B-169746, JUN. 18, 1970

B-169746: Jun 18, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CONTRACTING OFFICER AND SINCE RESPONSIBILITY DETERMINATION IS LARGELY LEFT TO SOUND ADMINISTRATIVE DISCRETION OF CONTRACTING OFFICERS INVOLVED. TO BART MANUFACTURING CORPORATION: REFERENCE IS MADE TO YOUR PROTEST SUBMITTED TO OUR OFFICE BY THE HONORABLE PETER W. THE INVITATION WAS ISSUED ON OCTOBER 3. FIVE BIDS WERE RECEIVED AND OPENED ON DECEMBER 8. 384 SINCE YOUR FIRM WAS LOWEST BIDDER. A PREAWARD SURVEY WAS CONDUCTED OF YOUR PLANT AND FACILITIES AT NEWARK. THE RESULTS THEREOF WERE FORWARDED TO THE CONTRACTING OFFICER UNDER LETTER DATED JANUARY 20. YOUR COMPANY AND ITS FACILITIES WERE FOUND "UNSATISFACTORY" IN THE FOLLOWING AREAS SURVEYED: TECHNICAL CAPABILITY PRODUCTION CAPABILITY PLANT FACILITIES AND EQUIPMENT FINANCIAL CAPABILITY PURCHASING AND SUBCONTRACTING QUALITY ASSURANCE CAPABILITY TRANSPORTATION PLANT SAFETY PERFORMANCE RECORD ABILITY TO MEET REQUIRED SCHEDULE IN ADDITION.

B-169746, JUN. 18, 1970

BIDDERS--QUALIFICATIONS--PREAWARD SURVEYS--PERFORMANCE RECORD UNSATISFACTORY UNDER INVITATION FOR BIDS ON REELING MACHINE LAUNCHER SYSTEMS, ETC; LOW BIDDER REJECTED AS NONRESPONSIBLE ON BASIS OF PREAWARD SURVEY WHICH FOUND BIDDER UNSATISFACTORY IN TECHNICAL CAPABILITY AND PAST PERFORMANCE RECORD, OFFERS NO BASIS TO QUESTION ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY OR AWARD TO NEXT LOWEST BIDDER SINCE SUBSEQUENT DECLINATION BY SMALL BUSINESS ADMINISTRATION TO ISSUE SAID BIDDER CERTIFICATE OF COMPETENCY SUPPORTS JUDGMENT OF SURVEY TEAM, AGENCY OFFICIALS, AND CONTRACTING OFFICER AND SINCE RESPONSIBILITY DETERMINATION IS LARGELY LEFT TO SOUND ADMINISTRATIVE DISCRETION OF CONTRACTING OFFICERS INVOLVED. SEE COMP. GEN. DECS. CITED.

TO BART MANUFACTURING CORPORATION:

REFERENCE IS MADE TO YOUR PROTEST SUBMITTED TO OUR OFFICE BY THE HONORABLE PETER W. RODINO, JR; HOUSE OF REPRESENTATIVES, UNDER INVITATION FOR BIDS NO. N00019-69-B-0277, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND. YOU REQUEST, IN EFFECT, OUR REVIEW OF ANY ADVERSE CONTRACTING OFFICER DETERMINATION OF YOUR RESPONSIBILITY AND ELIGIBILITY FOR AWARD UNDER THIS INVITATION IN THE LIGHT OF THE APPLICABLE REGULATIONS.

THE INVITATION WAS ISSUED ON OCTOBER 3, 1969, FOR THE PROCUREMENT OF 36 EACH RMK-19/A 47U-3 REELING MACHINE LAUNCHER SYSTEMS, TOW TARGET, AND RELATED EQUIPMENT WITH AN OPTION TO BUY AN ADDITIONAL 17 UNITS AND RELATED EQUIPMENT. FIVE BIDS WERE RECEIVED AND OPENED ON DECEMBER 8, 1969, WITH THE FOLLOWING RESULTS:

BIDDER TOTAL PRICE

BART MANUFACTURING CORPORATION $2,284,415

MARQUARDT COMPANY 2,672,023

DEL MAR ENGINEERING LABS 2,988,259

EDO CORPORATION 3,173,927

WESTERN GEAR CORPORATION 3,757,384

SINCE YOUR FIRM WAS LOWEST BIDDER, A PREAWARD SURVEY WAS CONDUCTED OF YOUR PLANT AND FACILITIES AT NEWARK, NEW JERSEY. THE RESULTS THEREOF WERE FORWARDED TO THE CONTRACTING OFFICER UNDER LETTER DATED JANUARY 20, 1970. THE PREAWARD SURVEY RECOMMENDED "NO AWARD" OF A CONTRACT TO YOUR COMPANY FOR MANY REASONS. THE NAVY AND AIR FORCE PERSONNEL WHO ACCOMPANIED THE DEFENSE CONTRACT ADMINISTRATIVE SERVICES REGION (DCASR) PERSONNEL DURING THIS SURVEY CONCURRED IN THE "NO AWARD" RECOMMENDATION BY DCASR. YOUR COMPANY AND ITS FACILITIES WERE FOUND "UNSATISFACTORY" IN THE FOLLOWING AREAS SURVEYED:

TECHNICAL CAPABILITY

PRODUCTION CAPABILITY

PLANT FACILITIES AND EQUIPMENT

FINANCIAL CAPABILITY

PURCHASING AND SUBCONTRACTING

QUALITY ASSURANCE CAPABILITY

TRANSPORTATION

PLANT SAFETY

PERFORMANCE RECORD

ABILITY TO MEET REQUIRED SCHEDULE IN ADDITION, THE SURVEY SPECIFICALLY DETAILED AN UNSATISFACTORY PERFORMANCE RECORD AS FOLLOWS:

"A.3 CONTRACTS TERMINATED FOR CONVENIENCE BY THE GOVERNMENT AS THE CONTRACTOR WAS UNDER THE AUSPICES OF CHAPTER XI OF THE BANKRUPTCY ACT AT THE TIME OF THESE TERMINATIONS. HAD HE NOT BEEN IN BANKRUPTCY IT WOULD HAVE BEEN A DEFAULT TERMINATION.

"B. 2 CONTRACTS COMPLETED 13 MONTHS LATE.

"C. 4 CONTRACTS ALL CURRENTLY DELINQUENT FOR PERIODS RANGING FROM 4 TO 10 MONTHS DUE TO CONTRACTORS INTERNAL PROBLEMS, WITH AN INDEFINITE RECOVERY TIME."

ON THE BASIS OF THE PREAWARD SURVEY, A DETERMINATION OF NONRESPONSIBILITY WAS MADE BY THE CONTRACTING OFFICER ON MARCH 10, 1970, PURSUANT TO PARAGRAPH 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

IN ACCORDANCE WITH THE REQUIREMENTS OF ASPR 1-705.4, THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA), NEWARK, NEW JERSEY, ON MARCH 30, 1970, ADVISING THAT AGENCY THAT IT WAS THE INTENTION OF THE CONTRACTING OFFICER TO REJECT THE BID SUBMITTED BY YOU ON THE BASIS OF NONRESPONSIBILITY AS TO CAPACITY AND CREDIT. THE CONTRACTING OFFICER RECEIVED NOTICE FROM THE SBA FIELD OFFICE APRIL 1, 1970, THAT YOU HAD ELECTED TO FILE AN APPLICATION FOR A CERTIFICATE OF COMPETENCY (COC). AFTER REVIEW OF YOUR APPLICATION IN RELATION TO THE INSTANT INVITATION AND BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION, THE SBA GAVE NOTICE TO THE CONTRACTING OFFICER THAT IT HAD DECLINED TO ISSUE A COC TO YOU FOR THIS PROCUREMENT. IN VIEW OF THIS, YOUR FIRM COULD NOT BE FAVORABLY CONSIDERED FOR AN AWARD UNDER THIS INVITATION. THE NEXT LOWEST BIDDER, MARQUARDT COMPANY, WAS SURVEYED AND AN AWARD TO THAT COMPANY WAS RECOMMENDED.

SINCE CONSIDERABLE TIME WAS CONSUMED IN PROCESSING YOUR PROTEST AS REQUIRED BY EXISTING REGULATIONS, AND SINCE THE SUPPLIES WERE URGENTLY REQUIRED, AN AWARD WAS MADE TO THE MARQUARDT COMPANY ON MAY 20, 1970, AS THE LOWEST RESPONSIVE AND RESPONSIBLE OFFEROR PURSUANT TO THE AUTHORITY IN ASPR 2-407.8(B).

THE ABILITY OF A PROSPECTIVE CONTRACTOR TO PERFORM IS FOR DETERMINATION PRIMARILY BY THE CONTRACTING AGENCY AND ABSENT A SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS THEREFOR, WE WILL NOT QUESTION THE VALIDITY OF THE DETERMINATION. 37 COMP. GEN. 430 (1957). SEE 38 COMP. GEN. 248 (1958); ID. 131, 133 (1958). IN 43 COMP. GEN. 228 (1963), WE STATED:

" *** DECIDING A PROSPECTIVE CONTRACTOR'S PROBABLE ABILITY TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH MUST OF NECESSITY BE A MATTER OF JUDGMENT. SUCH JUDGMENT SHOULD OF COURSE BE BASED ON FACT AND REACHED IN GOOD FAITH; HOWEVER, IT IS ONLY PROPER THAT IT BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED WHO SHOULD BE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, WHO MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED IN OBTAINING REQUIRED PERFORMANCE, AND WHO MUST MAINTAIN DAY TO DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF. *** "

THE DECLINATION BY SBA TO ISSUE YOU A COC UPON YOUR APPLICATION SUPPORTS THE JUDGMENT EXPRESSED BY THE SURVEY TEAM, AGENCY OFFICIALS, AND THE CONTRACTING OFFICER IN THE MATTER. IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO DISTURB THE DETERMINATION OF NONRESPONSIBILITY. LIKEWISE, THE APPLICABLE REGULATIONS HAVING BEEN SATISFACTORILY COMPLIED WITH IN THE CIRCUMSTANCES, WE FIND NO BASIS IN LAW OR REGULATION TO OBJECT TO THE AWARD MADE TO MARQUARDT COMPANY.