B-169119, MAY 14, 1970

B-169119, MAY 14, 1970

BIDDERS--QUALIFICATIONS--PRIOR UNSATISFACTORY SERVICE--ADMINISTRATIVE DETERMINATION UNDER INVITATION FOR BIDS FOR AIRCRAFT FUEL TANKS, BIDDER PROTESTS CONTRACTING OFFICER'S FINDING BIDDER NOT RESPONSIBLE ON BASIS OF DELINQUENT PERFORMANCE UNDER PRIOR CONTRACTS AND CITES FAVORABLE PREAWARD SURVEY AND FACT PRIOR PERFORMANCE DEFICIENCIES WERE NOT ENTIRELY BIDDER'S FAULT. SINCE DETERMINATIONS OF RESPONSIBILITY INVOLVE EXERCISE OF ADMINISTRATIVE DISCRETION AND CONTRACTING OFFICER MAY PROPERLY CONSIDER PREAWARD SURVEY (BUT IS NOT REQUIRED TO MAKE AWARD BECAUSE OF FAVORABLE SURVEY), PAST PERFORMANCE RECORD AND OTHER FACTORS, GAO CANNOT OBJECT TO DETERMINATION ON RESPONSIBILITY UNLESS FOUND TO BE ARBITRARY, CAPRICIOUS, OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE. SEE COMP. GEN. DECS. CITED.

TO AMERICAN ELECTRIC, INCORPORATED:

THIS CONCERNS YOUR PROTEST OF FEBRUARY 19, 1970, AND SUBSEQUENT COMMUNICATIONS DATED FEBRUARY 20, MARCH 3, MARCH 30, AND APRIL 15, 1970, IN CONNECTION WITH AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. N00019-69-B-0274 FOR A QUANTITY OF 150 GALLON EXTERNAL AIRCRAFT FUEL TANKS TOGETHER WITH SUPPORTING PUBLICATIONS, DRAWINGS, SPARE AND REPAIR PARTS.

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION FOR BIDS. THE LOW BID WAS WITHDRAWN BECAUSE OF A MISTAKE IN THE BID PRICE. THE CONTRACTING OFFICER DETERMINED AMERICAN, THE SECOND LOW BIDDER, NOT TO BE A RESPONSIBLE BIDDER FOR THE PURPOSES OF THIS PROCUREMENT AND AWARD WAS MADE TO ROYAL INDUSTRIES AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER.

YOUR PROTEST AGAINST THE CONTRACTING OFFICER'S FINDING THAT AMERICAN WAS NOT RESPONSIBLE IS BASED ON THE FAVORABLE PRE-AWARD SURVEY ON AMERICAN BY THE DEFENSE CONTRACT ADMINISTRATION SERVICE (DCAS), AND THE FACT THAT THE PERFORMANCE DEFICIENCIES UNDER OTHER CONTRACTS, UPON WHICH THE CONTRACTING OFFICER BASED HIS DETERMINATION, WERE NOT ENTIRELY ATTRIBUTABLE TO AMERICAN.

THIS OFFICE CONSISTENTLY HAS TAKEN THE POSITION THAT THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY INVOLVES THE EXERCISE OF CAREFUL JUDGMENT ON THE PART OF THE CONTRACTING OFFICER SINCE THE DETERMINATION ESSENTIALLY IS A FORECAST OF THE BIDDER'S ABILITY TO PERFORM THE CONTRACT. SEE 43 COMP. GEN. 228 (1963). IN REACHING HIS DECISION THE CONTRACTING OFFICER PROPERLY MAY CONSIDER A PROSPECTIVE CONTRACTOR'S PAST PERFORMANCE RECORD AS WELL AS THE PRE AWARD SURVEY CONDUCTED BY DCAS. THE CONTRACTING OFFICER IS NOT REQUIRED TO MAKE AWARD TO A BIDDER BECAUSE OF A FAVORABLE PRE-AWARD SURVEY, B-166275 (1), OCTOBER 17, 1969. NOR IS HE PRECLUDED FROM CONSIDERING OTHER FACTORS SUCH AS PERFORMANCE UNDER PRIOR CONTRACTS. ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-904.1.

IN THIS INSTANCE, THE CONTRACTING OFFICER REVIEWED SIX PRIOR CONTRACTS BETWEEN THE NAVY AND AMERICAN. UNDER EACH CONTRACT AMERICAN HAD BEEN DELINQUENT IN PERFORMING. AMERICAN, WHILE DENYING THAT ALL OF THE DELAYS IN PERFORMANCE WERE THEIR FAULT, HAS ADMITTED RESPONSIBILITY FOR SOME SLIPPAGES IN PERFORMANCE UNDER THESE PRIOR CONTRACTS. SINCE, AS WE HAVE STATED, DETERMINATIONS OF RESPONSIBILITY INVOLVE THE EXERCISE OF ADMINISTRATIVE DISCRETION AND REQUIRE THE CONSIDERATION OF EVIDENCE UPON WHICH REASONABLE PERSONS MAY REACH DIFFERING CONCLUSIONS, THIS OFFICE PROPERLY COULD OBJECT TO A DETERMINATION OF RESPONSIBILITY ONLY IF FOUND TO BE ARBITRARY, CAPRICIOUS OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE 37 COMP. GEN. 430 (1957); 39 ID. 468 (1959); 43 ID. 298 (1963). WE FIND NO BASIS FOR SUCH A FINDING IN THIS CASE.

YOUR PROTEST, THEREFORE, MUST BE DENIED. HOWEVER, WE WOULD LIKE TO POINT OUT THAT A DETERMINATION OF RESPONSIBILITY APPLIES ONLY TO THE PARTICULAR PROCUREMENT FOR WHICH IT IS MADE AND IS IN NO WAY INTENDED TO REPRESENT THE GOVERNMENT'S APPROVAL OR DISAPPROVAL OF A PARTICULAR BUSINESS CONCERN. ADDITIONALLY, AS A GENERAL RULE, A PRIOR ADMINISTRATIVE DETERMINATION OF RESPONSIBILITY IS NOT DETERMINATIVE OF A SUBSEQUENT QUESTION OF RESPONSIBILITY. CF. 43 COMP. GEN. 140 (1963).