B-165529, DEC. 27, 1968

B-165529, DEC. 27, 1968

TO SILVERSTEIN AND REMICK:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 18, 1968, ADVISING THAT YOU ARE REPRESENTING LECTRODYNE SYSTEMS CORP. (LECTRODYNE) IN CONNECTION WITH ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO FLORIDA GENERAL ELECTRONICS, INCORPORATED, UNDER INVITATION FOR BIDS NO. DAAA09 69-B-0012, ISSUED BY THE ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS.

THE PROCUREMENT WAS SET ASIDE 100 PERCENT FOR SMALL BUSINESS CONCERNS. THE SUBJECT INVITATION WAS ISSUED ON AUGUST 30, 1968, REQUESTING BIDS FOR FURNISHING 12,879 CABLE ASSEMBLIES IN ACCORDANCE WITH DRAWING NO. 8840363. THE BID OF LECTRODYNE WAS THE LOWEST OF 56 BIDS RECEIVED AND OPENED ON SEPTEMBER 30, 1968. ON OCTOBER 3, 1968, THE CONTRACTING OFFICER REQUESTED THAT A PREAWARD SURVEY BE MADE ON LECTRODYNE TO DETERMINE ITS RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR. ON OR ABOUT OCTOBER 21, 1968, THE RESULTS OF THE PREAWARD SURVEY WERE RETURNED TO THE CONTRACTING OFFICER WITH THE RECOMMENDATION THAT NO AWARD BE MADE TO LECTRODYNE. THE RECOMMENDATION WAS BASED PRIMARILY ON LECTRODYNE'S UNSATISFACTORY CONTRACT PERFORMANCE RECORD. IN A PREAWARD SURVEY REPORT DATED OCTOBER 17, 1968, FROM THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), PHILADELPHIA, THE CONTRACTING OFFICER WAS ADVISED THAT OF 13 CONTRACTS COMPLETED FROM JANUARY 1, 1968, TO OCTOBER 17, 1968, 8 WERE SHIPPED IN A DELINQUENT STATUS. IT WAS ALSO REPORTED THAT FIVE CURRENT CONTRACTS REQUIRING DELIVERY AS OF OCTOBER 17, 1968, WERE FOUND TO BE IN A DELINQUENT STATUS. ALL DELINQUENCIES WERE DETERMINED TO BE THE FAULT OF THE CONTRACTOR. ON OCTOBER 22, 1968, THE CONTRACTING OFFICER REQUESTED CLARIFICATION FROM DCASR WHETHER THE RECOMMENDATION THAT NO AWARD BE MADE TO LECTRODYNE WAS BASED SOLELY ON REASONS OF LACK OF CAPACITY OR CREDIT. THE CONTRACTING OFFICER STATES THAT THE URGENCY OF THE PROCUREMENT WAS SUCH THAT HE INTENDED TO, IF NECESSARY, EXECUTE A CERTIFICATE OF URGENCY UNDER ASPR 1-705.4 (C) (IV) AND NOT REFER THE MATTER TO THE SMALL BUSINESS ADMINISTRATION FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY. ON OCTOBER 25, 1968, THE CONTRACTING OFFICER WAS ADVISED THAT THE SURVEY TEAM FOUND THAT LECTRODYNE FAILED TO MEET THE MINIMUM STANDARDS OF RESPONSIBILITY SET OUT IN ASPR 1-903.1 AND THAT ITS DELINQUENCIES WERE ATTRIBUTABLE TO ITS LACK OF TENACITY TO DO AN ACCEPTABLE JOB. ON OCTOBER 25, 1968, BASED ON THE PREAWARD SURVEY, THE CONTRACTING OFFICER DETERMINED LECTRODYNE TO BE NONRESPONSIBLE AND AWARDED THE CONTRACT TO FLORIDA GENERAL ELECTRONICS AS THE LOWEST RESPONSIBLE BIDDER. INASMUCH AS LECTRODYNE'S PRIOR UNSATISFACTORY PERFORMANCE WAS NOT ATTRIBUTABLE TO A LACK OF CAPACITY OR CREDIT, THE CONTRACTING OFFICER NEITHER EXECUTED A CERTIFICATE OF URGENCY NOR SUBMITTED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY. SEE ASPR 1-705.4 (C) (V).

IN A LETTER DATED NOVEMBER 6, 1968, LECTRODYNE ALLEGES THAT ITS PRIOR DELINQUENCIES WERE NOT SERIOUS IN NATURE AND THAT IT HAS CLEARED UP ALL DELINQUENCIES IN A SHORT PERIOD OF TIME WHENEVER IT HAD FALLEN BEHIND SCHEDULE. IN ADDITION, IN YOUR LETTER OF NOVEMBER 18, 1968, YOU STATE THAT THE SMALL BUSINESS ADMINISTRATION WAS NEVER CONTACTED AND THAT UNDER THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), SINCE YOU PROTESTED PRIOR TO AWARD, THE AWARD SHOULD HAVE BEEN IN ABEYANCE.

IT IS WELL SETTLED THAT THE DETERMINATION OF A BIDDER'S RESPONSIBILITY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION AND OUR OFFICE HAS CONSISTENTLY ADHERED TO THE RULE THAT THE ADMINISTRATIVE DETERMINATION WILL NOT BE QUESTIONED UNLESS ARBITRARY OR CAPRICIOUS. 38 COMP. GEN. 131; 37 COMP. GEN. 430, 435. IT ALSO HAS BEEN SETTLED THAT THE PHRASE "RESPONSIBLE BIDDER," AS USED IN STATUTES REQUIRING AWARD OF PUBLIC CONTRACTS TO THE LOWEST RESPONSIBLE BIDDER, DENOTES SOMETHING MORE THAN THE ABILITY OR CAPACITY OF A BIDDER TO PERFORM THE CONTRACT AND A CONTRACTING AGENCY, THEREFORE, MAY ALSO CONSIDER A BIDDER'S RECORD OF INTEGRITY IN DECIDING WHETHER HE IS, IN FACT, A RESPONSIBLE BIDDER. SEE 39 COMP. GEN. 468. ALSO, WE HAVE HELD THAT, WHERE A BIDDER IS FOUND NOT TO BE RESPONSIBLE BECAUSE OF PRIOR UNSATISFACTORY CONTRACT PERFORMANCE WHICH THE CONTRACTING OFFICER DOES NOT ATTRIBUTE TO LACK OF CAPACITY OR CREDIT, THE QUESTION OF COMPETENCY NEED NOT BE SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION. 37 COMP. GEN. 798.

WHILE LECTRODYNE HAS INDICATED IN ITS LETTER OF NOVEMBER 6, 1968, THAT ITS DELAYS IN PERFORMANCE WERE NOT SERIOUS AND THAT THE DELINQUENCIES WERE CORRECTED IN A SHORT TIME WHENEVER IT HAD FALLEN BEHIND SCHEDULE, THIS IS INDICATIVE THAT THE DELAYS WERE ATTRIBUTABLE TO ITS OWN LACK OF PERSEVERANCE. WHILE SOME OF THE PERFORMANCE DEFECTS MAY HAVE BEEN MINOR, THEIR CUMULATIVE EFFECT WAS TO UNDULY INCREASE THE GOVERNMENT'S BURDEN OF ADMINISTRATION. 43 COMP. GEN. 257, 263.