUST BE PROVED AS A CONDITION TO REVIEWING THE DETERMINATION OF RESPONSIBILITY. FROM THE RECORD BEFORE US, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER ACTED ARBITRARILY OR UPON SOME PERSONAL WHIM OR CAPRICE. HENCE, IT WOULD NOT BE APPROPRIATE FOR OUR OFFICE TO DISTURB THE CONTRACT AWARDED HERE. YOUR PROTEST IS THEREFORE DENIED.