B-171240, JAN 28, 1971

B-171240: Jan 28, 1971

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THE EVALUATION REPORT INDICATED THAT GTM WAS CAPABLE OF PERFORMING THE WORK REQUIREMENTS OF THE IFB AND THAT THE COMPANY WAS CURRENTLY FURNISHING A QUANTITY OF BATTERY-OPERATED CLOCKS UNDER A DEFENSE DEPARTMENT CONTRACT WHICH WAS 60 DAYS AHEAD OF THE REQUIRED DELIVERY SCHEDULE. PROTESTANT'S CONTENTION THAT THE PROCUREMENT WAS NOT LIMITED TO BIDDERS WITH ESTABLISHED PRODUCTION HISTORY IS NOT WELL GROUNDED. TO MOREY PRODUCTS COMPANY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12. FOR ITEMS 52 THROUGH 73 OF A REQUIREMENT FOR CLOCKS WHICH WAS SET FORTH IN SOLICITATION NO. WHICH WAS INCORPORATED BY REFERENCE INTO THE SUBJECT SOLICITATION. CONTAINED THE FOLLOWING PERTINENT PROVISION: "4.4.3 SINCE IT IS IMPRACTICAL TO ATTEMPT TO PERFORM A LIFE TEST ON THESE WALL CLOCKS.

B-171240, JAN 28, 1971

BID PROTEST - BIDDER RESPONSIBILITY DENIAL OF PROTEST OF MOREY PRODUCTS COMPANY AGAINST THE AWARD OF A REQUIREMENTS CONTRACT FOR CLOCKS ISSUED BY THE GENERAL SERVICE ADMINISTRATION TO GERMANTOWN TOOL AND MACHINE WORKS, INC. (GTM). THE EVALUATION REPORT INDICATED THAT GTM WAS CAPABLE OF PERFORMING THE WORK REQUIREMENTS OF THE IFB AND THAT THE COMPANY WAS CURRENTLY FURNISHING A QUANTITY OF BATTERY-OPERATED CLOCKS UNDER A DEFENSE DEPARTMENT CONTRACT WHICH WAS 60 DAYS AHEAD OF THE REQUIRED DELIVERY SCHEDULE; THEREFORE, PROTESTANT'S CONTENTION THAT THE PROCUREMENT WAS NOT LIMITED TO BIDDERS WITH ESTABLISHED PRODUCTION HISTORY IS NOT WELL GROUNDED.

TO MOREY PRODUCTS COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12, 1970, AND SUBSEQUENT CORRESPONDENCE CONCERNING YOUR PROTEST AGAINST THE AWARD BY THE GENERAL SERVICES ADMINISTRATION (GSA), OF A REQUIREMENTS CONTRACT TO GERMANTOWN TOOL AND MACHINE WORKS, INC. (GTM), FOR ITEMS 52 THROUGH 73 OF A REQUIREMENT FOR CLOCKS WHICH WAS SET FORTH IN SOLICITATION NO. FPNGG-V 70980-A-7-27-70, DATED JUNE 25, 1970, IN PERTINENT PART AS FOLLOWS:

"CLOCK, WALL (BATTERY OPERATED): IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATION GG-C-001072 (GSA-FSS), DATED APRIL 7, 1967, AND AMENDMENT 2, DATED JULY 2, 1969. TYPE I - 8 INCHES (20.3 CM) MINIMUM DIAMETER DIAL. GRADE B - CLOCKS CAPABLE OF KEEPING ACCURATE TIME TO WITHIN 5 MINUTES PER MONTH. STYLE A - 12 HOUR CLOCKS. UNIT PACKAGING (LEVEL B): EACH CLOCK SHALL BE PACKAGED IN ACCORDANCE PARA. 5.1.2.

SHIPPING CONTAINER

PACKING (LEVEL B): TEN (10) PACKAGED CLOCKS SHALL BE PACKED IN ACCORDANCE WITH PARA. 5.2.2. 5O3.

MARKING: MARKING SHALL BE IN ACCORDANCE WITH PARA. 5.3.

FSN 6645-935-4243 52. HINGHAM, MASS. 5 50

CLOCK, WALL, (BATTERY OPERATED): IN ACCORDANCE WITH INTERIM FEDERAL SPECIFICATION GG-C-001072 (GSA-FSS), DATED APRIL 7, 1967 AND AMENDMENT 2, DATED JULY 2, 1969. TYPE II - 11 INCHES (27.9 CM) MINIMUM DIAMETER DIAL; GRADE B - CLOCKS CAPABLE OF KEEPING ACCURATE TIME TO WITHIN FIVE MINUTES PER MONTH; STYLE A 12 HOUR CLOCKS. UNIT PACKAGING (LEVEL B): EACH CLOCK SHALL BE PACKAGED IN ACCORDANCE WITH PARA. 5.1.2. SHIPPING CONTAINER PACKING (LEVEL B): TEN (10) PACKAGED CLOCKS SHALL BE PACKED IN ACCORDANCE WITH PARA. 5.2.2. MARKING: MARKING SHALL BE IN ACCORDANCE WITH PARA. 5.3.

FSN 6645-935-4244

* * * ** 73. AUBURN, WASH. 120 950"

INTERIM FEDERAL SPECIFICATION GG-C-001072 (GSA-FSS), DATED APRIL 7, 1967, WHICH WAS INCORPORATED BY REFERENCE INTO THE SUBJECT SOLICITATION, CONTAINED THE FOLLOWING PERTINENT PROVISION:

"4.4.3 SINCE IT IS IMPRACTICAL TO ATTEMPT TO PERFORM A LIFE TEST ON THESE WALL CLOCKS, THE MANUFACTURER SHALL PROVIDE SATISFACTORY PROOF TO THE GOVERNMENT INSPECTOR THAT THE CLOCK HE PROPOSES TO SUPPLY WILL IN FACT LAST THE SPECIFIED TIME PERIOD LISTED IN 3.5.4. (THIS PROOF MAY BE IN THE FORM OF RECORDS SHOWING THE PERFORMANCE OF SIMILAR CLOCKS OVER THE SPECIFIED PERIOD OF TIME OR IN THE CASE OF NEW CLOCKS SOME SUITABLE WARRANTEE TO THIS EFFECT.)"

WHEN BIDS WERE OPENED ON JULY 27, 1970, GTM WAS DETERMINED TO BE THE LOWEST RESPONSIVE BIDDER FOR THE SUBJECT ITEMS. GSA SUBSEQUENTLY PROCEEDED, PRIOR TO MAKING AN AWARD FOR THE REQUIREMENT, TO DETERMINE THE RESPONSIBILITY OF GTM IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.310-6(A), 1-1.310-4 AND 1-1.310-5 WHICH READ AS FOLLOWS:

"SEC 1-1.310-6 DETERMINATION OF RESPONSIBILITY.

(A) NO CONTRACT SHALL BE AWARDED TO ANY PERSON OR FIRM UNLESS THE CONTRACTING OFFICER HAS FIRST DETERMINED THAT SUCH PERSON OR FIRM IS RESPONSIBLE WITHIN THE MEANING OF SECS 1-1.310-4 AND 1-1.310-5. THE SIGNING OF A CONTRACT SHALL BE DEEMED TO BE A CERTIFICATION BY THE CONTRACTING OFFICER THAT HE HAS DETERMINED THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITH RESPECT TO THAT CONTRACT.

"SEC 1-1.310-4 GENERAL POLICY.

IT IS THE POLICY THAT CONTRACTS SHALL BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. A 'RESPONSIBLE PROSPECTIVE CONTRACTOR' IS ONE WHICH IS FOUND BY THE CONTRACTING OFFICER TO MEET THE MINIMUM STANDARDS SET FORTH IN SEC 1-1.310-5 AND SUCH ADDITIONAL STANDARDS AS MAY BE PRESCRIBED FOR SPECIFIC PROCUREMENTS BY THE AGENCY CONCERNED.

"SEC 1-1.310-5 STANDARDS.

(A) IN ORDER TO QUALIFY AS RESPONSIBLE, A PROSPECTIVE CONTRACTOR MUST, IN THE OPINION OF THE CONTRACTING OFFICER, MEET THE FOLLOWING STANDARDS AS THEY RELATE TO THE PARTICULAR PROCUREMENT UNDER CONSIDERATION:

(1) HAS ADEQUATE FINANCIAL RESOURCES FOR PERFORMANCE, OR HAS THE ABILITY TO OBTAIN SUCH RESOURCES AS REQUIRED DURING PERFORMANCE;

(2) HAS THE NECESSARY EXPERIENCE, ORGANIZATION, TECHNICAL QUALIFICATIONS, SKILLS, AND FACILITIES, OR HAS THE ABILITY TO OBTAIN THEM (INCLUDING PROBABLE SUBCONTRACTOR ARRANGEMENTS);

(3) IS ABLE TO COMPLY WITH THE PROPOSED OR REQUIRED TIME OF DELIVERY OR PERFORMANCE SCHEDULE;

(4) HAS A SATISFACTORY RECORD OF INTEGRITY, JUDGMENT, AND PERFORMANCE (CONTRACTORS WHICH ARE SERIOUSLY DELINQUENT IN CURRENT CONTRACT PERFORMANCE, CONSIDERING THE NUMBER OF CONTRACTS AND THE EXTENT OF DELINQUENCIES OF EACH, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR COMPELLING CIRCUMSTANCES, BE PRESUMED TO BE UNABLE TO FULFILL THIS REQUIREMENT);

(5)APPEAR TO BE ABLE TO CONFORM TO THE REQUIREMENTS OF THE EQUAL OPPORTUNITY CLAUSE (SEE SEC 1-12.803-2);

(6) IS OTHERWISE QUALIFIED AND ELIGIBLE TO RECEIVE AN AWARD UNDER APPLICABLE LAWS AND REGULATIONS; E.G., SUBPART 1-12.6.

(B) ACCEPTABLE EVIDENCE OF 'ABILITY TO OBTAIN' FINANCIAL RESOURCES, EXPERIENCE, ORGANIZATION, TECHNICAL QUALIFICATIONS, SKILLS, AND FACILITIES (SEE (A) (1) AND (2) OF THIS SEC 1-1.310-5), GENERALLY SHALL BE A FIRM COMMITMENT OR ARRANGEMENT FOR THE RENTAL, PURCHASE, OR OTHER ACQUISITION THEREOF."

THE RECORD SHOWS THAT IN AUGUST 1970, GSA QUALITY CONTROL REPRESENTATIVES COMPLETED AN ON-SITE EVALUATION OF GTM'S FACILITIES AND EQUIPMENT TO ASCERTAIN WHETHER THE CONCERN MET THE STANDARDS OF RESPONSIBILITY OF PROSPECTIVE CONTRACTORS.

THE EVALUATION REPORT INDICATED THAT THE COMPANY WAS CAPABLE OF PERFORMING THE WORK REQUIREMENTS OF THE IFB, SINCE GTM ACHIEVED ACCEPTABLE RATINGS OR BETTER FOR ITS PRODUCTION CAPACITY, SUPPLIER COMMITMENTS, QUALITY CONTROL SYSTEM, EQUAL OPPORTUNITY PROGRAM, TESTING FACILITIES, INSPECTION RECORDS AND MANUFACTURING EQUIPMENT. THE REPORT ALSO NOTED THAT THE COMPANY HAD ADEQUATE SPACE AND EMPLOYEES TO ACCOMPLISH THE WORK. CONCERNING THE COMPANY'S PERFORMANCE RECORD THE REPORT NOTED THE COMPANY WAS CURRENTLY FURNISHING A QUANTITY OF 4,500 BATTERY-OPERATED CLOCKS UNDER DOD CONTRACT NO. N00104-69-D-0538 AND WAS 60 DAYS AHEAD OF THE REQUIRED DELIVERY SCHEDULE. GSA ALSO INVESTIGATED THE FINANCIAL RESOURCES OF GTM IN AUGUST 1970, AND CONCLUDED THAT THE COMPANY MERITED A SATISFACTORY RATING IN THIS AREA IN CONSIDERATION OF ITS NET WORKING CAPITAL, NET WORTH AND NET SALES.

IN VIEW OF THE ABOVE DATA GSA CONCLUDED THAT GTM MET ALL THE STANDARDS OF RESPONSIBILITY, SET FORTH ABOVE IN THE QUOTED REGULATION, AND MADE AN AWARD TO THE COMPANY FOR THE ITEMS ON SEPTEMBER 10, 1970.

YOU CONTEND THAT GTM HAS NOT PREVIOUSLY SUPPLIED THE EXACT CLOCKS IN QUESTION AND THEREFORE DID NOT COMPLY WITH THE REQUIREMENTS OF SECTION 4.4.3 OF INTERIM FEDERAL SPECIFICATION GG-C-001072, QUOTED ABOVE; THAT THE SUBJECT PROCUREMENT SHOULD HAVE BEEN RESTRICTED TO BIDDERS WITH AN ESTABLISHED PRODUCTION HISTORY FOR THE ITEMS; THAT GTM LACKED FIRM SUPPLIER COMMITMENTS FOR THE CLOCK MOTORS AT THE TIME OF BID OPENING; AND THAT THE CLOCK MOTORS TO BE USED UNDER THE CONTRACT WILL BE OF FOREIGN ORIGIN. ADDITIONALLY, YOU NOTE THAT GTM'S BID ON THE SUBJECT ITEMS WAS SUBSTANTIALLY LOWER THAN THE BID GTM SUBMITTED FOR THE SAME ITEMS FOR THE PREVIOUS CONTRACT PERIOD, AND YOU CONTEND THAT, IN VIEW THEREOF, THE CONCERN WILL BE FURNISHING A "CHANGED, CHEAPER-MADE CLOCK."

GSA STATES THAT WHILE YOU MAY REGARD IT TO BE UNFAIR TO CONSIDER THE BIDS OF FIRMS WHICH HAVE NOT PREVIOUSLY SUPPLIED THE EXACT CLOCKS IN QUESTION, THE IMPOSITION OF SUCH A REQUIREMENT WOULD INEVITABLY LESSEN COMPETITION, PROBABLY RESULT IN INCREASED COSTS OF PROCUREMENT, AND MAKE INELIGIBLE MANY CONCERNS, THE FACILITIES OF WHICH GSA CONSIDERS ARE CAPABLE OF SUPPLYING ITS NEEDS.

IN THIS CONNECTION IT SHOULD BE NOTED THAT THE PRE-AWARD SURVEY STATED THAT GTM WAS CURRENTLY DELIVERING A QUANTITY OF BATTERY-POWERED CLOCKS, WHICH ARE APPARENTLY SIMILAR TO THE ITEMS IN THE SUBJECT PROCUREMENT, UNDER A DEPARTMENT OF DEFENSE CONTRACT AHEAD OF THE TIME SCHEDULED FOR PERFORMANCE. IN VIEW THEREOF, WE ARE UNABLE TO MAINTAIN THAT THE FAILURE OF GTM TO HAVE PREVIOUSLY SUPPLIED CLOCKS IDENTICAL TO THE ONES FOR WHICH IT RECEIVED AN AWARD IN THE SUBJECT SOLICITATION MAY BE REGARDED AS A SUFFICIENT BASIS FOR QUESTIONING THE PROPRIETY OF THE AWARD.

CONCERNING YOUR CLAIM THAT GTM DID NOT COMPLY WITH THE INFORMATION REQUIRED IN PARAGRAPH 4.4.3 OF SPECIFICATION GG-C-001072, QUOTED ABOVE, CONCERNING THE DURABILITY OF THE DEVICES OVER THE REQUIRED PERIOD OF PERFORMANCE, GSA POINTS OUT THAT GTM PROPOSES TO FURNISH A SUITABLE WARRANTY WITH EACH CLOCK PROCURED UNDER THE CONTRACT AND THAT SUCH PROPOSAL CONFORMS WITH THE INTENDED REQUIREMENT OF THE PARAGRAPH TO ASSURE THE DURABILITY OF "NEW" CLOCKS. WE CONCUR WITH SUCH VIEW.

YOU ALSO ALLEGE THAT THE PROCUREMENT SHOULD HAVE BEEN RESTRICTED TO CONCERNS WITH AN ESTABLISHED PRODUCTION HISTORY. IN THIS REGARD GSA STATES THAT SUCH RESTRICTION IS EMPLOYED FOR PROCUREMENT OF ITEMS ON THE QUALIFIED PRODUCTS LISTS, BUT THAT THE RESTRICTION IS LIMITED TO RELATIVELY RARE SITUATIONS WHERE PRODUCTS MUST BE TESTED IN ADVANCE DUE TO THE NATURE OR THE CONTEMPLATED USE OF THE PRODUCT. HOWEVER, GSA MAINTAINS THAT THERE IS NO SUCH COMPELLING REASON FOR INCLUDING THE TYPES OF CLOCKS PROCURED HERE ON SUCH LISTS, AND WE SEE NO VALID BASIS FOR DISAGREEING WITH GSA'S POSITION THAT THE CLOCKS IN QUESTION NEED NOT BE PLACED ON THE QUALIFIED PRODUCTS LIST.

WITH RESPECT TO YOUR ALLEGATION THAT GTM LACKED FIRM SUPPLIER COMMITMENTS FOR THE COMPONENTS OF THE CLOCKS AT THE TIME OF BID OPENING THE PRE-AWARD SURVEY REPORTED THAT IN AUGUST 1970 GTM POSSESSED FIRM SUPPLIER COMMITMENTS FOR THE MOVEMENTS FROM THE CHRONOS CLOCK CORPORATION OF NEW YORK CITY. SUBSEQUENTLY, GTM MADE ARRANGEMENTS TO PROCURE ALL OF ITS MOVEMENTS FROM THE GENERAL TIME CORPORATION.

THERE IS NO REQUIREMENT IN FPR 1-1.310-5, QUOTED ABOVE, WHICH REQUIRES THAT A RESPONSIBLE, PROSPECTIVE CONTRACTOR POSSESS FIRM SUPPLIER COMMITMENTS AT THE TIME OF BID OPENING. CONVERSELY, THE CITED REGULATION STATES THAT THE PROSPECTIVE CONTRACTOR MUST HAVE THE NECESSARY ORGANIZATION, SKILLS AND FACILITIES (INCLUDING PROBABLE SUB CONTRACTOR ARRANGEMENTS) OR THE ABILITY TO OBTAIN THEM. OBVIOUSLY, A BIDDER MIGHT NOT HAVE ALL THE NECESSARY SKILLS AND SUPPLIER COMMITMENTS AT BID OPENING, BUT IF HE POSSESSES THE ABILITY TO OBTAIN SUCH SKILLS AND COMMITMENTS BY THE TIME OF AWARD HE COULD STILL BE CONSIDERED A RESPONSIBLE CONTRACTOR. SINCE GTM POSSESSED FIRM COMMITMENTS AT THE TIME OF THE PRE-AWARD SURVEY WE SEE NO BASIS FOR QUESTIONING THE PROPRIETY OF AWARD MERELY BECAUSE IT MIGHT HAVE LACKED SUCH COMMITMENTS AT BID OPENING.

IN CONNECTION WITH YOUR ALLEGATION THAT THE MOVEMENTS SUPPLIED TO GTM MIGHT BE OF FOREIGN ORIGIN, GSA HAS ADVISED THAT THE MOVEMENTS SUPPLIED TO THE CONTRACTOR BY THE GENERAL TIME CORPORATION ARE MANUFACTURED AT DAVIDSON, NORTH CAROLINA. ACCORDINGLY, THERE WOULD NOT APPEAR TO BE ANY BASIS FOR QUESTIONING THE CONTRACTOR'S COMPLIANCE WITH THE REQUIREMENTS OF THE BUY AMERICAN ACT, 41 U.S.C. SECS 10A-10C.

WITH RESPECT TO YOUR ALLEGATION THAT GTM WILL FURNISH A "CHANGED, CHEAPER -MADE CLOCK" BECAUSE OF THE SUBSTANTIALLY LOWER PRICES THE COMPANY SUBMITTED FOR THE ITEMS COMPARED TO THE PRICES IT QUOTED ON LAST YEAR'S PROCUREMENT OF THE IDENTICAL ITEMS, WE BELIEVE SUCH CONCLUSION IS SPECULATIVE AND NOT A SUBSTANTIAL BASIS FOR DISTURBING THE AWARD. IN THIS CONNECTION GTM'S CONTRACT PROVIDES THAT THE CLOCKS ARE TO BE CONSTRUCTED IN ACCORDANCE WITH THE APPLICABLE SPECIFICATION AND THAT GSA MAY TERMINATE THE CONTRACT IF THE ARTICLES ARE NOT IN CONFORMITY WITH THE SPECIFICATION.

WHETHER A BIDDER IS, OR IS NOT, CAPABLE OF PRODUCING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT, AND ABSENT EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITIES WAS BASED ON ERROR, FRAUD, OR FAVORITISM, THE ADVERSE FINDINGS OF THE CONTRACTING OFFICER ARE GENERALLY CONCLUSIVE. 46 COMP. GEN. 371, 372 (1966). WE HAVE ALSO HELD THAT THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT, WHICH, WHILE IT SHOULD BE BASED ON FACT AND ARRIVED AT IN GOOD FAITH, MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED. SINCE CONTRACTING OFFICERS ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY TO DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT.

OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICERS CHARGED WITH THE DUTY AND RESPONSIBILITY OF MAKING SUCH DECISIONS UNLESS THERE IS CLEARLY NO SUBSTANTIAL BASIS FOR THEIR ACTION OR THERE IS EVIDENCE OF BAD FAITH. 45 COMP. GEN. 4 (1965). WE HAVE CAREFULLY REVIEWED AND CONSIDERED THE INFORMATION RELIED UPON BY GSA IN MAKING THE DETERMINATION THAT GTM WAS RESPONSIBLE AND WE FIND NO BASIS UPON WHICH OUR OFFICE WOULD BE JUSTIFIED IN CONCLUDING THAT THERE WAS AN ABUSE OF THE ADMINISTRATIVE DISCRETION EXERCISED. IN VIEW THEREOF, WE MAY NOT PROPERLY OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION THAT GTM WAS RESPONSIBLE FOR PURPOSES OF THIS PROCUREMENT. IN THIS CONNECTION IT SHOULD ALSO BE NOTED THAT, SUBSEQUENT TO AWARD, A GSA QUALITY CONTROL INSPECTOR CONTACTED THE CONTRACTOR ON FOUR SEPARATE OCCASIONS TO INSPECT THE PROGRESS OF THE WORK AND HAS REPORTED THAT IT DOES NOT APPEAR GTM WILL HAVE ANY PROBLEMS IN FULFILLING THE CONTRACT.

FOR THE REASONS SET FORTH ABOVE YOUR PROTEST MUST BE DENIED.