B-167245, AUG. 18, 1969

B-167245: Aug 18, 1969

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DETERMINATION THAT LOW OFFEROR COULD OBTAIN MOTORS TO MEET REQUIRED DELIVERY SCHEDULE WHICH DETERMINATION WAS MADE OF CONTRACTING OFFICER'S KNOWLEDGE OF CONTRACTOR'S PERFORMANCE CAPABILITIES. NO OBJECTION TO AWARD WILL BE MADE. SINCE PROPOSED CONTRACTOR'S OFFER WAS IN COMPETITIVE RANGE. PREAWARD SURVEY UNDER ASPR SHOULD HAVE BEEN REQUESTED. INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER PURSUANT TO SOLICITATION NO. THE SOLICITATION WAS ISSUED ON NOVEMBER 6. YOUR FIRM AND BOGUE ELECTRIC MANUFACTURING COMPANY WERE SOLICITED AND SUBMITTED PROPOSALS. STEWART-WARNER WAS DETERMINED THE LOW OFFEROR. THE CONTRACTING OFFICER SIGNED A DETERMINATION THAT STEWART-WARNER WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF ARMED SERVICES PROCUREMENT REGULATION 1-902.

B-167245, AUG. 18, 1969

BID PROTEST - DELIVERY SCHEDULE COMPLIANCE - BIDDER RESPONSIBILITY DECISION TO WALTER KIDDIE AND CO., INC., PROTESTING AGAINST THE AWARD OF A CONTRACT TO STEWART-WARNER, LOW OFFEROR, FOR PROCUREMENT OF 400 RECIPROCATING, POWER-DRIVEN, COMPRESSORS FOR 152MM GUNLAUNCHERS FOR ARMY WATERVLIET ARSENAL ON BASIS THAT SUCCESSFUL OFFEROR CANNOT MEET DELIVERY SCHEDULE. DETERMINATION THAT LOW OFFEROR COULD OBTAIN MOTORS TO MEET REQUIRED DELIVERY SCHEDULE WHICH DETERMINATION WAS MADE OF CONTRACTING OFFICER'S KNOWLEDGE OF CONTRACTOR'S PERFORMANCE CAPABILITIES, NO OBJECTION TO AWARD WILL BE MADE. HOWEVER, SINCE PROPOSED CONTRACTOR'S OFFER WAS IN COMPETITIVE RANGE, PREAWARD SURVEY UNDER ASPR SHOULD HAVE BEEN REQUESTED.

TO WALTER KIDDE AND COMPANY, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER PURSUANT TO SOLICITATION NO. DAAF07-69-R 0052, AS AMENDED, ISSUED BY THE UNITED STATES ARMY, WATERVLIET ARSENAL, WATERVLIET, NEW YORK, FOR THE PROCUREMENT OF 400 RECIPROCATING, POWER DRIVEN, COMPRESSORS FOR 152MM GUNLAUNCHERS.

THE SOLICITATION WAS ISSUED ON NOVEMBER 6, 1968, AS A NEGOTIATED PROCUREMENT, HAVING BEEN ASSIGNED AN ISSUE PRIORITY DESIGNATOR 2 UNDER THE UNIFORM MATERIEL MOVEMENT AND ISSUE SYSTEM. TWO PROSPECTIVE SUPPLIERS, RECOMMENDED BY THE PROJECT MANAGER, YOUR FIRM AND BOGUE ELECTRIC MANUFACTURING COMPANY WERE SOLICITED AND SUBMITTED PROPOSALS. THERE FOLLOWED A SERIES OF EVENTS, NOT PERTINENT TO THE ISSUE RAISED BY YOUR PROTEST, RESULTING IN SEVERAL AMENDMENTS TO THE SOLICITATION AND EXTENSION OF THE TIME FOR RECEIPT OF PROPOSALS. IN THE MEANTIME, STEWART-WARNER CORPORATION ALSO SUBMITTED A PROPOSAL. ON MAY 23, 1969, THE CONTRACTING OFFICER ADVISED ALL THREE FIRMS THAT NEGOTIATIONS WOULD BE CLOSED AS OF JUNE 10, 1969, AND "YOUR BEST AND FINAL OFFER" MUST BE SUBMITTED BY THAT DATE. STEWART-WARNER WAS DETERMINED THE LOW OFFEROR. ON JUNE 12, 1969, THE CONTRACTING OFFICER SIGNED A DETERMINATION THAT STEWART-WARNER WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF ARMED SERVICES PROCUREMENT REGULATION 1-902. AWARD WAS MADE TO STEWART-WARNER ON JUNE 16, 1969.

BY TELEGRAM DATED JUNE 17, 1969, YOU PROTESTED THE AWARD TO OUR OFFICE, CONTENDING THAT STEWART-WARNER COULD NOT MEET THE REQUIRED DELIVERY SCHEDULE. THIS CONTENTION IS BASED UPON YOUR BELIEF THAT THE ELECTRIC MOTOR DRIVES CANNOT BE OBTAINED FROM A SUBCONTRACTOR IN SUFFICIENT QUANTITIES TO MEET THE DELIVERY SCHEDULE.

THE CONTRACTING OFFICER ADVISES THAT HIS DETERMINATION OF RESPONSIBILITY WAS BASED UPON THE PROCURING ACTIVITY'S KNOWLEDGE OF STEWART-WARNER'S REPUTATION, DUN AND BRADSTREET AND THOMAS REGISTER INFORMATION, AND THE FACT THAT IT WAS CURRENTLY PRODUCING A SIMILAR COMPRESSOR FOR THE GOVERNMENT. HE STATES THAT A COMPLETE PREAWARD SURVEY WAS NOT MADE AS IT WAS URGENT THAT AWARD BE MADE BY JUNE 16, 1969, TO ASSURE RECEIPT OF COMPRESSORS IN TIME TO MEET THE ARSENAL PRODUCTION SCHEDULES. AFTER RECEIPT OF YOUR PROTEST, THE CONTRACTING OFFICER ASKED THE CONTRACTOR FOR INFORMATION AS TO ITS ARRANGEMENTS FOR OBTAINING THE ELECTRIC MOTOR DRIVES. HE WAS ADVISED THAT THE CONTRACTOR PLACED AN ORDER FOR THE MOTORS WITH PESCO PRODUCTS, DIVISION OF BORG-WARNER, ON JUNE 20, 1969, AND PESCO AGREED TO THE FOLLOWING DELIVERY SCHEDULE:

5 UNITS WEEK OF SEPTEMBER 22

25 UNITS BY OCTOBER 1

25 UNITS WEEK OF OCTOBER 13

50 UNITS PER MONTH THEREAFTER

TO COMPLETION.

A WRITTEN OPINION WAS OBTAINED FROM THE CHIEF, PRODUCT ENGINEERING SECTION, THAT PESCO'S DELIVERY SCHEDULE WAS ADEQUATE TO SUPPORT THE CONTRACT DELIVERY SCHEDULE. IN ADDITION, A REPORT WAS OBTAINED FROM THE DEFENSE CONTRACT ADMINISTRATION SERVICES, CLEVELAND, CONFIRMING THE CAPABILITY OF PESCO TO MEET ITS SCHEDULE. A REPORT WAS ALSO OBTAINED FROM DCAS, INDIANAPOLIS, STATING THAT ALTHOUGH STEWART-WARNER HAD BEEN DELINQUENT ON SOME OCCASIONS IN THE PAST, IT HAD RECENTLY SHOWN IMPROVEMENT IN THIS RESPECT AND SHOULD BE CAPABLE OF MEETING THE CONTRACT DELIVERY SCHEDULE.

IT HAS LONG BEEN OUR POSITION THAT IT IS NEITHER THE PROVINCE NOR THE INTENTION OF OUR OFFICE TO DETERMINE THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, SUCH DETERMINATION BEING A QUESTION OF FACT PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER CONCERNED. 45 COMP. GEN. 4; 43 ID. 57; 38 ID. 131; 37 ID. 430. IN THESE AND OTHER DECISIONS WE HAVE TAKEN THE POSITION THAT A DETERMINATION OF RESPONSIBILITY NECESSARILY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION AND JUDGMENT WHICH SHOULD NOT BE DISTURBED BY OUR OFFICE IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS OR NOT BASED UPON SUBSTANTIAL EVIDENCE. IT IS, HOWEVER, THE PROVINCE AND FUNCTION OF OUR OFFICE TO REVIEW THE RECORD BEFORE US TO DETERMINE IF IT REASONABLY SUPPORTS THE CONTRACTING OFFICER'S FINDING. 45 COMP. GEN. 4, SUPRA.

ALTHOUGH WE FIND NO EVIDENCE THAT THE CONTRACTING OFFICER'S DETERMINATION WAS EITHER ARBITRARY OR CAPRICIOUS, WE BELIEVE SOMETHING SHOULD BE SAID ABOUT HIS FAILURE TO REQUEST A PREAWARD SURVEY. IT IS IMPLIED FROM THE CONTRACTING OFFICER'S REPORT THAT EXCEPT FOR THE URGENT NEED TO MAKE AN AWARD BY JUNE 16, HE WOULD HAVE REQUESTED A COMPLETE PREAWARD SURVEY. PREAWARD SURVEYS OF THE OTHER TWO FIRMS HAD BEEN OBTAINED "AT THE TIME OF THE ORIGINAL SOLICITATION" , WHICH WAS IN NOVEMBER 1968. STEWART-WARNER'S PROPOSAL IS DATED APRIL 29, 1969. IT IS OUR OPINION THAT SINCE ITS OFFER WAS IN THE RANGE OF CONSIDERATION FOR AWARD, A PREAWARD SURVEY SHOULD HAVE BEEN REQUESTED SHORTLY THEREAFTER. ASPR 1-905.1 (D); 1-905.2; AND 1-905.4 (B). HOWEVER, SINCE THE CONTRACTING OFFICER APPARENTLY HAD SOME KNOWLEDGE AS TO THE CONTRACTOR'S PERFORMANCE CAPABILITIES, WE ARE NOT INCLINED TO SUBSTITUTE OUR JUDGMENT FOR HIS. ALSO, IT APPEARS FROM THE INFORMATION DEVELOPED AFTER YOUR PROTEST THAT HAD A PREAWARD SURVEY BEEN CONDUCTED AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WOULD HAVE BEEN MADE.

ACCORDINGLY, THERE IS NO BASIS UPON WHICH OUR OFFICE MAY PROPERLY DISTURB THE CONTRACT AWARDED TO STEWART-WARNER.