B-170014, DEC. 8, 1970

B-170014: Dec 8, 1970

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A PRE-AWARD SURVEY SHOWING PROTESTANT'S SUPPLIERS COULD NOT MEET THE DELIVERY SCHEDULE RESULTING IN A FINDING OF NONRESPONSIBILITY BY THE CONTRACTING OFFICER WAS NOT ARBITRARY OR CAPRICIOUS AND IS NOT SUBJECT TO QUESTION BY GAO. LTD.: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD MADE BY THE 21ST AIR DIVISION. THE REQUEST FOR PROPOSALS (RFP) WAS ISSUED ON APRIL 6. AFTER TWO MODIFICATIONS THE CLOSING DATE FOR INITIAL PROPOSALS WAS EXTENDED TO MAY 12. THE RFP PROVIDED FOR THE SUBMITTAL OF PROPOSALS ON THE BASIS THAT THE SERVICES WERE TO COMMENCE OCTOBER 1. TWO PROPOSALS WERE RECEIVED. SERVRITE'S PROPOSAL WAS THE LOWER ON THE BASIS OF THE THIRTY-THREE MONTHS CONTRACT PERIOD.

B-170014, DEC. 8, 1970

BID PROTEST - NONRESPONSIBILITY DENIAL OF PROTEST BY LOW BIDDER, SERVRITE INTERNATIONAL, LTD., AGAINST MULTI-YEAR PROCUREMENT FOR RECOMBINED MILK AT THULE AND SONDRESTROM AIR BASES, ISSUED BY THE 21ST AIR DIVISION AND AWARDED TO UNITED DAIRY EQUIPMENT COMPANY, SECOND LOW BIDDER. WHERE THE REQUEST FOR PROPOSALS INCLUDED THE PROVISION THAT ANY CONTRACTOR, OTHER THAN INCUMBENT, WOULD BE REQUIRED TO FURNISH AND INSTALL CERTAIN EQUIPMENT AND SUCH MATERIALS HAD TO BE AT THE PORT OF EMBARKATION BY AUGUST 12, 1970, TO BE SEALIFTED BY LAST SHIP SAILING THAT YEAR TO SUBJECT AIR BASES, A PRE-AWARD SURVEY SHOWING PROTESTANT'S SUPPLIERS COULD NOT MEET THE DELIVERY SCHEDULE RESULTING IN A FINDING OF NONRESPONSIBILITY BY THE CONTRACTING OFFICER WAS NOT ARBITRARY OR CAPRICIOUS AND IS NOT SUBJECT TO QUESTION BY GAO; THEREFORE THE PROTEST MUST BE DENIED.

TO SERVRITE INTERNATIONAL, LTD.:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD MADE BY THE 21ST AIR DIVISION, HANCOCK FIELD, SYRACUSE, NEW YORK, UNDER REQUEST FOR PROPOSALS NO. F30665-70-R-0002, A MULTI-YEAR PROCUREMENT FOR RECOMBINED MILK AT THULE AND SONDRESTROM AIR BASES, GREENLAND.

THE REQUEST FOR PROPOSALS (RFP) WAS ISSUED ON APRIL 6, 1970, WITH A CLOSING DATE OF MAY 1, 1970. AFTER TWO MODIFICATIONS THE CLOSING DATE FOR INITIAL PROPOSALS WAS EXTENDED TO MAY 12, 1970. THE RFP PROVIDED FOR THE SUBMITTAL OF PROPOSALS ON THE BASIS THAT THE SERVICES WERE TO COMMENCE OCTOBER 1, 1970, AND RUN FOR A PERIOD OF NINE MONTHS OR FOR A PERIOD OF THIRTY-THREE MONTHS. ALSO PROPOSALS COULD BE SUBMITTED ON THE BASIS THAT THE CONTRACTOR OR THE GOVERNMENT WOULD FURNISH THE INGREDIENTS IN EITHER TIME FRAME.

ANY CONTRACTOR, OTHER THAN THE INCUMBENT CONTRACTOR, WOULD BE REQUIRED TO FURNISH AND INSTALL CERTAIN EQUIPMENT FOR PROCESSING THE RECOMBINED DAIRY PRODUCTS TO BE FURNISHED. THE RFP PROVIDED THAT THE COST OF TRANSPORTING THE CONTRACTOR'S EQUIPMENT AND SUPPLIES FROM THE DESIGNATED PORT OF EMBARKATION AND RETURN THERETO WOULD BE BORNE BY THE GOVERNMENT, AND THAT FOR MATERIALS, SUPPLIES AND EQUIPMENT TO BE SHIPPED FROM THE UNITED STATES THE PORT OF EMBARKATION WOULD BE DAVISVILLE, RHODE ISLAND. IN ORDER FOR ANY SUCH MATERIALS TO BE SEALIFTED, THE MATERIALS HAD TO BE DOCKSIDE IN TIME TO BE LOADED ABOARD THE LAST BOAT SAILING ON AUGUST 12, 1970, TO THULE AND SONDRESTROM AIR BASES IN GREENLAND.

TWO PROPOSALS WERE RECEIVED, ONE FROM UNITED DAIRY EQUIPMENT COMPANY, THE INCUMBENT CONTRACTOR, AND THE OTHER FROM SERVRITE INTERNATIONAL, LTD. SERVRITE'S PROPOSAL WAS THE LOWER ON THE BASIS OF THE THIRTY-THREE MONTHS CONTRACT PERIOD, WITH CONTRACTOR FURNISHED INGREDIENTS.

THE CONTRACTING OFFICER REQUESTED THE DEFENSE CONTRACT ADMINISTRATIVE SERVICES REGION (DCASR), NEW YORK, NEW YORK, TO PERFORM A PREAWARD SURVEY TO DETERMINE SERVRITE'S CAPABILITY TO PERFORM THE REQUIRED SERVICES. LETTER DATED JUNE 9, 1970, THE CONTRACTING OFFICER ADVISED THAT HE DETERMINED SERVRITE TO BE NONRESPONSIBLE FOR THIS PROCUREMENT ON THE BASIS THAT THE PREAWARD SURVEY SHOWED THAT ITS SUPPLIERS COULD NOT DELIVER CERTAIN OF THE EQUIPMENT NECESSARY TO PERFORM THE CONTRACT WORK TO DAVISVILLE, RHODE ISLAND, BY AUGUST 12, 1970, IN TIME TO BE LOADED ABOARD THE LAST SHIP GOING TO THULE AND SONDRESTROM AIR BASES THIS YEAR.

YOU PROTEST THE REJECTION OF YOUR PROPOSAL PRIMARILY ON THE BASIS THAT THE CONTRACTING OFFICER REFUSED TO MEET WITH YOU TO CLARIFY ANY NEGATIVE RESULTS OF THE PREAWARD SURVEY.

THE CONTRACTING OFFICER REPORTS THAT WHILE HE DID NOT REFUSE TO MEET, HE INFORMED YOU THAT HE BELIEVED THAT THE PREAWARD SURVEY WAS THE PROPER MEANS OF EVALUATING THE COMPANY'S ABILITY TO PERFORM AND THAT ANY INFORMATION FURNISHED HIM CONCERNING ITS RESPONSIBILITY WOULD BE REFERRED TO DCASR PERSONNEL FOR THEIR REVIEW, SINCE THEY WERE STAFFED TO MAKE EVALUATIONS OF POTENTIAL CONTRACTORS' ABILITY TO PERFORM.

PREAWARD SURVEYS PERFORMED BY DCASR, SUCH AS THE ONE HERE INVOLVED, ARE GENERALLY ACCOMPLISHED BY A TEAM COMPRISED OF TECHNICAL REPRESENTATIVES IN THE QUALITY ASSURANCE AND PRODUCTION AREAS AND FINANCIAL SPECIALISTS. THE RESULTS OF THEIR INDIVIDUAL INVESTIGATIONS ARE COMPILED AND FORWARDED TO A PREAWARD MONITOR WITH RECOMMENDATIONS IN THEIR RESPECTIVE AREAS OF ANALYSIS. THE PREAWARD FINDINGS AND RECOMMENDATIONS ARE THEN SUBJECTED TO A SUPERVISORY REVIEW AND ULTIMATELY ARE EXAMINED BY A PREAWARD SURVEY BOARD COMPOSED OF KEY PERSONNEL APPOINTED BY THE REGION DIRECTOR. THE FINAL REPORT SUBMITTED TO THE CONTRACTING OFFICER REPRESENTS THE COLLECTIVE JUDGMENTS AND RECOMMENDATIONS OF THE REGION. HOWEVER, THE ULTIMATE AUTHORITY AS TO WHETHER TO GRANT OR DENY AN AWARD STILL RESTS WITH THE CONTRACTING OFFICER WHO EVALUATES THE RECOMMENDATIONS CONTAINED IN THE PREAWARD SURVEY REPORT, TOGETHER WITH OTHER INFORMATION AVAILABLE TO HIM, IN RENDERING A FINAL DETERMINATION REGARDING THE PROPOSED CONTRACTOR'S RESPONSIBILITY.

PARAGRAPH 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDES THAT NO CONTRACT SHALL BE AWARDED TO ANY FIRM UNLESS THE CONTRACTING OFFICER MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE FRAMEWORK OF ASPR 1 902 AND 1-903. ASPR 1-905.4 PROVIDES THAT THE CONTRACTING OFFICER SHALL USE A PREAWARD SURVEY IN DETERMINING THE PROSPECTIVE CONTRACTOR'S RESPONSIBILITY WHEN INFORMATION AVAILABLE TO THE PURCHASING OFFICE IS NOT SUFFICIENT TO ENABLE THE CONTRACTING OFFICER TO MAKE A DETERMINATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR OR WHERE THE SIGNIFICANCE OF THE PROCUREMENT IN DOLLAR VALUE OR NATURE IS DEEMED CRITICAL ENOUGH TO DEMAND IT.

IT IS WELL SETTLED THAT A DETERMINATION OF RESPONSIBILITY, INCLUDING THE PROSPECTIVE CONTRACTOR'S ABILITY TO MAKE DELIVERY WITHIN A CRITICAL TIME PERIOD, IS PRIMARILY THE FUNCTION OF THE CONTRACTING OFFICER AND IS A MATTER OF JUDGMENT INVOLVING A CONSIDERABLE RANGE OF DISCRETION. 39 COMP. GEN. 705, 711 (1960); 37 ID. 430, 435 (1957). ON THE RECORD BEFORE US WE CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION AS TO SERVRITE'S NONRESPONSIBILITY FOR PURPOSES OF THE INSTANT PROCUREMENT WAS NOT ARBITRARY OR CAPRICIOUS AND IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

ACCORDINGLY, YOUR PROTEST IS DENIED.