B-166847, B-166887, DEC. 29, 1969

B-166847,B-166887: Dec 29, 1969

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WAS NOT REFERRED TO SMALL BUSINESS ADMINISTRATION BECAUSE OF URGENCY OF ARMY REQUIREMENTS. RULE THAT ADMINISTRATIVE DETERMINATION OF CONTRACTOR'S QUALIFICATIONS AND RESPONSIBILITY WILL NOT BE QUESTIONED. IS FOR APPLICATION. IT IS PROPERLY LEFT LARGELY TO SOUND ADMINISTRATIVE DISCRETION OF CONTRACTING OFFICER WHO IS IN BEST POSITION TO ASSESS RESPONSIBILITY AND MUST BEAR MAJOR BRUNT OF DIFFICULTIES ENCOUNTERED IN OBTAINING CONTRACT PERFORMANCE. CONTRACTING OFFICER WHO DETERMINED PROTESTANT WAS NONRESPONSIBLE OFFEROR AND BIDDER UNDER URGENT ARMY REQUIREMENTS FOR MODIFICATION KITS AND CELL ASSEMBLIES. WAS JUSTIFIED IN REQUESTING SUCH SURVEYS SINCE ASPR 1-905.4 (C) PROVIDES THAT IRRESPECTIVE OF APPARENT SUFFICIENCY OF AVAILABLE INFORMATION INDICATING RESPONSIBILITY RESPECTING STANDARD IN ASPR 1-903.1 (I) AND (II).

B-166847, B-166887, DEC. 29, 1969

BIDDERS--QUALIFICATIONS--PRIOR UNSATISFACTORY SERVICE WHERE PREAWARD SURVEYS, BASED UPON PROTESTANT'S UNSATISFACTORY PERFORMANCE AND FAILURE TO MEET DELIVERY SCHEDULES ON EXISTING CONTRACTS, RECOMMENDED NO AWARD, AND PROTESTANT'S NONRESPONSIBILITY, PURSUANT TO ASPR 1-705.4 (C) (IV), WAS NOT REFERRED TO SMALL BUSINESS ADMINISTRATION BECAUSE OF URGENCY OF ARMY REQUIREMENTS, RULE THAT ADMINISTRATIVE DETERMINATION OF CONTRACTOR'S QUALIFICATIONS AND RESPONSIBILITY WILL NOT BE QUESTIONED, ABSENT BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE, IS FOR APPLICATION. SINCE DETERMINATION OF CONTRACTOR'S ABILITY TO PERFORM CONTRACT INVOLVES ELEMENT OF FORECAST, IT IS PROPERLY LEFT LARGELY TO SOUND ADMINISTRATIVE DISCRETION OF CONTRACTING OFFICER WHO IS IN BEST POSITION TO ASSESS RESPONSIBILITY AND MUST BEAR MAJOR BRUNT OF DIFFICULTIES ENCOUNTERED IN OBTAINING CONTRACT PERFORMANCE. BIDDERS-- QUALIFICATIONS--PREAWARD SURVEYS--SMALL BUSINESS CONCERNS NOTWITHSTANDING PROTESTANT'S QUESTIONING OF NEED FOR PREAWARD SURVEYS, CONTRACTING OFFICER WHO DETERMINED PROTESTANT WAS NONRESPONSIBLE OFFEROR AND BIDDER UNDER URGENT ARMY REQUIREMENTS FOR MODIFICATION KITS AND CELL ASSEMBLIES, AFTER PREAWARD SURVEYS DISCLOSED PROTESTANT'S FAILURE TO MEET DELIVERY SCHEDULE AND UNSATISFACTORY PERFORMANCE ON EXISTING CONTRACTS, WAS JUSTIFIED IN REQUESTING SUCH SURVEYS SINCE ASPR 1-905.4 (C) PROVIDES THAT IRRESPECTIVE OF APPARENT SUFFICIENCY OF AVAILABLE INFORMATION INDICATING RESPONSIBILITY RESPECTING STANDARD IN ASPR 1-903.1 (I) AND (II), IN PROCUREMENTS WHICH ARE SIGNIFICANT EITHER IN DOLLAR VALUE OR IN CRITICAL NATURE OF REQUIREMENT, CONSIDERATION SHALL BE GIVEN TO REQUESTING CONTRACT ADMINISTRATIVE OFFICE TO VERIFY INFORMATION REGARDING CURRENT WORKLOAD AND FINANCIAL CAPACITY.

TO OPTICS FOR INDUSTRY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST BY TELEGRAMS DATED MAY 2 AND 7, 1969, AS SUPPLEMENTED BY LETTERS, WITH ENCLOSURES, DATED MAY 29, 1969, JUNE 17, 1969, JULY 17, 1969, AND AUGUST 11, 1969, AGAINST THE AWARD OF TWO CONTRACTS BY THE DEPARTMENT OF THE ARMY, UNDER INVITATION FOR BIDS (IFB) NO. DAAA 25-69-B-0330 AND REQUEST FOR QUOTATIONS (RFQ) NO. M1-9- 3D382, ISSUED BY THE FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

THE IFB, ISSUED JANUARY 7(, 1969, PROVIDED FOR THE PROCUREMENT OF 5,021 EACH, MODIFICATION KIT FOR COLLIMATOR M1, WITH AN ASSIGNED 05 PRIORITY DESIGNATOR. THE RFQ, ISSUED JANUARY 31, 1969, REQUESTED QUOTES FOR 100 EACH, CELL ASSEMBLIES, P/N 8289278 FOR USE ON M32 PERISCOPE, WITH AN ASSIGNED 02 PRIORITY DESIGNATOR, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-202.2 (VI), AND PURSUANT TO THE NEGOTIATING AUTHORITY CONTAINED IN 10 U.S.C 2304 (A) (2). YOUR FIRM BECAME THE LOW RESPONSIVE BIDDER AND OFFEROR BY VIRTUE OF ALLEGED MISTAKES BY THE APPARENT LOW BIDDER AND LOW OFFEROR.

THE FACTS IN THE CASES ARE SET FORTH IN THE ADMINISTRATIVE REPORTS FROM THE RESPECTIVE CONTRACTING OFFICERS DATED JUNE 12 AND 16, 1969, COPIES OF WHICH WE FURNISHED TO YOU FOR COMMENT, AND MAY BE SUMMARIZED AS FOLLOWS.

THE IFB WAS OPENED ON FEBRUARY 27, 1969, WITH BIDS RANGING IN UNIT PRICES FROM $9.40 TO $87.50. BECAUSE OF THE WIDE DISPARITY IN THE LOW UNIT PRICE SUBMITTED BY NEPTUNE ELECTRONICS COMPANY, THE CONTRACTING OFFICER ASKED FOR VERIFICATION. NEPTUNE ALLEGED MISTAKE AND WAS ALLOWED TO WITHDRAW ITS BID. YOUR BID UNIT PRICE AT $15.57 BECAME THE LOW RESPONSIVE BID. PRIOR TO RECEIVING PERMISSION REGARDING THE WITHDRAWAL OF NEPTUNE'S BID AND IN ORDER TO AVOID FURTHER DELAY, A PRE AWARD SURVEY WAS REQUESTED BY THE CONTRACTING OFFICER ON YOUR FIRM. THIS SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), MILWAUKEE ON MARCH 28, 1969, AND A RECOMMENDATION OF NO AWARD WAS MADE. THE BASIS STATED BY THE SURVEY TEAM FOR THIS RECOMMENDATION WAS YOUR FAILURE TO MEET REQUIRED DELIVERY SCHEDULES AND YOUR UNSATISFACTORY PERFORMANCE RECORD ON EXISTING CONTRACTS. THEREAFTER, ON APRIL 16, 1969, THE CONTRACTING OFFICER MADE A DETERMINATION THAT YOUR FIRM WAS NOT RESPONSIBLE WITHIN THE STANDARDS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903, 1 904. IT WAS FURTHER DETERMINED THAT THERE WAS AN URGENT REQUIREMENT FOR THE INSTANT PROCUREMENT; CONSEQUENTLY, PURSUANT TO ASPR 1-705.4 (C) (IV), THE MATTER OF YOUR CONCERN'S RESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION. THE CONTRACT WAS AWARDED TO MARK OPTICS, THE THIRD LOW BIDDER, ON APRIL 30, 1969, AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER.

THE FACTUAL SITUATION CONCERNING THE RFQ PARALLELS THAT OF THE ABOVE IFB. A PURCHASE ORDER WAS AWARDED TO WASHINGTON SCIENTIFIC INDUSTRIES, INC. ON FEBRUARY 24, 1969, AS THE LOW OFFEROR IN THE AMOUNT OF $1,562. HOWEVER, A LETTER FROM THIS CONTRACTOR LATER FURNISHED EVIDENCE OF A MISTAKE IN HIS QUOTATION AND HIS REQUEST FOR CANCELLATION WAS GRANTED. YOUR FIRM HAD SUBMITTED THE SECOND LOWEST QUOTATION IN THE AMOUNT OF $2,733. A PRE-AWARD SURVEY CONDUCTED BY THE DCASD, MILWAUKEE, ON APRIL 15, 1969, RESULTED IN A RECOMMENDATION OF NO AWARD TO YOUR FIRM. THE SAME BASIS WAS STATED AS THAT APPLIED UNDER THE IFB ABOVE AS REASONS FOR THE DETERMINATION THAT NO AWARD SHOULD BE MADE TO YOUR FIRM. ACCORDINGLY, ON APRIL 25, 1969, THE CONTRACTING OFFICER, RELYING ON THE SAME AUTHORITY AS ABOVE, DETERMINED YOUR FIRM TO BE NOT RESPONSIBLE, AND AGAIN, PURSUANT TO ASPR 1-705.4 (C), THE MATTER OF YOUR CONCERN'S RESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION. THE AWARD OF CONTRACT WAS MADE TO GRAYCO OPTICAL CORPORATION, THE THIRD LOW OFFEROR, ON MAY 2, 1969, AS THE LOW RESPONSIVE AND RESPONSIBLE OFFEROR.

IN BOTH YOUR SUPPLEMENTAL LETTERS OF PROTEST YOU ALLEGE THAT THE CONTRACTING OFFICERS RELIED ON GROSSLY ERRONEOUS RECOMMENDATIONS FROM DCASD, MILWAUKEE, IN MAKING THEIR DETERMINATIONS OF NO AWARD AND NONRESPONSIBILITY. YOU FAIL, HOWEVER, TO SET OUT WHEREIN THE FACTS IN THE CASES ARE ERRONEOUS. IN THIS REGARD, OUR OFFICE, BY LETTER DATED JULY 24, 1969, FURNISHED YOU COPIES OF THE PRE-AWARD SURVEYS FOR YOUR COMMENTS.

THE RECORD UPON WHICH THE CONTRACTING OFFICERS BASED THEIR DETERMINATIONS OF NONRESPONSIBILITY MAY BE SUMMARIZED FROM THE FOLLOWING HISTORY OF PAST AND CURRENT CONTRACTS AWARDED TO YOUR FIRM:

"RECORDS IN DCASD-MILWAUKEE INDICATE THAT BIDDER COMPLETED EIGHT GOVERNMENT CONTRACTS SINCE JANUARY 1968. FOUR OF THE EIGHT CONTRACTS WERE DELIVERED LATE. A SUMMARY OF THE FOUR LATE CONTRACTS FOLLOWS:

"CONTRACT DAAA25-68-C-0142, EYEPIECE ASSEMBLY 6650-767-3624, 1,200 UNITS WAS DELIVERED 37 DAYS LATE. THE LATE DELIVERY WAS DUE TO A DRAWING INTERPRETATION WHICH SHOULD HAVE BEEN CLARIFIED DURING PREPARATION OF THE BID. THERE WAS ALSO A PROBLEM ON ASSEMBLING THE UNIT BECAUSE OF PERSONNEL CHANGES. THE DELAY WAS THE FAULT OF THE CONTRACTOR.

"CONTRACT F09603-67-C-2623, FLANGED DOME, 1270-344-2866, 28 UNITS WAS DELIVERED 24 DAYS LATE. THE DELAY WAS DUE TO LATE RECEIPT OF VENDOR MATERIAL. THE DELAY WAS THE FAULT OF THE CONTRACTOR.

"CONTRACT DAAA25-68-C-0418, COLLIMATOR PROJECTOR, 4931-757-3291, 94 UNITS, FIRST ARTICLE WAS DUE 23 AUG 68. ENGINEERING CHANGE ORDER FT 8603 DATED 29 NOV 68 RESULTED IN MODIFICATION P001, EFFECTIVE DATE, 5 FEB 68 REVISING THE CONTRACT DELIVERY SCHEDULE TO 18 FEB 69. THE CONTRACTOR SUBMITTED FIRST ARTICLE 27 JAN 69. THE CONTRACTOR WAS DELINQUENT IN SUBMITTING THE FIRST ARTICLE FOR THE PERIOD 23 AUG 68 TO 29 NOV 68, THE DATE OF THE CHANGE ORDER. CONTRACTOR STATED THAT THE DELAY IN SUBMITTING THE FIRST ARTICLE WAS DUE TO INCOMPLETE SPECIFICATIONS AND DRAWINGS. DURING A PRE-AWARD SURVEY CONDUCTED ON 11 DEC 67, MR. ANTHONY MISTOLD THE INDUSTRIAL SPECIALIST THAT HE HAD ALL SPECIFICATIONS AND DRAWINGS AND WAS FAMILIAR WITH TECHNICAL DATA REQUIREMENTS. THE 98 DAY DELAY IN SUBMITTING THE FIRST ARTICLE IN ACCORDANCE WITH THE ORIGINAL CONTRACT DELIVERY SCHEDULE IS ATTRIBUTABLE TO THE CONTRACTOR.

"CONTRACT DAA031-68-C-0531, BORE SIGHT, 1240-690-8811, 204 UNITS, $81,600 INITIAL DELIVERY 25 AUG 68 FOR 99 UNITS. THE DELAY WAS DUE TO LATE RECEIPT OF NYLON STRAPS FROM THE VENDOR. AFTER RECEIPT OF THE STRAPS THE CONTRACTOR WAS NOT ABLE TO COMPLY WITH THE TENSION SPECIFICATIONS BECAUSE THE STRAPS SLIPPED THROUGH THE CLAMPS UNDER TENSION. THE DRAWING DID NOT INDICATE A MINIMUM STRAP THICKNESS. CONTRACT MODIFICATION P003 EFFECTIVE DATE, 24 MAR 69, DELETED THE STRAP ASSY, RING AND SNAP AND REVISED THE DELIVERY SCHEDULE TO 1 APR 69, 161 UNITS AND 22 APR 69, 43 UNITS. THE TOTAL CONTRACT QUANTITY OF 204 UNITS WAS SHIPPED 8 APR 69. ONE HUNDRED SIXTY ONE UNITS WERE SHIPPED 7 DAYS LATE DUE TO CONTRACTOR'S LACK OF TENACITY AND PERSEVERANCE IN MEETING DELIVERY SCHEDULES. OVERALL POOR PERFORMANCE ON THIS CONTRACT IS PARTLY THE FAULT OF THE GOVERNMENT AND PARTLY THE FAULT OF THE CONTRACTOR.

"BIDDER'S PERFORMANCE SINCE JAN 1968 IS UNSATISFACTORY.

"PERFORMANCE RECORD ON CURRENT CONTRACTS:

"BIDDER HAS SIX GOVERNMENT CONTRACTS UNDER COGNIZANCE OF DCASD MILWAUKEE AS INDICATED IN SECTION X, THREE ARE DELINQUENT. THE LATE CONTRACTS ARE SUMMARIZED BELOW:

"CONTRACT N00600-68-C-0109, 24" TELESCOPE TUBE ASSEMBLY, 1 UNIT, $21,700 WAS DUE 5 SEPT 68. CONTRACTOR WAS UNABLE TO SOLVE OPTICAL PROBLEMS IN A TIMELY MANNER. THIS DELAY IS THE FAULT OF THE CONTRACTOR. THIS TELESCOPE IS APPROXIMATELY EIGHT FEET LONG AND ONE OF THE LARGEST UNITS BUILT AT THE CONTRACTOR'S PLANT.

"CONTRACT DAAG25-69-C-0204, REFLECTOR AIMING POST, 1270-755-4902, 660 UNITS, $12,771 WAS DUE 29 DEC. 68. DELAY IS DUE TO NONRECEIPT OF GLASS FROM THE SUBCONTRACTOR, CORNING GLASS WORKS. SUBCONTRACTOR OBTAINING A SPOTTY CONDITION ON THE GLASS DURING CHEMCORIZING PROCESS. THIS DELAY IS ATTRIBUTABLE TO THE CONTRACTOR.

"CONTRACT DAAAG25-69-C-0249, FIELD LENS, 380 UNITS, $4339, WAS DUE 27 MAR 69. GOVERNMENT-FURNISHED BLANK PRESSINGS WERE DELIVERED TO THE CONTRACTOR 30 DEC 68, 19 DAYS LATE. CONTRACTOR ESTIMATES SHIPPING THE CONTRACT QUANTITY FROM THE PACKAGER NOT LATER THAN 30 APR. 69. CONTRACTOR HAD MANUFACTURING AND QUALITY CONTROL PROBLEMS. THE DELAY IS PARTLY THE FAULT OF THE CONTRACTOR AND PARTLY THE FAULT OF THE CONTRACTOR AND PARTLY THE FAULT OF THE GOVERNMENT. A PRE-AWARD SURVEY FOR THIS CONTRACT WAS CONDUCTED ON 6 NOV 68. THE FOLLOWING STATEMENT FROM THE SURVEY DESCRIBES THE CONTRACTOR'S PERFORMANCE ON TWO RELATED CONTRACTS THAT WERE DELIVERED WITHIN THE CONTRACT TIME FRAME. 'THE BID ITEM IS A SIMPLE UNIT CONSISTING OF TWO LENSES. THERE ARE NO UNUSUAL OPTICAL PROBLEMS AND NO METAL PARTS. THE BIDDER PRODUCED 640 UNITS IN 120 DAYS OR 5.33 UNITS PER DAY UNDER CONTRACT DAAG11-68-C-1062 AND 910 UNITS IN 150 DAYS OR 6.06 UNITS PER DAY UNDER CONTRACT DAAA25-68-C 0029. THIS IFB STIPULATES 380 UNITS IN 120 DAYS OR 3.16 UNITS PER DAY WHICH IS WELL WITHIN THE BIDDER'S PRODUCTION CAPABILITY. ALSO, THE BIDDER WILL HAVE SUFFICIENT OPEN TIME TO PRODUCE THE BID ITEM WITHIN THE STIPULATED 120 DAY TIME FRAME.' ON THE BASIS OF COMPLETING ONLY FIVE CONTRACT UNITS PER DAY, THE CONTRACTOR SHOULD HAVE COMPLETED THIS CONTRACT IN 76 DAYS AFTER RECEIPT OF THE GOVERNMENT- FURNISHED BLANK PRESSINGS OR 17 MAR 69. THE CONTRACTOR FAILED TO APPLY THE NECESSARY TENACITY AND PERSEVERANCE TO MAKE DELIVERIES WITHIN THE CONTRACT TIME FRAME.

"BIDDER'S PERFORMANCE ON CURRENT CONTRACTS IS UNSATISFACTORY."

IN VIEW OF THE RECORD BEFORE THIS OFFICE, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICERS RELIED UPON ERRONEOUS FINDINGS. NOR CAN WE CONCLUDE THAT THE CONTRACTING OFFICERS' NEGATIVE DETERMINATIONS CONCERNING YOUR FIRM'S TENACITY OR PERSEVERANCE UNDER ASPR 1-903.1 (III) WAS BASED ON OTHER THAN SUBSTANTIAL EVIDENCE.

DETERMINATION OF THE QUALIFICATIONS AND RESPONSIBILITY OF A PROPOSED CONTRACTOR IS PRIMARILY THE FUNCTION OF THE PROCUREMENT AGENCY (37 COMP. GEN. 430; ID. 793; 33 ID. 248; 39 ID. 468; ID. 705, 711; 43 ID. 228), AND SUCH DETERMINATION WILL NOT BE QUESTIONED BY THIS OFFICE IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 36 COMP. GEN. 42; 37 ID. 430; ID. 798; 38 ID. 131; ID. 778. THIS RULE HAS BEEN APPLIED WHERE THE EVIDENCE OF A DEFICIENT MOTIVATION TO DO AN ACCEPTABLE JOB CONSISTS OF MINOR FAULTS WHICH CUMULATIVELY RESULT IN UNDULY INCREASING THE GOVERNMENT'S BURDEN OF ADMINISTERING THE CONTRACT. 43 COMP. GEN. 257, 263.

THUS, THIS OFFICE HAS FREQUENTLY HELD THAT THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S PROBABLE ABILITY TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH MUST, OF NECESSITY, BE A MATTER OF JUDGMENT. SUCH JUDGMENT SHOULD, OF COURSE, BE BASED ON FACT AND REACHED IN GOOD FAITH; HOWEVER, IT IS ONLY PROPER THAT IT BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICER INVOLVED SINCE HE IS IN THE BEST POSITION TO ACCESS RESPONSIBILITY. ALSO, HE IS THE OFFICIAL WHO MUST BEAR THE MAJOR BRUNT OF DIFFICULTIES EXPERIENCED IN OBTAINING REQUIRED PERFORMANCE AND THE ONE WHO MUST MAINTAIN DAY-TO-DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF. 39 COMP. GEN. 705, 711; 43 ID. 228, 230; B 161765, AUGUST 31, 1967.

WE HAVE ALSO REVIEWED AND CONSIDERED YOUR SUBSTANTIVE QUESTIONS: (1) DID DCASD, MILWAUKEE COMPLY WITH ASPR K-302 (B) (3) WHICH SPECIFICALLY PROVIDES THAT ANY DEFICIENCY AREA MUST AFFECT THE ABILITY OF THE CONTRACTOR TO PERFORM THE PROSPECTIVE CONTRACT INVOLVED, AND (2) ON WHAT BASIS DID THE FRANKFORD ARSENAL PURCHASING OFFICE CONSIDER THE NEED FOR A PRE-AWARD SURVEY WAS COMMENSURATE WITH THE DOLLAR VALUE AND COMPLEXITY OF THE PROCUREMENT?

WITH RESPECT TO THE FIRST QUESTION THE PRE-AWARD SURVEYS SHOW THE FOLLOWING COMPLIANCE WITH ASPR K-302 (B) (3). UNDER THE IFB SURVEY IT STATES:

"ABILITY TO MEET REQUIRED SCHEDULE:

"THE FIRST 251 UNITS ARE DUE 150 DAYS AFTER DATE OF CONTRACT AND 250 UNITS PER MONTH THEREAFTER UNTIL CONTRACT COMPLETION. ONE MODIFICATION KIT CONSISTS OF THE FOLLOWING FIVE BASIC COMPONENTS: RETAINER, SET SCREWS, WINDOW ASSEMBLY, CHAIN ASSEMBLY AND SPECIAL PURPOSE CABLES.

"BIDDER'S PERFORMANCE HAS GENERALLY BEEN SATISFACTORY ON CONTRACTS INVOLVING LENSES ONLY, HOWEVER, BIDDER'S PERFORMANCE ON CONTRACT DAAG25 69 -C-0249 DUE 27 MARCH 1969 IS UNSATISFACTORY BECAUSE OF MANUFACTURING AND QUALITY CONTROL PROBLEMS. THIS CONTRACT IS ONE OF THE SIMPLEST LENS UNITS MANUFACTURED BY THE BIDDER. IT IS THE OPINION OF THE INDUSTRIAL SPECIALIST THAT THE BIDDER'S PRODUCTION CONTROL HAS DETERIORATED IN RECENT MONTHS RESULTING IN A DELINQUENCY ON A SIMPLE LENS CONTRACT.

"BIDDER HAS A PRODUCTION PLAN THAT INDICATES TIMELY COMPLETION OF UNITS FOR SHIPMENTS AS REQUIRED IN THE BID PACKAGE. THE INDUSTRIAL SPECIALIST IS OF THE OPINION THAT THE PRODUCTION PLAN WAS PREPARED FOR THIS PRE-AWARD SURVEY RATHER THAN FOR PERFORMANCE ON THE BID ITEM AND THAT PERFORMANCE ON THE BID ITEM WILL BE SCHEDULED AROUND COMMERCIAL WORK RATHER THAN SHIPPING DATES IN THE BID PACKAGE. "THE FIVE BASIC COMPONENTS FOR THE BID ITEM INVOLVES MATERIALS TO BE PURCHASED FROM SIX VENDORS. BIDDER DOES NOT DISPLAY THE NECESSARY TENACITY TO SATISFACTORILY PERFORM ON A CONTRACT INVOLVING FIVE COMPONENTS AND SIX VENDORS. THE INDUSTRIAL SPECIALIST IS OF THE OPINION THAT THE BIDDER WILL NOT CONSISTENTLY FOLLOW ANY PRODUCTION PLAN FOR THE BID ITEM THAT WILL INSURE TIMELY DELIVERIES AND THAT THE BIDDER WILL BE CONSISTENTLY DELINQUENT DURING THE 25 MONTH OVERALL TIME FRAME IN THE BID PACKAGE."

UNDER THE RFQ SURVEY IT STATES: "ABILITY TO MEET REQUIRED SCHEDULE:

"ONE HUNDRED UNITS ARE DUE 150 DAYS AFTER DATE OF AWARD. THE BID ITEM IS AN ASSEMBLY CONSISTING OF A LENS DOUBLET, A RETAINING RING AND AN ALUMINUM ALLOY CELL. BIDDER'S PRODUCTION PLAN INDICATES THAT THE FINAL SHIPMENT OF THE BID ITEM COULD BE ACCOMPLISHED IN 85 DAYS AFTER RECEIPT OF CONTRACT. BIDDER HAS A HISTORY OF PRODUCTION PLANNING FOR PRE-AWARD SURVEYS THAT BEARS NO RELATION TO PRODUCTION PERFORMANCE ON CONTRACTS FOR THE BID ITEMS. BIDDER'S PRE-AWARD SURVEY PRODUCTION PLAN IS ALWAYS GEARED TO THE TIME FRAME IN THE BID PACKAGE REGARDLESS OF THE NATURE OF THE BID ITEM AND THE VOLUME OF CONCURRENT COMMERCIAL WORK. BIDDER'S PRODUCTION CONTROL HAS DETERIORATED DURING THE PAST SIX MONTHS. IT IS THE OPINION OF THE INDUSTRIAL SPECIALIST THAT PRODUCTION ON THE BID ITEM WILL BE SCHEDULED AROUND COMMERCIAL WORK RATHER THAN THE DELIVERY DATE IN THE AWARDED CONTRACT. ON THE BASIS OF THE BIDDER'S UNSATISFACTORY PERFORMANCE ON CURRENT AND COMPLETED CONTRACTS THE INDUSTRIAL SPECIALIST IS OF THE OPINION THAT THE BIDDER WILL NOT MEET THE DELIVERIES STIPULATED IN THE BID PACKAGE."

IN REGARD TO YOUR QUESTION NO. (2) ABOVE, ASPR 1-905.4 (B) REQUIRES THE PERFORMANCE OF A PRE-AWARD SURVEY, CONSISTING OF AN EVALUATION BY A CONTRACT ADMINISTRATION OFFICE OF A PROSPECTIVE CONTRACTOR'S CAPABILITY TO PERFORM UNDER THE TERMS OF A PROPOSED CONTRACT, WHEN THE INFORMATION AVAILABLE TO THE PURCHASING OFFICE IS NOT SUFFICIENT TO ENABLE THE CONTRACTING OFFICER TO MAKE A DETERMINATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. THE DETAIL OF THE SURVEY IS OUTLINED BY THE CONTRACTING OFFICER IN HIS REQUEST COMMENSURATE WITH THE DOLLAR VALUE AND COMPLEXITY OF THE PROCUREMENT. IN ADDITION, ASPR 1-905.4 (C) PROVIDES THAT REGARDLESS OF THE APPARENT SUFFICIENCY OF AVAILABLE INFORMATION INDICATING RESPONSIBILITY WITH RESPECT TO THE STANDARD SET FORTH IN ASPR 1 -903.1 (I) AND (II), IN PROCUREMENTS WHICH ARE SIGNIFICANT EITHER IN DOLLAR VALUE OR IN THE CRITICAL NATURE OF THE REQUIREMENT, CONSIDERATION SHALL BE GIVEN TO REQUESTING THE CONTRACT ADMINISTRATION OFFICE TO VERIFY INFORMATION REGARDING CURRENT WORKLOAD AND FINANCIAL CAPACITY.

UNDER SUCH REGULATIONS, THE CONTRACTING OFFICER'S REQUEST FOR A PRE AWARD SURVEY OF YOUR FACILITIES WAS JUSTIFIED BY THE CRITICAL NATURE OF THE PROCUREMENT NEED ALONE. FURTHER THE RECORD SHOWS THAT THE PRE AWARD SURVEYS MADE ON THE FIRMS OF MARK OPTICS AND GRAYCO OPTICAL FOUND THEM TO BE FULLY CAPABLE OF MEETING THE REQUIRED DELIVERY SCHEDULES.

IN VIEW OF THE ABOVE EVIDENCE THIS OFFICE FINDS NO REASON TO DISAGREE WITH THE CONTRACTING OFFICER'S DETERMINATIONS. YOUR PROTESTS, ACCORDINGLY, ARE DENIED.