B-164077, JUL. 18, 1968

B-164077: Jul 18, 1968

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TO MERCER CHEMICAL CORP.: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 18. WHICHEVER IS LATER. BIDS WERE OPENED DECEMBER 15. WAS THE LOW BIDDER ON ITEMS 1 THROUGH 36 OF THE INVITATION AFTER APPLICATION OF THE BUY AMERICAN ACT DIFFERENTIAL FOR BID EVALUATION WHERE IT IS NECESSARY TO COMPARE BID PRICES ON FOREIGN-MADE PRODUCTS WITH BID PRICES ON PRODUCTS MANUFACTURED IN THE UNITED STATES. IT IS ADMINISTRATIVELY REPORTED THAT BECAUSE YOUR COMPANY WAS. WAS ISSUED AND CONTAINED A RECOMMENDATION THAT YOUR FIRM WAS INCAPABLE OF PERFORMING UNDER THE TERMS OF THE SUBJECT INVITATION. THIS RECOMMENDATION WAS BASED PRINCIPALLY ON THE FACT THAT THE INVITATION REQUIRED THAT SHIPMENT OF SUPPLIES BE MADE WITHIN 45 DAYS OF RECEIPT OF ORDER.

B-164077, JUL. 18, 1968

TO MERCER CHEMICAL CORP.:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 18, 1968, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID AND THE AWARD OF CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. FPNTP-A6- 56541-A-12-15-67, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

THE INVITATION DATED NOVEMBER 16, 1967, REQUESTED BIDS FOR VARIOUS GROUPS OF HAND FILES (AMERICAN PATTERN) WITH GUARANTEED MINIMUMS FOR THE PERIOD APRIL 1, 1968, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH MARCH 31, 1969. BIDS WERE OPENED DECEMBER 15, 1967. YOUR COMPANY, OFFERING FOREIGN -MADE PRODUCTS (100 PERCENT MANUFACTURED IN INDIA), WAS THE LOW BIDDER ON ITEMS 1 THROUGH 36 OF THE INVITATION AFTER APPLICATION OF THE BUY AMERICAN ACT DIFFERENTIAL FOR BID EVALUATION WHERE IT IS NECESSARY TO COMPARE BID PRICES ON FOREIGN-MADE PRODUCTS WITH BID PRICES ON PRODUCTS MANUFACTURED IN THE UNITED STATES.

IT IS ADMINISTRATIVELY REPORTED THAT BECAUSE YOUR COMPANY WAS, AT THE TIME OF BID EVALUATION, IN A DELINQUENT STATUS WITH RESPECT TO A LARGE NUMBER OF PURCHASE ORDERS ISSUED TO IT UNDER SEVERAL PRIOR CONTRACTS WITH GSA FOR THE SAME AND SIMILAR ITEMS, THE PROCUREMENT OFFICE REQUESTED A PLANT FACILITY SURVEY OF YOUR COMPANY. THEREAFTER, A PLANT FACILITIES REPORT DATED JANUARY 3, 1968, WAS ISSUED AND CONTAINED A RECOMMENDATION THAT YOUR FIRM WAS INCAPABLE OF PERFORMING UNDER THE TERMS OF THE SUBJECT INVITATION. THIS RECOMMENDATION WAS BASED PRINCIPALLY ON THE FACT THAT THE INVITATION REQUIRED THAT SHIPMENT OF SUPPLIES BE MADE WITHIN 45 DAYS OF RECEIPT OF ORDER. IN THIS RESPECT, IT IS REPORTED THAT YOUR END ITEM PROCESS CYCLE FROM THE TIME SHIPMENT LEAVES THE POINT OF MANUFACTURE IN INDIA TO THE TIME OF SHIPMENT FROM YOUR FACILITY IN NEW YORK CITY, TO DESTINATION, IS APPROXIMATELY 40 DAYS. SUCH CYCLE WOULD LEAVE ONLY 5 DAYS' RESERVE TIME WHICH WAS CONSIDERED BY THE PROCUREMENT OFFICIALS TO BE INSUFFICIENT TO MEET CUSTOMARY DELAYS.

IN ADDITION, IT IS REPORTED THAT YOUR COMPANY'S RECORD REGARDING RECENT PAST DELIVERY PERFORMANCE ON THE SAME AND SIMILAR ITEMS WAS VERY POOR. FOR EXAMPLE, AS OF DECEMBER 6, 1967, YOU HAD BEEN ISSUED 270 PURCHASE ORDERS COVERING 505,460 UNITS UNDER FIVE SEPARATE CONTRACTS, AND YOU WERE DELINQUENT IN MAKING DELIVERIES IN 151 ORDERS INVOLVING 209,791 UNITS. OF DECEMBER 28, 1967, YOUR COMPANY HAD 47 ADDITIONAL PURCHASE ORDERS FOR 68,320 UNITS AND WAS STILL IN A DELINQUENT STATUS ON 200,099 UNITS. UNDER THESE CIRCUMSTANCES, IT WAS FELT THAT YOU COULD NOT POSSIBLY PERFORM, WITHIN THE TIME FRAME REQUIRED UNDER INVITATION NO. -56541, AND AT THE SAME TIME CURE YOUR PRIOR DELINQUENCIES.

AS A RESULT OF THE ADVERSE PLANT FACILITIES REPORT AND BECAUSE OF YOUR POOR RECORD OF PRIOR CONTRACT PERFORMANCE, AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1-1.708-2 (A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), THE CONTRACTING OFFICER ADVISED THE SMALL BUSINESS ADMINISTRATION (SBA) THAT FURTHER ACTION WITH RESPECT TO YOUR BID WOULD BE HELD IN ABEYANCE PENDING NOTIFICATION AS TO WHETHER SBA WOULD ELECT TO ISSUE A CERTIFICATE OF COMPETENCY (COC) TO YOUR COMPANY. HOWEVER, SBA REFUSED TO ISSUE A COC AND NOTIFIED THE PROCUREMENT OFFICE THAT YOUR FIRM WAS INELIGIBLE FOR COC ACTION BECAUSE YOU WERE OFFERING FOREIGN-MADE PRODUCTS.

FOLLOWING RECEIPT OF THE SBA DETERMINATION, THE CONTRACTING OFFICER, BASED ON THE INFORMATION AVAILABLE TO HIM, DETERMINED THAT YOUR FIRM WAS NONRESPONSIBLE FOR THE PURPOSES OF THIS PROCUREMENT. HOWEVER, PRIOR TO THE REJECTION OF YOUR BID, OFFICIALS OF YOUR FIRM REQUESTED THAT THE PROPOSED REJECTION ON THE GROUND OF NONRESPONSIBILITY BE RECONSIDERED. A RESULT, THE CONTRACTING OFFICER REQUESTED THAT THE EARLIER PRIOR FACILITIES REPORT BE UPDATED AND BY MEMORANDUM DATED APRIL 11, 1968, THE NEW YORK QUALITY CONTROL DIVISION OF GSA ADVISED THAT IT WAS STILL ITS OPINION THAT YOUR COMPANY COULD NOT MEET THE 45 DAY DELIVERY REQUIREMENT INVOLVED IN THIS PROCUREMENT AND THE PREVIOUS RECOMMENDATION THAT DETERMINED YOUR FIRM TO BE NONRESPONSIBLE WAS REPEATED. UNDER ALL THE CIRCUMSTANCES, THE CONTRACTING OFFICER WAS REQUIRED TO REJECT YOUR BID.

UNDER FPR SECS. 1-1.310-5 AND -6, IT IS THE DUTY OF THE CONTRACTING OFFICER TO DETERMINE WHETHER A PROSPECTIVE CONTRACTOR MEETS THE REQUIRED STANDARDS OF RESPONSIBILITY SET FORTH THEREIN. PERFORMANCE UNDER CURRENT CONTRACTS AND ABILITY TO PERFORM THE ADVERTISED CONTRACT SUCCESSFULLY ARE FACTORS FOR CONSIDERATION AND THE CONTRACTING OFFICER IS VESTED WITH CONSIDERABLE DISCRETION IN MAKING THE REQUIRED DETERMINATION BASED ON HIS JUDGMENT AS TO THESE AND OTHER STATED FACTORS OF RESPONSIBILITY. IN THIS RESPECT, FPR SEC. 1-1.310-5 (4) STATES, WITH REFERENCE TO THE MATTER OF HAVING A SATISFACTORY RECORD OF PERFORMANCE, THAT "CONTRACTORS WHICH ARE SERIOUSLY DELINQUENT IN CURRENT CONTRACT PERFORMANCE, CONSIDERING THE NUMBER OF CONTRACTS AND THE EXTENT OF DELINQUENCIES OF EACH, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR COMPELLING CIRCUMSTANCES, BE PRESUMED TO BE UNABLE TO FULFILL THIS REQUIREMENT.' WE FIND NO BASIS ON THE RECORD TO DISAGREE WITH THE DETERMINATION OF NONRESPONSIBILITY MADE BY THE CONTRACTING OFFICER AS TO YOUR INABILITY TO SATISFACTORILY PERFORM THE RESULTING CONTRACT. 37 COMP. GEN. 430, 435; ID. 798; 38 ID. 131; 43 ID. 257, AND CASES CITED THEREIN.

IN VIEW OF THE CIRCUMSTANCES SET FORTH ABOVE, WE FIND NO LEGAL BASIS TO OBJECT TO THE REJECTION OF YOUR BID AND YOUR PROTEST IS THEREFORE DENIED.