B-169609, OCT. 9, 1970

B-169609, OCT. 9, 1970

BID PROTEST - RECONSIDERATION REQUEST DENIAL OF REQUEST FOR RECONSIDERATION OF BID PROTEST AGAINST AWARD OF A CONTRACT TO READING TECHMATIC CORPORATION FOR DE ICING/DECONTAMINATION SPRAY UNITS BY SAN ANTONIO AIR MATERIAL AREA. PROTESTANT, CLAIMING THAT OTHER BIDDERS WHO MADE BIDS LESS THAN THEIR ENGINEERING COSTS AND COULD NOT MEET THE DELIVERY DATE ARE NONRESPONSIBLE, MAY NOT HAVE CONCLUSION CHANGED WHERE NO NEW FACTS HAVE BEEN PRESENTED, AND IT IS NOT SHOWN THAT THERE WAS MATERIAL ERROR IN EITHER FACT OR LAW.

TO C & M MANUFACTURING COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 8, 1970, CONCERNING OUR DECISION OF SEPTEMBER 1, 1970, WHICH DENIED THE PROTEST OF C & M INDUSTRIAL ASSOCIATES, INC., AGAINST AWARD OF A CONTRACT TO READING TECHMATIC CORP. (READING) UNDER INVITATION FOR BIDS (IFB) NO. F41608-70 B- 0991, ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA (SAAMA), KELLY AIR FORCE BASE, TEXAS.

YOU EXPRESS DISAGREEMENT WITH OUR DECISION, AND YOU REQUEST AN AUDIT OF THE CONTRACT AT EVERY STAGE THEREOF IF PROGRESS PAYMENTS WERE REQUESTED. YOU STATE THAT YOU BELIEVE THE AIR FORCE ACTED WITHOUT MERIT AND IN A CAPRICIOUS MANNER IN AWARDING THE CONTRACT TO READING, PARTICULARLY IN VIEW OF THE FACT THAT THE AIR FORCE HAS ALREADY BANKRUPTED A PREVIOUS CONTRACTOR, AND IN YOUR OPINION THE AIR FORCE WILL BANKRUPT THE CONTRACTOR UNDER THE PRESENT CONTRACT. YOU ALSO STATE WHAT IT IS YOUR BELIEF THE GENERAL ACCOUNTING OFFICE DOES HAVE RESPONSIBILITY IN REGARD TO THIS MATTER.

IN OUR DECISION OF SEPTEMBER 1 WE WERE UNABLE TO CONCLUDE, ON THE BASIS OF THE RECORD, THAT THE CONTRACTING OFFICER'S DETERMINATION THAT READING WAS A RESPONSIBLE BIDDER WAS ARBITRARY OR WITHOUT A SUBSTANTIAL BASIS, OR THAT THE AWARD WAS ILLEGAL. IN CONSIDERING A PROTEST AGAINST A GOVERNMENT PROCUREMENT ACTION, OUR FUNCTION IS ONLY TO INSURE THAT PROCUREMENTS ARE MADE IN ACCORDANCE WITH APPLICABLE LAW, AND REGULATIONS ISSUED PURSUANT THERETO, AND CANCELLATION OF A CONTRACT CAN BE DIRECTED BY THIS OFFICE ONLY UPON OUR CONCLUSION THAT THERE IS A LEGAL JUSTIFICATION FOR A COURT OF LAW TO FIND THE AWARD SO INCOMPATIBLE WITH THE GOVERNING STATUTES AND REGULATIONS AS TO RENDER SUCH CONTRACT A NULLITY. THE DECISIONS OF THE COMPTROLLER GENERAL IN SUCH MATTERS ARE ALWAYS SUBJECT TO RECONSIDERATION IF THE RECIPIENT BELIEVES THE DECISION IS FOUNDED UPON MATERIAL ERROR IN EITHER FACT OR LAW, AND IDENTIFIES THE EXACT LEGAL OR FACTUAL ERRORS ON WHICH HIS BELIEF IS BASED. HOWEVER, YOU HAVE NOT SUBMITTED ANY NEW MATERIAL IN YOUR LETTER OF SEPTEMBER 8 TO SUBSTANTIATE YOUR VIEWS OR WHICH WOULD SERVE AS GROUNDS FOR A CONCLUSION DIFFERENT FROM THAT REACHED IN OUR DECISION OF SEPTEMBER 1, WITH RESPECT TO THE LEGAL VALIDITY OF THE AWARD, WHICH DECISION IS THEREFORE AFFIRMED.

REGARDING YOUR REQUEST THAT AN AUDIT BE MADE AT EVERY STAGE OF THE CONTRACT IF PROGRESS PAYMENTS HAVE BEEN REQUESTED PURSUANT TO PART XXII, SCHEDULE SECTION I, OF THE IFB, READING REQUESTED PROGRESS PAYMENTS IN ITS BID THEREBY CAUSING INCORPORATION OF THE PROGRESS PAYMENTS CLAUSE SHOWN IN PARAGRAPH E-510.1, APPENDIX E, OF THE ARMED SERVICES PROCUREMENT REGULATION INTO THE CONTRACT. PARAGRAPH (C) OF THAT CLAUSE PERMITS THE CONTRACTING OFFICER TO REDUCE OR SUSPEND PROGRESS PAYMENTS, OR LIQUIDATE THEM AT A RATE HIGHER THAN THE PERCENTAGE STATED IN THE CLAUSE, OR BOTH, WHENEVER HE FINDS THAT THE CONTRACTOR HAS FAILED TO COMPLY WITH ANY MATERIAL REQUIREMENT OF THE CONTRACT, HAS SO FAILED TO MAKE PROGRESS, OR IS IN SUCH UNSATISFACTORY FINANCIAL CONDITION, AS TO ENDANGER PERFORMANCE OF THE CONTRACT.

WE ARE AWARE OF NO PURPOSE, OTHER THAN AS AN AID IN IMPLEMENTING THE PROVISIONS OF THE PROGRESS PAYMENTS CLAUSE, WHICH AN AUDIT AT EVERY STAGE OF CONTRACT PERFORMANCE MIGHT BE EXPECTED TO ACCOMPLISH. SINCE AUDIT FOR THAT PURPOSE WOULD APPEAR TO BE THE RESPONSIBILITY OF THE CONTRACTING AGENCY, AND SINCE THIS OFFICE WOULD BE WITHOUT AUTHORITY IN ANY EVENT TO DIRECT THE AGENCY TO TAKE ACTION UNDER THE PROVISIONS OF THE PROGRESS PAYMENTS CLAUSE, WE MUST DECLINE TO UNDERTAKE THE AUDIT YOU REQUEST. YOU ARE STILL OF THE OPINION SUCH AN AUDIT WOULD BE NECESSARY OR DESIRABLE, IT IS SUGGESTED YOU DIRECT YOUR REQUEST TO THE CONTRACTING AGENCY.