B-169945, AUG. 12, 1970

B-169945: Aug 12, 1970

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IS NOT SUBJECT TO OBJECTION WHEN BASED ON SUBSTANTIAL EVIDENCE. TO HUNTER MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 2. SIX BIDS WERE RECEIVED AND OPENED ON APRIL 14. YOUR BID WAS THE NEXT LOWEST EVALUATED PRICE IN THE AMOUNT OF $2. YOUR PROTEST IS BASED ON THE GROUNDS THAT RONAL IS INCAPABLE OF PERFORMING THE CONTRACT BECAUSE OF THE INADEQUACY OF ITS FINANCIAL ABILITY. IS A QUESTION OF RESPONSIBILITY RATHER THAN OF RESPONSIVENESS. SINCE THERE IS NO INDICATION THAT RONAL DID NOT AGREE TO ALL THE MATERIAL TERMS AND CONDITIONS OF THE SUBJECT INVITATION IN ITS BID. THE QUESTION FOR RESOLUTION IS WHETHER OR NOT THE DETERMINATION BY THE CONTRACTING OFFICER THAT RONAL WAS CAPABLE OF PERFORMING IN ACCORDANCE WITH THE REQUIREMENTS OF THE INVITATION SCHEDULE WAS CORRECT.

B-169945, AUG. 12, 1970

BID PROTEST -- BIDDER CAPABILITY DENIAL OF PROTEST AGAINST AWARD OF CONTRACT FOR WINTERIZATION KITS BY ARMY TANK AUTOMOTIVE COMMAND TO RONAL INDUSTRIES, INC., LOW BIDDER. DETERMINATION BASED ON PREAWARD SURVEY THAT LOW BIDDER HAD CAPABILITY TO PERFORM HAD SATISFACTERILY OVERCOME ANY INADEQUACIES IN FINANCING, FACILITIES, ETC., IS NOT SUBJECT TO OBJECTION WHEN BASED ON SUBSTANTIAL EVIDENCE.

TO HUNTER MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 2, 1970, PROTESTING ANY AWARD OF CONTRACT TO THE APPARENT LOW BIDDER UNDER INVITATION FOR BIDS NO. DAAE07-70-B-1083, ISSUED BY THE ARMY TANK AUTOMOTIVE COMMAND, WARREN, MICHIGAN.

THE INVITATION, ISSUED JANUARY 20, 1970, SOLICITED BIDS, ON AN "ALL OR NONE" BASIS, FOR 7 ITEMS OF WINTERIZATION KITS, IN ACCORDANCE WITH SPECIFICATIONS AS STATED IN THE INVITATION FOR BIDS, IN VARIOUS QUANTITIES TO MULTI-DESTINATIONS, F.O.B. ORIGIN.

SIX BIDS WERE RECEIVED AND OPENED ON APRIL 14, 1970. RONAL INDUSTRIES, INCORPORATED, (RONAL) SUBMITTED THE LOWEST EVALUATED PRICE IN THE AMOUNT OF $2,374,140.59. YOUR BID WAS THE NEXT LOWEST EVALUATED PRICE IN THE AMOUNT OF $2,384,573.19.

ESSENTIALLY, YOUR PROTEST IS BASED ON THE GROUNDS THAT RONAL IS INCAPABLE OF PERFORMING THE CONTRACT BECAUSE OF THE INADEQUACY OF ITS FINANCIAL ABILITY, PLANT FACILITIES AND TECHNICAL CAPABILITIES AS SHOWN ON A FEBRUARY 9, 1970, DUN AND BRADSTREET REPORT FILED BY RONAL.

THE QUESTION OF A BIDDER'S ABILITY TO PERFORM A PROPOSED CONTRACT, AS OPPOSED TO THE CONFORMITY OF HIS BID TO THE MATERIAL TERMS AND CONDITIONS OF AN INVITATION FOR BIDS, IS A QUESTION OF RESPONSIBILITY RATHER THAN OF RESPONSIVENESS. SINCE THERE IS NO INDICATION THAT RONAL DID NOT AGREE TO ALL THE MATERIAL TERMS AND CONDITIONS OF THE SUBJECT INVITATION IN ITS BID, THE QUESTION FOR RESOLUTION IS WHETHER OR NOT THE DETERMINATION BY THE CONTRACTING OFFICER THAT RONAL WAS CAPABLE OF PERFORMING IN ACCORDANCE WITH THE REQUIREMENTS OF THE INVITATION SCHEDULE WAS CORRECT. IN THIS REGARD, THE CONTRACTING OFFICER REQUESTED A PRE-AWARD SURVEY ON RONAL FROM THE DEFENSE CONTRACT ADMINISTRATION SERVICES DIVISION OF THE DEFENSE SUPPLY AGENCY OF NEW YORK (DCASR-NY), AND A REPORT WAS ISSUED ON MAY 20, 1970. THE PRE AWARD SURVEY SHOWED THAT RONAL HAD THE CAPABILITY TO PERFORM THE PROPOSED CONTRACT, HAD SATISFACTORY PLANNING TO OVERCOME ANY INADEQUACIES IN FINANCING, PLANT FACILITIES AND MANPOWER, AND RECOMMENDED A FULL AWARD.

SPECIFICALLY, THE SURVEY DISCLOSED THAT RONAL WOULD HAVE TO ADD ADDITIONAL EMPLOYEES TO COMPLETE THE CONTRACT; HOWEVER, IT WAS DETERMINED THAT SATISFACTORY PLANS HAD BEEN MADE BY RONAL AND THAT AN ADEQUATE LABOR POOL WAS AVAILABLE. FURTHER, RONAL HAD MADE ARRANGEMENTS TO LEASE ADDITIONAL FLOORSPACE NEARBY AS WELL AS ADDITIONAL FLOORSPACE FROM A SUBCONTRACTOR, ALL OF WHICH WAS CONSIDERED ADEQUATE. EXTENSIVE FINANCING WAS ARRANGED WITH PRIVATE BANKS, WHICH, COMBINED WITH THE APPROVAL FOR PROGRESS PAYMENTS, WAS CONSIDERED BY THE CONTRACTING OFFICER TO HAVE OVERCOME APPARENT FINANCING PROBLEMS.

THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY AND WILL BE QUESTIONED BY OUR OFFICE ONLY UPON A SHOWING THAT THE AGENCY'S DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE. SEE B-163607(1), MARCH 11, 1968. ON THE BASIS OF THE PRESENT RECORD, WE MUST CONCLUDE THAT THE AGENCY'S DETERMINATION THAT RONAL COULD PRODUCE IN ACCORDANCE WITH THE INVITATION AND WAS THEREFORE A RESPONSIBLE BIDDER WAS BASED ON SUBSTANTIAL EVIDENCE.

IN THE CIRCUMSTANCES, THERE IS NO LEGAL BASIS UPON WHICH OUR OFFICE MAY PROPERLY OBJECT TO AN AWARD TO RONAL.

ACCORDINGLY, YOUR PROTEST IS DENIED.