B-170455, JUN 9, 1971

B-170455: Jun 9, 1971

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NO EVIDENCE EXISTS IN THE RECORD TO SHOW THAT THE ADMINISTRATIVE DETERMINATION THAT THE LOW BIDDER WAS RESPONSIBLE WAS CAPRICIOUS OR ARBITRARY. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED JULY 24. WAS ISSUED MARCH 17. FOUR BIDS WERE RECEIVED AT THE BID OPENING ON APRIL 28. IT IS ADMINISTRATIVELY REPORTED THAT BECAUSE OF THE WIDE DISPARITY IN BID PRICES BETWEEN THE LOWEST BID AND THE SECOND LOW BID PRICE OFFERED BY STRYCO MANUFACTURING COMPANY (A DIFFERENCE OF $5. DELONICS WAS REQUESTED TO CONFIRM ITS BID PRICE. IT IS FURTHER REPORTED THAT THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGIONAL OFFICE (DCASR). THE CONTRACT WAS AWARDED TO DELONICS ON JUNE 5. YOU ALLEGED THAT DELONICS DID NOT HAVE THE PLANT FACILITIES.

B-170455, JUN 9, 1971

BID PROTEST - BIDDER RESPONSIBILITY DENIAL OF PROTEST AGAINST AWARD OF A CONTRACT TO DELONICS CORPORATION, LOW BIDDER, UNDER AN IFB ISSUED BY NAVY PURCHASING OFFICE, WASHINGTON NAVY YARD, FOR WELDING MACHINES. NO EVIDENCE EXISTS IN THE RECORD TO SHOW THAT THE ADMINISTRATIVE DETERMINATION THAT THE LOW BIDDER WAS RESPONSIBLE WAS CAPRICIOUS OR ARBITRARY, SO AS TO JUSTIFY INTERVENTION BY GAO.

TO SCIAKY BROS., INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 24, 1970, WITH ENCLOSURES, YOUR UNDATED LETTER RECEIVED IN THIS OFFICE OCTOBER 12, 1970, AND YOUR LETTER OF APRIL 21, 1971, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT TO DELONICS CORPORATION UNDER INVITATION FOR BIDS NO. N00600-70-B -0373 ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON NAVY YARD.

THE SUBJECT SOLICITATION, CALLING FOR THREE WELDING MACHINES, WAS ISSUED MARCH 17, 1970. FOUR BIDS WERE RECEIVED AT THE BID OPENING ON APRIL 28, 1970, THE LOWEST FROM DELONICS CORPORATION AT $60,001 F.O.B. DESTINATION, OR $58,951 F.O.B. ORIGIN.

IT IS ADMINISTRATIVELY REPORTED THAT BECAUSE OF THE WIDE DISPARITY IN BID PRICES BETWEEN THE LOWEST BID AND THE SECOND LOW BID PRICE OFFERED BY STRYCO MANUFACTURING COMPANY (A DIFFERENCE OF $5,195 PER UNIT F.O.B. DESTINATION), DELONICS WAS REQUESTED TO CONFIRM ITS BID PRICE. THE RECORD INDICATES THAT DELONICS CONFIRMED ITS PRICE BY LETTER DATED APRIL 29, 1970. IT IS FURTHER REPORTED THAT THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGIONAL OFFICE (DCASR), NEW YORK, PERFORMED A PRE-AWARD SURVEY ON DELONICS, AND BY ITS REPORT DATED MAY 15, 1970, RECOMMENDED THAT COMPLETE AWARD BE MADE TO THAT FIRM. THE CONTRACT WAS AWARDED TO DELONICS ON JUNE 5, 1970.

BY LETTER TO THE NAVY PURCHASING OFFICE DATED JUNE 2, 1970, SCIAKY PROTESTED AWARD TO EITHER DELONICS OR STRYCO MANUFACTURING COMPANY, THE SECOND LOW BIDDER. YOU ALLEGED THAT DELONICS DID NOT HAVE THE PLANT FACILITIES, DESIGN CAPABILITIES, OR FINANCIAL STRENGTH TO MEET THE REQUIREMENTS OF THE PROCUREMENT. YOU FURTHER ALLEGED THAT STRYCO COULD NOT PERFORM THE CONTRACT BECAUSE ITS FACILITIES HAD BEEN DESTROYED BY FIRE.

THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION, SUBJECT TO QUESTION BY OUR OFFICE ONLY WHERE ARBITRARY OR CAPRICIOUS OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. COMP. GEN. 430, 435 (1957). DCASR IN ITS PRE-AWARD SURVEY RECOMMENDED COMPLETE AWARD OF CONTRACT TO DELONICS. THE RECORD PROVIDES NO BASIS TO CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION OF DELONICS' RESPONSIBILITY WAS ARBITRARY OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. ACCORDINGLY, WE FIND THAT THE AWARD WAS PROPER.

YOU ALSO RAISED QUESTIONS ABOUT THE RESPONSIBILITY OF THE SECOND LOW BIDDER, STRYCO MANUFACTURING COMPANY. SINCE AWARD TO THIS FIRM WAS NOT CONTEMPLATED, NO DETERMINATION OF RESPONSIBILITY WAS MADE. IT IS REPORTED THAT YOUR REMARKS IN THIS REGARD WERE REFERRED TO THE NAVY PURCHASING OFFICE'S CONTRACT ADMINISTRATION DIVISION FOR INFORMATION AND APPROPRIATE ACTION.

BY YOUR UNDATED LETTER RECEIVED IN THIS OFFICE ON OCTOBER 12, 1970, YOU REQUESTED A COPY OF DELONICS' FIRST ARTICLE TEST REPORTS REQUIRED BY THE CONTRACT. OUR DECISION HAS BEEN HELD UP PENDING RECEIPT OF SUCH REPORTS. ON APRIL 13, 1971, WE SUPPLIED YOU WITH A COPY OF THE FIRST ARTICLE TEST REPORTS DATED MARCH 18, 1971, WHICH SHOW COMPLIANCE OF DELONICS' EQUIPMENT WITH THE SPECIFICATIONS. BY LETTER OF APRIL 21, 1971, YOU ALLEGED IN SOME DETAIL THAT THE DELONICS' EQUIPMENT DID NOT MEET THE SPECIFICATIONS, BASING YOUR ALLEGATIONS ON THE INFORMATION CONTAINED IN THE TEST REPORTS.

YOUR ALLEGATIONS CONCERNING THE EQUIPMENT'S COMPLIANCE WITH TECHNICAL SPECIFICATIONS ARE A MATTER OF CONTRACT ADMINISTRATION WHICH ORDINARILY DO NOT BEAR ON THE LEGALITY OF AWARD AND ARE PRIMARILY WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY. ACCORDINGLY, BY SEPARATE LETTER DATED TODAY, WE ARE FORWARDING A COPY OF YOUR APRIL 21, 1971, LETTER TO THE SECRETARY OF THE NAVY FOR APPROPRIATE CONSIDERATION.