B-166489, MAY 21, 1969

B-166489, MAY 21, 1969

TO ADVANCED MEASUREMENT INSTRUMENTS INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF MARCH 17, 1969, AND ENCLOSURE, AND MAY 2, 1969, PROTESTING YOUR DISQUALIFICATION FOR THE AWARD UNDER REQUEST FOR QUOTATIONS NO. C9-9-08830-01-C9-CZ, ISSUED BY UNITED STATES ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE REQUESTS FOR QUOTATIONS COVERED AN URGENT REQUIREMENT FOR 1,710 CLIP ASSEMBLIES, FSN 6625-887-9910, AND WERE MAILED ON JANUARY 27, 1969, TO THREE FIRMS. TWO QUOTATIONS WERE RECEIVED, ONE IN THE TOTAL AMOUNT OF $1,111.50 WITH DELIVERY 60 DAYS AFTER RECEIPT OF ORDER, AND YOUR PROPOSAL IN THE TOTAL AMOUNT OF $1,026 WITH DELIVERY 60 DAYS AFTER RECEIPT OF ORDER.

FOLLOWING RECEIPT OF YOUR LOW QUOTATION DATED FEBRUARY 6, 1969, A REQUEST FOR DETERMINATION OF YOUR FIRM'S RESPONSIBILITY WAS SENT TO THE CONTRACTOR EVALUATION BOARD IN VIEW OF THE URGENT DELIVERY SCHEDULE. THE BOARD RECOMMENDED THAT NO AWARD BE MADE TO YOUR FIRM DUE TO LACK OF FINANCIAL CAPABILITY, POOR PERFORMANCE RECORD ON PRIOR CONTRACTS FOR THE PAST 4 YEARS, AND INABILITY TO MEET THE REQUESTED SCHEDULE. THEREAFTER, THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR UNDER THE STANDARDS PRESCRIBED BY PARAGRAPH 1-903 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THEREFORE, THE CONTRACT WAS AWARDED TO BARNETT INSTRUMENT CO., THE NEXT LOWEST OFFEROR, ON FEBRUARY 27, 1969.

YOU QUESTION YOUR FAILURE TO RECEIVE THE AWARD AND THE FACT THAT YOU WERE "NOT NOTIFIED BY DCASR, BOSTON, THAT A PRE-AWARD WAS REQUESTED ON OUR COMPANY FOR THIS ITEM AND TO OUR KNOWLEDGE NO PRE-AWARD SURVEY WAS CONDUCTED AT OUR FACILITY.' THE SECOND BASIS OF YOUR PROTEST IS THAT YOU WERE NOT NOTIFIED OF A NEGATIVE PREAWARD SURVEY OF YOUR FIRM UNTIL AFTER AN AWARD HAD BEEN MADE. THE FINAL POINT RAISED BY YOUR PROTEST IS THAT SINCE THE ITEM IN QUESTION, A CLIP ASSEMBLY,"IS A STOCK ITEM WITH AMI, THIS AWARD WAS NOT IN THE BEST INTEREST OF THE GOVERNMENT.'

ALTHOUGH YOU WERE NOT NOTIFIED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), BOSTON, THAT A PREAWARD SURVEY WAS REQUESTED ON YOUR COMPANY AND THAT TO YOUR KNOWLEDGE NO PREAWARD SURVEY WAS REQUESTED ON YOUR COMPANY AND THAT TO YOUR KNOWLEDGE NO PREAWARD SURVEY WAS CONDUCTED AT YOUR FACILITY, SUCH NOTICE OR THE ABSENCE OF AN ONSITE SURVEY WAS NOT A LEGAL DEFECT IN THE PROCUREMENT PROCESS. ASPR 1-905.4 (A) PROVIDES AS FOLLOWS:

"A PRE-AWARD SURVEY IS AN EVALUATION BY A CONTRACT ADMINISTRATION OFFICE OF A PROSPECTIVE CONTRACTOR'S CAPABILITY TO PERFORM UNDER THE TERMS OF A PROPOSED CONTRACT. SUCH EVALUATION SHALL BE USED BY THE CONTRACTING OFFICER IN DETERMINING THE PROSPECTIVE CONTRACTOR'S RESPONSIBILITY. THE EVALUATION MAY BE ACCOMPLISHED BY USE OF (I) DATA ON HAND, (II) DATA FROM ANOTHER GOVERNMENT AGENCY OR COMMERCIAL SOURCE, (III) AN ON-SITE INSPECTION OF PLANT AND FACILITIES TO BE USED FOR PERFORMANCE ON THE PROPOSED CONTRACT, OR (IV) ANY COMBINATION OF THE ABOVE. * * *"

IN THIS CASE, THE CONTRACTOR EVALUATION BOARD REQUESTED FROM DCASR, BOSTON, INFORMATION REGARDING YOUR FIRM'S PRESENT AND PAST PERFORMANCE HISTORY. THAT OFFICE PROVIDED INFORMATION FROM DATA WHICH WAS AVAILABLE IN ITS FILES. AN ONSITE INSPECTION IS ONLY ONE OF THE MEANS BY WHICH A SURVEY MAY BE CONDUCTED AND THERE IS NO REGULATORY REQUIREMENT THAT THE SURVEYING OFFICE NOTIFY A PROSPECTIVE CONTRACTOR WHEN A SO-CALLED DESK SURVEY IS BEING MADE.

REGARDING YOUR PROTEST THAT YOU WERE NOT NOTIFIED OF THE NEGATIVE SURVEY RESULTS UNTIL AFTER THE AWARD HAD BEEN MADE TO THE OTHER OFFEROR, ASPR 1- 907 PROVIDES THAT PRIOR TO MAKING A DETERMINATION OF RESPONSIBILITY, SUCH DATA, INCLUDING INFORMATION OBTAINED FROM A PREAWARD SURVEY, MAY BE DISCUSSED WITH THE PROSPECTIVE CONTRACTOR AS DETERMINED NECESSARY BY THE PURCHASING OFFICE. IN THIS INSTANCE, THE PROCURING ACTIVITY, FACED WITH AN URGENT SMALL PURCHASE REQUIREMENT UNDER $2,000, DID NOT DETERMINE IT NECESSARY TO DISCUSS WITH YOUR COMPANY ANY OF THE INFORMATION OBTAINED FROM DCASR, BOSTON. SEE ASPR 3-508.2.

YOUR PROTEST TO THE EFFECT THAT THE ITEM IS A STOCK ITEM WITH AMI WAS NOT DISCLOSED IN YOUR QUOTATION; NEITHER DID YOU OFFER AN EARLIER DELIVERY SCHEDULE. PARAGRAPH 4 OF THE REQUEST FOR QUOTATIONS ENTITLED "DELIVERY" REQUESTED THAT CONTRACTORS "QUOTE EARLIEST DELIVERY.' UNLESS A DIFFERENT DELIVERY IS GIVEN BY THE OFFEROR, THE REQUESTED DELIVERY TIME WOULD GOVERN THE EVALUATION OF QUOTATIONS. ON THE BASIS OF YOUR QUOTATION, THE CONTRACTING OFFICE HAD NO WAY OF KNOWING THAT YOU CONSIDERED THE ITEM AS IN STOCK AND HENCE COULD MAKE TIMELY DELIVERY. ASPR 1-902 PROVIDES IN PART:

"* * * WHILE IT IS IMPORTANT THAT GOVERNMENT PURCHASES BE MADE AT THE LOWEST PRICE, THIS DOES NOT REQUIRE AN AWARD TO A SUPPLIER SOLELY BECAUSE HE SUBMITS THE LOWEST BID OR OFFER. * * * THE CONTRACTING OFFICER SHALL MAKE A DETERMINATION OF NONRESPONSIBILITY IF AFTER COMPLIANCE WITH 1-905 AND 1-906, THE INFORMATION THUS OBTAINED DOES NOT INDICATE CLEARLY THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE * * *.'

IT IS WELL SETTLED THAT A DETERMINATION OF RESPONSIBILITY (INCLUDING A BIDDER'S ABILITY TO MAKE DELIVERY WITHIN A CRITICAL TIME PERIOD) IS PRIMARILY THE FUNCTION OF THE CONTRACTING OFFICER AND IS NECESSARILY A MATTER OF JUDGMENT INVOLVING A CONSIDERABLE RANGE OF DISCRETION. 158420, AUGUST 1, 1966; 39 COMP. GEN. 705, 711; 37 ID. 430, 435. ON THE RECORD BEFORE US, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS REASONABLE AND PROPER UNDER THE REGULATIONS AND WAS BASED ON ADVICE AND INFORMATION RECEIVED FROM THE SURVEY OFFICE.

SINCE THE AWARD MADE IS NOT SUBJECT TO LEGAL OBJECTION, YOUR PROTEST IS DENIED.