B-167782, JAN. 21, 1970

B-167782: Jan 21, 1970

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PROTESTANT WHO CONTENDS THAT COMPTROLLER GENERAL SHOULD CONDUCT OWN INVESTIGATION OF PROCUREMENT IS ADVISED THAT DECISIONS IN PROTEST AREA ARE RENDERED AS PART OF AUTHORITY TO CERTIFY THAT THE EXPENDITURE OF APPROPRIATED MONIES ARE LEGAL. GAO DOES NOT HAVE FACILITIES OR AUTHORITY FOR CONDUCTING ADVERSARY HEARINGS. COMPELLING TESTIMONY AND CROSS EXAMINATION UNDER OATH TO RESOLVE WHAT ARE OFTEN TECHNICAL QUESTIONS INVOLVING EXERCISE OF JUDGMENT. INCORPORATED: WE HAVE RECEIVED YOUR LETTER OF DECEMBER 10. F04606-69-R 0524 WAS DENIED. ALLEGES THAT CERTAIN MATTERS PERTAINING TO YOUR PROTEST WERE IMPROPERLY HANDLED BY THIS OFFICE. IN PARTICULAR YOU BELIEVE THAT THIS OFFICE SHOULD HAVE CONDUCTED ITS OWN INVESTIGATION OF THIS PROCUREMENT WITH PARTICIPATION BY I.C.E.S.

B-167782, JAN. 21, 1970

BID PROTEST--COMPTROLLER GENERAL REVIEW AFFIRMATION OF DECISION OF DECEMBER 2, 1969, DENYING PROTEST OF ICES, INC; AGAINST AWARD OF NEGOTIATED CONTRACT TO CANADIAN COMMERCIAL CORPORATION BY AIR FORCE. PROTESTANT WHO CONTENDS THAT COMPTROLLER GENERAL SHOULD CONDUCT OWN INVESTIGATION OF PROCUREMENT IS ADVISED THAT DECISIONS IN PROTEST AREA ARE RENDERED AS PART OF AUTHORITY TO CERTIFY THAT THE EXPENDITURE OF APPROPRIATED MONIES ARE LEGAL. IN THIS MATTER, GAO DOES NOT HAVE FACILITIES OR AUTHORITY FOR CONDUCTING ADVERSARY HEARINGS, COMPELLING TESTIMONY AND CROSS EXAMINATION UNDER OATH TO RESOLVE WHAT ARE OFTEN TECHNICAL QUESTIONS INVOLVING EXERCISE OF JUDGMENT.

TO I.C.E.S; INCORPORATED:

WE HAVE RECEIVED YOUR LETTER OF DECEMBER 10, 1969, COMMENTING ON CERTAIN ASPECTS OF OUR DECISION, B-167782, DATED DECEMBER 2, 1969, WHEREIN YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO THE CANADIAN COMMERCIAL CORPORATION UNDER REQUEST FOR PROPOSALS NO. F04606-69-R 0524 WAS DENIED.

YOUR LETTER OF DECEMBER 10, 1969, ALLEGES THAT CERTAIN MATTERS PERTAINING TO YOUR PROTEST WERE IMPROPERLY HANDLED BY THIS OFFICE. IN PARTICULAR YOU BELIEVE THAT THIS OFFICE SHOULD HAVE CONDUCTED ITS OWN INVESTIGATION OF THIS PROCUREMENT WITH PARTICIPATION BY I.C.E.S. MANAGEMENT AND THAT GAO SHOULD NOT ACCEPT, WITHOUT SUCH INVESTIGATION, STATEMENTS AND REPORTS FROM THE ADMINISTRATIVE AGENCY.

THIS OFFICE RENDERS DECISIONS IN THE BID PROTEST AREA PRINCIPALLY AS PART OF OUR AUTHORITY TO CERTIFY THAT THE EXPENDITURE OF APPROPRIATED MONIES ARE LEGAL. SEE 31 U.S.C. 74. IN PERFORMING THIS FUNCTION, THE OFFICE DOES NOT HAVE THE FACILITIES OR AUTHORITY TO CONDUCT ADVERSARY HEARINGS COMPELLING TESTIMONY AND CROSS-EXAMINATION UNDER OATH TO RESOLVE WHAT ARE OFTEN TECHNICAL QUESTIONS INVOLVING THE EXERCISE OF JUDGMENT. RATHER, WE OPERATE ON THE BASIS OF THE WRITTEN RECORD PRESENTED TO THIS OFFICE BY ALL PARTIES CONCERNED. WHERE THAT RECORD BEFORE THIS OFFICE CONTAINS A DISPUTE OF FACT WHICH CANNOT BE RESOLVED WITHOUT AN ADVERSARY PROCEEDING, IT IS OUR LONG-STANDING PRACTICE TO RESOLVE SUCH DISPUTES IN FAVOR OF THE GOVERNMENT IN THE ABSENCE OF A CLEAR INDICATION TO THE CONTRARY.

THE REGULATIONS PROMULGATED BY THIS OFFICE ALLOW ANY INTERESTED PARTY TO PROTEST THE PROPOSED AWARD OF A CONTRACT TO US BY SETTING FORTH IN A TELEGRAM OR LETTER THE SPECIFIC BASES FOR THE PROTEST. SEE TITLE 4, CODE OF FEDERAL REGULATIONS, PART 20. HOWEVER, THE BURDEN IS ON THE PROTESTOR TO SPECIFY THE PARTICULARS SO THE PROCURING ACTIVITY MAY RESPOND TO THE CONTENTIONS. SIMILARLY, THIS OFFICE WILL ALLOW THE PROTESTOR AN OPPORTUNITY TO REVIEW AND TO RESPOND TO THE ADMINISTRATIVE REPORT WHEN RECEIVED, BUT SUCH AN OPPORTUNITY MUST BE REQUESTED OR WE WILL PROCEED TO RENDER OUR OPINION ON THE RECORD AS IT STANDS. WE RECOGNIZE THAT THIS INFORMAL PROCEDURE MAY SEEM UNSATISFACTORY AT TIMES. HOWEVER, WE BELIEVE IT IS CONSISTENT WITH OUR PRIMARY FUNCTION, WHICH IS TO SEE THAT APPROPRIATED FUNDS ARE EXPENDED IN ACCORDANCE WITH THE LAWS AND REGULATIONS, AND TO PRESERVE THE INTEGRITY OF THE COMPETITIVE PROCUREMENT SYSTEM. FURTHER, WHILE MORE FORMALIZED PROCEDURES MIGHT WELL RESULT IN GREATER COMPLIANCE WITH THE RULES GOVERNING GOVERNMENT PROCUREMENT, THE ADDITIONAL DELAYS INHERENT IN SUCH FORMALIZATION COULD HAVE A SUBSTANTIALLY ADVERSE EFFECT ON THE OPERATIONS OF THE GOVERNMENT WHICH DEPEND UPON THE PROCUREMENT CONCERNED.

IN ADDITION TO THE GENERAL COMMENT ON OUR LACK OF INVESTIGATION, YOU ALSO ALLEGE THAT CERTAIN SPECIFIC DETERMINATIONS BY THE CONTRACTING OFFICER INCORPORATED IN THE DECISION WERE ERRONEOUS. WHILE YOU HAVE NOT PRESENTED ANY FACTS OR EVIDENCE WHICH WARRANT REVERSAL OF ANY PORTION OF OUR PRIOR OPINION, WE FEEL COMPELLED TO COMMENT BRIEFLY ON CERTAIN POINTS RAISED THEREIN.

FIRST, YOU STILL MAINTAIN PROGRESS PAYMENTS SHOULD HAVE BEEN AUTHORIZED IN THIS SOLICITATION BECAUSE OF THE LENGTHY PERIOD BETWEEN COMMENCING PERFORMANCE AND THE FIRST OPPORTUNITY TO BILL FOR PAYMENT. ASPR E-503 AUTHORIZES CUSTOMARY PROGRESS PAYMENTS WHEN THE CONTRACTOR WILL BE REQUIRED TO PERFORM FOR A SIX-MONTH PERIOD BEFORE BILLING FOR PAYMENT. THIS PROCUREMENT, IF PERFORMANCE IS ON SCHEDULE, THE CONTRACTOR COULD BILL FOR PAYMENT WITHIN 63 CALENDAR DAYS. WHILE THE SIX-MONTH PERIOD SET FORTH IN THE REGULATION IS A GUIDELINE AND NOT A MINIMUM, WE REAFFIRM OUR OPINION THAT THE CONTRACTING OFFICER, IN VIEW OF THE SHORT PERIOD HERE INVOLVED, DID NOT ACT IMPROPERLY IN FINDING PRIVATE FINANCING WAS THE PREFERRED METHOD OF CONTRACT FINANCING.

SECOND, YOU CONTEND THE HISTORY OF YOUR COMPANY BELIES THE CONTRACTING OFFICER'S DETERMINATION THAT YOU WERE NOT A RESPONSIBLE CONTRACTOR FOR THIS PROCUREMENT. WHILE YOU RECOGNIZE THAT YOU LACK FINANCES, OSTENSIBLY BECAUSE PROGRESS PAYMENTS WERE NOT MADE AVAILABLE, YOU CITE YOUR PRIOR PERFORMANCE OF IRAN CONTRACTS FOR THE NAVY AND AIR FORCE AS ILLUSTRATIVE OF YOUR CAPABILITIES. THE PREAWARD SURVEY BY THE AIR FORCE FOUND THAT YOUR COMPANY LACKED THE CAPACITY TO PERFORM AS WELL AS THE REQUISITE FINANCES. THIS WAS ONE OF THE MATTERS YOU FELT THIS OFFICE SHOULD HAVE INVESTIGATED. HOWEVER, AS WE STATED IN OUR DECISION, THE DETERMINATION OF THE ADMINISTRATIVE OFFICIALS ON THESE MATTERS WILL BE OVERTURNED BY US ONLY IF THERE IS A CLEAR SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DECISION. CONCEIVABLY, THIS OFFICE AFTER AN INDEPENDENT REVIEW MIGHT REACH A DIFFERENT CONCLUSION. HOWEVER, WE BELIEVE THE PRESENT RECORD REASONABLY SUPPORTS THE CONCLUSION REACHED. SINCE THE PARTICULAR CONTRACTING OFFICER IS RESPONSIBLE FOR THE CONDUCT OF THE PROCUREMENT, HIS REASONABLE DETERMINATION IS ACCEPTED EVEN THOUGH A DIFFERENT CONTRACTING OFFICER, OR THE SAME ONE FOR A DIFFERENT PROCUREMENT, MAY REACH A DIFFERENT CONCLUSION.

FINALLY, YOU REITERATE YOUR ALLEGATION THAT THE CONTRACT AWARD WAS MADE AT AN EXORBITANT PRICE AND URGE IN SUPPORT OF THAT POSITION THE PRICES OF PRIOR CONTRACTS UPON WHICH I.C.E.S. COMPETED. IN THIS REGARD IT SHOULD BE NOTED THAT THIS SOLICITATION INVOLVING THE IRAN OF 180 T-39 AIRCRAFT COVERS WORK CONSIDERABLY MORE SOPHISTICATED THAN THE IRAN OF T-33 AIRCRAFT. ADDITIONALLY, THE SUCCESSFUL OFFER WAS THE THIRD LOWEST RECEIVED OUT OF A TOTAL OF SIX AND WAS CONSIDERABLY LESS THAN SOME OF THE OTHERS SUBMITTED.

FOR THE REASON DISCUSSED ABOVE WE FIND NO BASIS WHICH WARRANTS ALTERING OUR PRIOR DECISION. THEREFORE, IT IS AFFIRMED.