B-168269, JAN. 23, 1970

B-168269: Jan 23, 1970

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A DETERMINATION THAT AN OFFEROR WHO WAS DELINQUENT ON ONE CONTRACT DUE TO FIRST ARTICLE APPROVAL WAS CAPABLE OF PRODUCING MATERIAL WILL BE UPHELD SINCE DETERMINATION WAS BASED ON PREAWARD SURVEY WHICH INDICATES SATISFACTORY PRODUCTION. WE WERE FURNISHED AN ADMINISTRATIVE REPORT RESPONDING TO THE PROTEST. AWARDS FOR VARYING QUANTITIES OF THE TOTAL NUMBER OF FUZES REQUIRED WERE MADE ON DECEMBER 15. WE HAVE BEEN INFORMALLY ADVISED BY THE ARMY THAT IT WAS NECESSARY TO MAKE THE AWARDS NOTWITHSTANDING THE PROTEST BECAUSE OF THE URGENT NEED FOR THE FUZES. A CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY IN ACCORDANCE WITH PARAGRAPH 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WILL NOT BE DISTURBED BY OUR OFFICE UNLESS SUCH DETERMINATION IS ARBITRARY.

B-168269, JAN. 23, 1970

BID PROTEST--BIDDER RESPONSIBILITY DECISION DENYING PROTEST OF LEAR SIEGLER, INC; AGAINST NEGOTIATED AWARD FOR URGENTLY NEEDED FUZES TO OTHER THAN PROTESTANT. A DETERMINATION THAT AN OFFEROR WHO WAS DELINQUENT ON ONE CONTRACT DUE TO FIRST ARTICLE APPROVAL WAS CAPABLE OF PRODUCING MATERIAL WILL BE UPHELD SINCE DETERMINATION WAS BASED ON PREAWARD SURVEY WHICH INDICATES SATISFACTORY PRODUCTION.

TO MR. E. K. GUBIN:

WE REFER TO YOUR LETTERS OF OCTOBER 30 AND NOVEMBER 3, 1969, PROTESTING ON BEHALF OF LEAR SIEGLER, INC. (LSI), AGAINST THE AWARD OF A CONTRACT TO ANY OTHER OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAA09-70-R-0075, ISSUED ON AUGUST 18, 1969, BY THE ARMY AMMUNITION PROCUREMENT & SUPPLY AGENCY, JOLIET, ILLINOIS.

BY LETTER, WITH ENCLOSURES, DATED DECEMBER 12, 1969, FROM THE DEPUTY DIRECTOR FOR PROCUREMENT, DIRECTORATE OF REQUIREMENTS AND PROCUREMENT, HEADQUARTERS UNITED STATES ARMY MATERIEL COMMAND, WASHINGTON, D.C; WE WERE FURNISHED AN ADMINISTRATIVE REPORT RESPONDING TO THE PROTEST. THIS REPORT INDICATES THAT THE SUBJECT RFP SOLICITED PROPOSALS FOR FURNISHING A LARGE QUANTITY OF M48A3 FUZES. AFTER EVALUATION OF ALL PROPOSALS, AWARDS FOR VARYING QUANTITIES OF THE TOTAL NUMBER OF FUZES REQUIRED WERE MADE ON DECEMBER 15, 1969, TO THREE FIRMS WHICH HAD SUBMITTED THE LOWEST OFFERS: KEYSTONE MANUFACTURING CORPORATION; RULON COMPANY; AND WALTER KIDDE & COMPANY, INC. WE HAVE BEEN INFORMALLY ADVISED BY THE ARMY THAT IT WAS NECESSARY TO MAKE THE AWARDS NOTWITHSTANDING THE PROTEST BECAUSE OF THE URGENT NEED FOR THE FUZES.

INITIALLY, YOU QUESTION THE RESPONSIBILITY OF TWO OF THE FIRMS. SPECIFICALLY, YOU URGE THAT AT LEAST ONE OF THE FIRMS, WALTER KIDDE & COMPANY, INC; HAS BEEN DELINQUENT ON A PREVIOUS FUZE PROCUREMENT. ALSO, YOU ALLEGE THAT NEITHER WALTER KIDDE & COMPANY, INC; NOR KEYSTONE HAS PRODUCED FUZES IN THE QUANTITIES REQUIRED.

AS YOU KNOW, A CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY IN ACCORDANCE WITH PARAGRAPH 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WILL NOT BE DISTURBED BY OUR OFFICE UNLESS SUCH DETERMINATION IS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE. 45 COMP. GEN. 4 (1965); 38 ID. 131 (1958); 37 ID. 430 (1957). WE HAVE REVIEWED THE CONTRACTING OFFICER'S DETERMINATIONS IN LIGHT OF THE PREAWARD SURVEYS CONDUCTED ON WALTER KIDDE & COMPANY, INC; AND KEYSTONE AND WE FIND NO BASIS FOR INTERPOSING AN OBJECTION.

AN EXAMINATION OF THE PREAWARD SURVEY OF WALTER KIDDE & COMPANY, INC; INDICATES A NUMBER OF DELINQUENCIES, WHICH ARE STATED TO BE "OF SHORT DURATION AND FOR ISOLATED CAUSES WHICH WILL NOT AFFECT THE PROPOSED PROCUREMENT." CF. 43 COMP. GEN. 323 (1963), AND CASES CITED THEREIN, RECOGNIZING THAT EVEN A PRIOR DEFAULT DOES NOT PER SE REQUIRE A DETERMINATION OF NONRESPONSIBILITY. IT APPEARS THAT KEYSTONE WAS INITIALLY DELINQUENT ON ONE CONTRACT BECAUSE OF FIRST ARTICLE APPROVAL DIFFICULTIES. THESE DIFFICULTIES WERE OVERCOME, HOWEVER, AND THE PREAWARD SURVEY ON THAT FIRM INDICATES THAT AS A RESULT OF "SUSTAINED CORRECTIVE ACTION BY KEYSTONE MFG. CORP;" THE CONTRACT WAS COMPLETED 3 WEEKS AHEAD OF SCHEDULE. FURTHER, PERFORMANCE BY THAT FIRM OF TWO OTHER GOVERNMENT CONTRACTS HAS BEEN ON SCHEDULE SINCE THE AWARDS WERE MADE. MOREOVER, THE FACT THAT THE FIRMS MAY NOT HAVE PREVIOUSLY PRODUCED THE FUZES IN THE QUANTITIES REQUESTED IS NOT DECISIVE. IN THIS CONNECTION, THE PREAWARD SURVEYS INDICATE THAT BOTH FIRMS HAVE SATISFACTORY PRODUCTION CAPABILITIES.

YOUR FINAL CONTENTION, AS STATED IN YOUR LETTER OF OCTOBER 30, 1969, IS THAT:

"* * * LSI, ON INFORMATION AND BELIEF, UNDERSTANDS THAT SOMEHOW OR OTHER THE PRICE CARRIED IN ITS PROPOSAL FURNISHED ON OR BEFORE SEPT. 10, 1969 TO THE PROCUREMENT AGENCY HAS SOMEHOW BECOME PUBLIC KNOWLEDGE, WITHOUT THE CONSENT OF LSI." YOU HAVE FURNISHED NO EVIDENCE IN SUPPORT OF THIS ALLEGATION, AND THE CONTRACTING OFFICER'S REPORT DATED NOVEMBER 17, 1969, ADVISES THAT AN INVESTIGATION BY HIS OFFICE FAILED TO UNCOVER ANY EVIDENCE THAT THE PRICE INFORMATION IN LSI'S PROPOSAL WAS DISCLOSED. THUS, WE FIND NO BASIS FOR ENTERTAINING THE SUGGESTION THAT ASPR 3-507 HAS NOT BEEN COMPLIED WITH.