B-169736, AUG. 3, 1970

B-169736: Aug 3, 1970

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THAT INDICATED IT WAS DELINQUENT IN 66 CONTRACTS AND THAT TWO WERE TERMINATED FOR DEFAULT MUST HAVE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY WHICH IS NOT SHOWN TO BE ARBITRARY UPHELD. INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 8. THE RECORD SHOWS THAT AFTER BIDS WERE OPENED ON APRIL 15. THE CONTRACTING OFFICER DETERMINED THAT YOUR CONCERN WAS NONRESPONSIBLE PURSUANT TO A PRE-AWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DIVISION. THE CONTRACTING OFFICER APPARENTLY EXERCISED HIS DISCRETION NOT TO REFER THE MATTER OF YOUR CAPACITY TO THE SMALL BUSINESS ADMINISTRATION SINCE THE PROPOSED AWARD WAS UNDER $10. WE HAVE CONSISTENTLY MAINTAINED THAT THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY.

B-169736, AUG. 3, 1970

BID PROTEST -- BIDDER RESPONSIBLE DENIAL OF PROTEST OF HYDROMATICS, INC., LOW BIDDER AGAINST THE REJECTION OF BID FOR A COMPONENT VALUE PART FOR SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA. LOW BIDDER WHO, AFTER A PREAWARD SURVEY, THAT INDICATED IT WAS DELINQUENT IN 66 CONTRACTS AND THAT TWO WERE TERMINATED FOR DEFAULT MUST HAVE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY WHICH IS NOT SHOWN TO BE ARBITRARY UPHELD.

TO HYDROMATICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 8, 1970, IN WHICH YOU PROTEST THE REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS NO. N00104-70-B-1639, ISSUED BY THE SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, FOR A COMPONENT BALL VALVE PART.

THE RECORD SHOWS THAT AFTER BIDS WERE OPENED ON APRIL 15, 1970, THE CONTRACTING OFFICER PROCEEDED TO DETERMINE THE RESPONSIBILITY OF THE LOWEST BIDDERS UNDER THE SUBJECT IFB PRIOR TO MAKING AN AWARD FOR THE REQUIREMENT IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-902. THE CONTRACTING OFFICER DETERMINED THAT YOUR CONCERN WAS NONRESPONSIBLE PURSUANT TO A PRE-AWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DIVISION, SPRINGFIELD, NEW JERSEY, WHICH RECOMMENDED THAT NO AWARD BE MADE TO YOUR COMPANY BECAUSE OF UNSATISFACTORY RATINGS IN THE AREAS OF PRODUCTION CAPABILITY, PURCHASING AND SUBCONTRACTING, QUALITY ASSURANCE CAPABILITY, PERFORMANCE RECORD, AND ABILITY TO MEET THE REQUIRED SCHEDULE. THE CONTRACTING OFFICER APPARENTLY EXERCISED HIS DISCRETION NOT TO REFER THE MATTER OF YOUR CAPACITY TO THE SMALL BUSINESS ADMINISTRATION SINCE THE PROPOSED AWARD WAS UNDER $10,000. SEE ASPR 1-705.4(C).

WE HAVE CONSISTENTLY MAINTAINED THAT THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY, AND IN THE ABSENCE OF BAD FAITH OR A REASONABLE BASIS FOR SUCH DETERMINATION WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY. 37 COMP. GEN. 798 (1958). IN THIS CONNECTION THE RECORD SHOWS THAT IN 1969 SIXTY-SIX CONTRACTS PERFORMED BY YOUR CONCERN WERE DELINQUENT AND THAT TWO CONTRACTS WERE TERMINATED FOR DEFAULT. DURING THE FIRST QUARTER OF 1970 TWENTY- SEVEN OF YOUR CONTRACTS WERE DELINQUENT. THE REPORT FURTHER STATES THAT THESE DELINQUENCIES WERE ASCRIBABLE TO IMPROPER SCHEDULING AND PRODUCTION PLANNING ON THE PART OF YOUR CONCERN. IN VIEW OF THIS RECORD WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION WAS ARBITRARY.

FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.