B-170410, OCT. 21, 1970

B-170410: Oct 21, 1970

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A LOW BIDDER WHO WAS DILIGENT IN 45 OUT OF 92 CONTRACTS FOR A PERIOD OF 1/2 YEAR PRIOR TO PRESENT PROCUREMENT AND WHO IS INCLUDED IN THE NAVY CONTRACTORS EXPERIENCE LIST FOR CURRENT DELINQUENCY DOES NOT QUALIFY AS A "RESPONSIBLE AND RESPONSIVE BIDDER" AND THEREFORE BID WAS PROPERLY REJECTED SINCE BIDDER MUST BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 17. SEVEN BIDS WERE RECEIVED. WAS REJECTED AS A NONRESPONSIBLE BIDDER BASED UPON UNSATISFACTORY FINANCIAL CAPABILITIES AND PAST PERFORMANCE. YOUR FIRM WAS REJECTED AS A NONRESPONSIBLE BIDDER BASED UPON AN UNSATISFACTORY PERFORMANCE RECORD. THE CONTRACT WAS AWARDED TO THE THIRD LOW RESPONSIVE AND RESPONSIBLE BIDDER.

B-170410, OCT. 21, 1970

BID PROTEST - BIDDER RESPONSIBILITY DENIAL OF PROTEST AGAINST REJECTION OF SECOND LOW BID FOR A CONTRACT TO SUPPLY TUBE ADAPTERS TO THE NAVY SHIPS PARTS CONTROL CENTER, ON BASIS OF PAST PERFORMANCE AND AWARD TO KAN-DU TOOL & INSTRUMENT CORP., THIRD LOW BIDDER. A LOW BIDDER WHO WAS DILIGENT IN 45 OUT OF 92 CONTRACTS FOR A PERIOD OF 1/2 YEAR PRIOR TO PRESENT PROCUREMENT AND WHO IS INCLUDED IN THE NAVY CONTRACTORS EXPERIENCE LIST FOR CURRENT DELINQUENCY DOES NOT QUALIFY AS A "RESPONSIBLE AND RESPONSIVE BIDDER" AND THEREFORE BID WAS PROPERLY REJECTED SINCE BIDDER MUST BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE.

TO ALTON IRON WORKS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 17, 1970, AND ENCLOSURES, PROTESTING YOUR FAILURE TO RECEIVE AN AWARD UNDER NAVY INVITATION FOR BIDS NO. N00104-70-B-1996, ISSUED BY THE NAVY SHIPS PARTS CONTROL CENTER (SPCC), MECHANICSBURG, PENNSYLVANIA.

THE INVITATION, A SMALL BUSINESS SET-ASIDE, SOLICITED BIDS FOR A QUANTITY OF 200 TUBE ADAPTERS WITH A BID OPENING DATE OF JUNE 8, 1970. SEVEN BIDS WERE RECEIVED, THE THREE LOWEST BEING AS FOLLOWS:

BIDDER UNIT PRICE TOTAL

AIR STANDARDS CO. $ 4.39 $ 878.00

ALTON IRON WORKS, INC. 7.90 1,580.00

KAN-DU TOOL & INSTRUMENT CORP. 12.48 2,496.00

AIR STANDARDS CO. WAS REJECTED AS A NONRESPONSIBLE BIDDER BASED UPON UNSATISFACTORY FINANCIAL CAPABILITIES AND PAST PERFORMANCE. (PARAGRAPH 1- 903.1(I) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).)

YOUR FIRM WAS REJECTED AS A NONRESPONSIBLE BIDDER BASED UPON AN UNSATISFACTORY PERFORMANCE RECORD. (ASPR 1-903.1(II).) THE CONTRACT WAS AWARDED TO THE THIRD LOW RESPONSIVE AND RESPONSIBLE BIDDER, KAN-DU TOOL & INSTRUMENT CORP., ON JUNE 26, 1970. YOU REQUEST THAT THE AWARD BE WITHDRAWN AND REVIEW OF THE BIDS BE MADE AS TO THE RESPONSIBILITY OF THE BIDDERS.

IT IS ADMINISTRATIVELY REPORTED THAT WHILE NO FORMAL PREAWARD SURVEY OF YOUR COMPANY WAS REQUESTED UNDER INVITATION -1996, IN VIEW OF THE SMALL DOLLAR VALUE ($1,580), AN INQUIRY WAS MADE OF DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), GARDEN CITY, AS TO YOUR CURRENT PERFORMANCE. THE LATEST FORMAL PREAWARD SURVEY ON FILE AT SPCC, NO. 0940303, DATED APRIL 2, 1970, REVEALED THAT FOR THE PERIOD OCTOBER 1969 TO APRIL 1970, YOUR FIRM COMPLETED 92 CONTRACTS, OF WHICH 45 WERE DELINQUENT FOR A PERIOD OF FROM 1 WEEK TO 4 MONTHS. THE SURVEY FURTHER STATED THAT THE NUMBER OF DELINQUENT CONTRACTS COMPLETED DURING THAT PERIOD WOULD HAVE BEEN GREATER HAD NOT YOUR COMPANY RECEIVED RESCHEDULING ON OTHER CONTRACTS. INFORMATION RECEIVED FROM DCASD SUBSEQUENT TO THE RECEIPT OF YOUR PROTEST INDICATES THAT FOR THE PERIOD OF JANUARY 1970 THROUGH MAY 1970, 34 PERCENT OF THE CONTRACTS DELIVERED WERE DELINQUENT AND, AGAIN, THE DELINQUENCY WOULD HAVE BEEN HIGHER EXCEPT FOR RESCHEDULING OF OTHER CONTRACTS. AUGMENTING THIS INFORMATION, IT IS REPORTED THAT YOUR FIRM IS INCLUDED IN THE LISTING OF THE NAVY CONTRACTORS EXPERIENCE LIST (NCEL) FOR THE REASON THAT YOU ARE NOW DELINQUENT IN CURRENT CONTRACT PERFORMANCE OR HAVE A HISTORY OF DELINQUENCY IN PAST CONTRACT PERFORMANCE. YOUR FIRM IS FURTHER REPORTED TO HAVE BEEN ON THE NCEL FOR SOME TIME. WHILE INFORMATION RECEIVED IS THAT YOUR FIRM IS SHOWING IMPROVEMENT IN PERFORMANCE, YOUR CURRENT NUMBER OF CONTRACTS IN-HOUSE WERE FOUND TO BE MORE THAN COULD BE SATISFACTORILY PERFORMED IN THE CONSIDERED JUDGMENT OF THE DCASD OFFICIALS.

IN VIEW OF THE FACTS CITED ABOVE AND BASED ON INFORMATION AVAILABLE AND KNOWN TO THE CONTRACTING OFFICER AT THE TIME, AN AFFIRMATIVE DETERMINATION COULD NOT BE MADE THAT YOUR COMPANY WAS A RESPONSIBLE BIDDER AND YOUR BID WAS THEREFORE REJECTED.

UNDER 10 U.S.C. 2305(C) CONTRACTS MAY BE AWARDED UNDER ADVERTISED PROCUREMENTS ONLY TO RESPONSIBLE AND RESPONSIVE BIDDERS. CONSISTENT WITH THAT STATUTORY LIMITATION, ASPR 1-904.1 PRECLUDES AWARDS OF THIS KIND UNLESS THE CONTRACTING OFFICER FIRST MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE UNDER THE CRITERIA SET OUT IN ASPR 1-903. ONE OF THE CRITERIA SET OUT AT ASPR 1 903.1(II) IS THAT A PROSPECTIVE CONTRACTOR MUST "BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE, TAKING INTO CONSIDERATION ALL EXISTING BUSINESS COMMITMENTS, COMMERCIAL AS WELL AS GOVERNMENTAL."

YOUR BID UNDER THE CURRENT INVITATION WAS REJECTED FOR THE REASON THAT YOU WERE NOT CONSIDERED TO BE A RESPONSIBLE BIDDER AS DEFINED BY ASPR 1- 902 AND 1-903. THESE SECTIONS SET FORTH THE GENERAL POLICY, STANDARDS, AND REQUIREMENTS FOR MAKING A DETERMINATION OF RESPONSIBILITY OF PROSPECTIVE CONTRACTORS. IN MAKING DETERMINATION OF RESPONSIBILITY, CONTRACTING OFFICERS ARE REQUIRED TO CONSIDER THE BIDDERS' CAPABILITIES AND THEIR FITNESS AND ABILITY TO SUCCESSFULLY PERFORM CONTRACT REQUIREMENTS. 26 COMP. GEN. 676 (1947). WHILE YOU REFER TO A PAST CONTRACT SUCCESSFULLY COMPLETED FOR THE SAME ITEM, WE ARE ADVISED THAT YOU WERE DELINQUENT ON PERFORMANCE IN 45 OUT OF 92 CONTRACTS COMPLETED IN 1969 -70. FURTHER, IT WAS FOUND THAT YOUR ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE OF AN ADDITIONAL PROCUREMENT AWARD WAS QUESTIONABLE.

SINCE THE RECORD BEFORE US SUPPORTS THE CONTRACTING OFFICER'S DETERMINATION AS TO NONRESPONSIBILITY, WE DO NOT FIND ANY LEGAL BASIS FOR OBJECTION TO THE ACTION TAKEN. 43 COMP. GEN. 228 (1963).

ACCORDINGLY, YOUR PROTEST IS DENIED.