B-167050, AUG. 18, 1969

B-167050: Aug 18, 1969

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CONCLUDED THAT THE PREAWARD SURVEY WAS NOT INACCURATE OR UNFAIR AND THAT DETERMINATION OF LACK OF RESPONSIBILITY IS NOT SUBJECT TO LEGAL OBJECTION. TO COROMATIC INC.: REFERENCE IS MADE TO YOUR LETTER OF MAY 16. WHICH WAS 100 PERCENT SET ASIDE FOR SMALL BUSINESS CONCERNS. THE INVITATION FOR BIDS WAS ISSUED FEBRUARY 11. THREE BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AND WERE OPENED ON MARCH 13. WHICH PROVIDES THAT CONTRACT AWARDS WILL BE MADE ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. A NEGATIVE PREAWARD SURVEY OF COROMATIC WAS RECEIVED SHOWING UNSATISFACTORY PURCHASING AND SUBCONTRACTING POLICIES. YOUR COMPANY WAS DETERMINED NOT TO BE A RESPONSIBLE OFFEROR BY THE CONTRACTING OFFICER AND YOUR BID WAS REJECTED.

B-167050, AUG. 18, 1969

BID PROTEST - BIDDER RESPONSIBILITY - NEGATIVE PREAWARD SURVEYS DECISION TO COROMATIC, INC., LOW BIDDER, DENYING PROTEST AGAINST AWARD TO THE A-AND-K MANUFACTURING CO., INC., FOR A RIGGING KIT CONTROL SYSTEM TO DEPARTMENT OF AIR FORCE AND REJECTION OF LOW BID BECAUSE OF UNSATISFACTORY PERFORMANCE RECORD AND INABILITY TO MEET REQUIRED DELIVERY SCHEDULE. CONCLUDED THAT THE PREAWARD SURVEY WAS NOT INACCURATE OR UNFAIR AND THAT DETERMINATION OF LACK OF RESPONSIBILITY IS NOT SUBJECT TO LEGAL OBJECTION.

TO COROMATIC INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1969, PROTESTING THE AWARD OF A CONTRACT TO THE A-AND-K MANUFACTURING COMPANY, INC., FOR PROCUREMENT OF A RIGGING KIT CONTROL SYSTEM UNDER INVITATION FOR BIDS F41608-69-B-1113, WHICH WAS 100 PERCENT SET ASIDE FOR SMALL BUSINESS CONCERNS.

THE INVITATION FOR BIDS WAS ISSUED FEBRUARY 11, 1969, AND SOLICITED OFFERS FROM A TOTAL OF 27 SOURCES. THREE BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AND WERE OPENED ON MARCH 13, 1969. THE ABSTRACT OF BIDS REVEALED THE FOLLOWING PRICES:

BIDDER PRICE

A-AND-K MFG. CO. $17,175.00

A.C. BALL CO. 8,927.50

COROMATIC INC. 8,875.00

PURSUANT TO PARAGRAPH 1-902 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH PROVIDES THAT CONTRACT AWARDS WILL BE MADE ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS, THE CONTRACTING OFFICER REQUESTED THAT PREAWARD SURVEY REPORTS BE MADE. A NEGATIVE PREAWARD SURVEY OF COROMATIC WAS RECEIVED SHOWING UNSATISFACTORY PURCHASING AND SUBCONTRACTING POLICIES, AN UNSATISFACTORY PERFORMANCE RECORD AND INABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. ON THIS BASIS, YOUR COMPANY WAS DETERMINED NOT TO BE A RESPONSIBLE OFFEROR BY THE CONTRACTING OFFICER AND YOUR BID WAS REJECTED. SIMILARLY, A NEGATIVE PREAWARD SURVEY WAS RECEIVED ON THE A.C. BALL CO. AND, CONSEQUENTLY, THE CONTRACTING OFFICER ALSO DETERMINED THAT COMPANY NOT TO BE A RESPONSIBLE BIDDER. THE REMAINING BIDDER, A-AND-K MANUFACTURING COMPANY, INC., WAS SUBSEQUENTLY FOUND TO BE RESPONSIBLE AND AWARD WAS MADE TO THAT COMPANY.

IN YOUR LETTER OF PROTEST YOU MAINTAIN THAT YOU ARE "A RESPONSIBLE, RESPONSIVE, COMPETITIVE MANUFACTURER ABLE TO FURNISH THESE ITEMS IN ACCORDANCE WITH THE TERMS OF THE ABOVE SOLICITATION," AND THAT THE SURVEY REPORT DONE ON YOUR FIRM WAS IRREGULAR, INACCURATE AND PRESENTED IN A PREJUDICIAL MANNER.

THE PREAWARD SURVEY REPORT REVEALED THAT OF SIX CONTRACTS COMPLETED BY COROMATIC FROM OCTOBER 1, 1968, TO MARCH 28, 1969, FIVE WERE DELINQUENT FOR PERIODS RANGING FROM 21 TO 77 DAYS. OF 15 CONTRACTS BEING ADMINISTERED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, SPRINGFIELD, NEW JERSEY, EIGHT WERE EITHER DELINQUENT OR IN AN ANTICIPATED DELINQUENT STATUS. DELAY CAUSE IN ALL CASES WAS MAINLY ATTRIBUTED TO LATE DELIVERY OF VENDOR MATERIAL, FAILURE TO SATISFY FIRST ARTICLE REQUIREMENTS AND INADEQUATE PRODUCTION PLANNING AND SCHEDULING.

WITHOUT FURTHER DISCUSSION OF THE DETAILS OF THE PREAWARD SURVEY IT WAS, AS PREVIOUSLY STATED, NEGATIVE IN PRACTICALLY ALL RESPECTS. THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE QUESTION AS TO THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR IS PRIMARILY FOR DETERMINATION BY THE PROCUREMENT OFFICERS CONCERNED. THE QUESTION OF A PROSPECTIVE CONTRACTOR'S PROBABLE APPLICATION OF SUFFICIENT TENACITY AND PERSEVERANCE TO ASSURE COMPLIANCE WITH A REQUIRED DELIVERY SCHEDULE, AND WHETHER THE PROSPECTIVE CONTRACTOR MEETS OTHER MINIMUM STANDARDS OF RESPONSIBILITY, INVOLVES A FORECAST WHICH MUST OF NECESSITY BE A MATTER OF JUDGMENT. HARRY FRIEND V FREDERICK B. LEE, 221 F.2D 96. 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 OFFICERS INVOLVED WHO SHOULD BE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, WHO MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED IN OBTAINING REQUIRED PERFORMANCE, AND WHO MUST MAINTAIN DAY- TO-DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF.

BECAUSE REASONABLE MEN MAY WELL DISAGREE IN SUCH EVALUATION, OUR OFFICE HAS ADOPTED THE RULE THAT WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING AGENCY UNLESS IT IS SHOWN THAT THE AGENCY'S DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE DEMONSTRATING THE BIDDER'S LACK OF RESPONSIBILITY. 39 COMP. GEN. 468, 472. IN THIS INSTANCE WE FIND NO EVIDENCE THAT THE PREAWARD SURVEY WAS IRREGULAR, INACCURATE OR UNFAIR, AND, ON THE BASIS OF THE PRESENT RECORD, WE CONCLUDE THAT THE DETERMINATIONS OF YOUR LACK OF RESPONSIBILITY ARE NOT SUBJECT TO LEGAL OBJECTION. 43 COMP. GEN. 228; B-165386, NOVEMBER 26, 1968.