B-171468, MAY 21, 1971

B-171468: May 21, 1971

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FINDS THAT THE RECORD ADEQUATELY SUPPORTS THE ADMINISTRATIVE POSITION THAT PORTESTANT WAS NONRESPONSIBLE. ADVISING OF THE SPECIFIC GROUNDS UPON WHICH PROTEST OF Z-D PRODUCTS IS MADE AGAINST THE AWARD MADE BY FRANKFORD ARSENAL. THE CONTRACT WAS AWARDED ON NOVEMBER 19. THE REPORT OF THE ARMY MATERIEL COMMAND ON THE MERITS OF THE PROTEST WAS FURNISHED TO YOU FOR INFORMATION AND COMMENT. YOU ADVISED THAT THE ADMINISTRATIVE REPORT - DEALING WITH BASES UPON WHICH IT WAS DETERMINED THAT Z-D PRODUCTS WAS A NONRESPONSIBLE BIDDER FOR THE PURPOSE OF THIS PROCUREMENT - DID NOT ANSWER EFFECTIVELY THE ALLEGATION THAT Z-D PRODUCTS WAS. STILL IS. YOUR COMMENTS ON THE ADMINISTRATIVE REPORT DO NOT OVERCOME THE ADVERSE FINDINGS UPON WHICH THE DETERMINATION WAS BASED.

B-171468, MAY 21, 1971

BID PROTEST - BIDDER RESPONSIBILITY DENYING PROTEST OF Z-D PRODUCTS AGAINST THE AWARD MADE BY THE FRANKFORT ARSENAL, DEPARTMENT OF THE ARMY, UNDER AN IFB TO REMCO HYDRAULICS, INC., AND REJECTION OF ITS LOW BID. THE COMP. GEN. FINDS THAT THE RECORD ADEQUATELY SUPPORTS THE ADMINISTRATIVE POSITION THAT PORTESTANT WAS NONRESPONSIBLE.

TO CLIFFORD, WARNKE, GLASS, MCILWAIN & FINNEY:

WE REFER TO YOUR LETTER OF JANUARY 4, 1971, ADVISING OF THE SPECIFIC GROUNDS UPON WHICH PROTEST OF Z-D PRODUCTS IS MADE AGAINST THE AWARD MADE BY FRANKFORD ARSENAL, DEPARTMENT OF THE ARMY, UNDER FORMALLY ADVERTISED SOLICITATION NO. DAAA25-71-B-0045 DATED AUGUST 21, 1970. SUBSEQUENT TO THE REJECTION OF Z-D PRODUCTS' LOW BID AND THAT OF FOREST SCIENTIFIC, INC., ON THE BASIS OF NONRESPONSIBILITY, THE CONTRACT WAS AWARDED ON NOVEMBER 19, 1970, TO REMCO HYDRAULICS, INC., AT A COST (ABOUT $32,000) IN EXCESS OF THE BID OF Z-D PRODUCTS.

THE REPORT OF THE ARMY MATERIEL COMMAND ON THE MERITS OF THE PROTEST WAS FURNISHED TO YOU FOR INFORMATION AND COMMENT. BY LETTER OF FEBRUARY 5, 1971, YOU ADVISED THAT THE ADMINISTRATIVE REPORT - DEALING WITH BASES UPON WHICH IT WAS DETERMINED THAT Z-D PRODUCTS WAS A NONRESPONSIBLE BIDDER FOR THE PURPOSE OF THIS PROCUREMENT - DID NOT ANSWER EFFECTIVELY THE ALLEGATION THAT Z-D PRODUCTS WAS, AND STILL IS, A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THE END ITEMS ADVERTISED. ON THE RECORD BEFORE US, WE FIND NO BASIS TO DISAGREE WITH THE DETERMINATION MADE AS TO Z-D PRODUCTS' NONRESPONSIBILITY. YOUR COMMENTS ON THE ADMINISTRATIVE REPORT DO NOT OVERCOME THE ADVERSE FINDINGS UPON WHICH THE DETERMINATION WAS BASED. THE PREAWARD SURVEY REPORT RECOMMENDED "NO AWARD" TO Z-D PRODUCTS BECAUSE IT WAS DEFICIENT IN PRODUCTION CAPABILITY, QUALITY ASSURANCE, PAST PERFORMANCE RECORD AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. THESE ADVERSE FINDINGS, WHILE DISPUTED, HAVE NOT BEEN REFUTED BY EVIDENCE TO THE CONTRARY. IN THIS RESPECT, WE DO NOT FEEL THAT IT IS NECESSARY, FOR THE PURPOSES OF THIS DECISION, TO DETAIL AND SUPPORT THESE ADVERSE FINDINGS. SUFFICE IT TO SAY THAT THE ENTIRE RECORD AMPLY SUPPORTS THE ADMINISTRATIVE POSITION THAT Z-D PRODUCTS WAS NOT ENTITLED TO AN AWARD BECAUSE IT WAS DETERMINED TO BE A NONRESPONSIBLE BIDDER.

PARAGRAPH 1-904.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PRECLUDES AN AWARD 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 THOSE SET OUT AT ASPR 1-903.1(II) IS THAT A PROSPECTIVE CONTRACTOR TO QUALIFY AS RESPONSIBLE MUST "BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE." ANOTHER REQUIREMENT SET OUT AT ASPR 1- 903.1(III) IS THAT A PROSPECTIVE CONTRACTOR MUST "HAVE A SATISFACTORY RECORD OF PERFORMANCE (CONTRACTORS WHO ARE SERIOUSLY DEFICIENT IN CURRENT CONTRACT PERFORMANCE, WHEN THE NUMBER OF CONTRACTS AND THE EXTENT OF DEFICIENCY OF EACH ARE CONSIDERED, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR CIRCUMSTANCES PROPERLY BEYOND THE CONTROL OF THE CONTRACTOR, BE PRESUMED TO BE UNABLE TO MEET THIS REQUIREMENT)."

IN VIEW OF THE RECORD, PART OF WHICH WAS MADE AVAILABLE TO YOU, AN AFFIRMATIVE DETERMINATION COULD NOT BE MADE UNDER ASPR 1-904.1 THAT Z-D PRODUCTS WAS A RESPONSIBLE BIDDER AND ITS BID WAS THEREFORE REJECTED.

WE FIND NO EVIDENCE THAT THE PREAWARD SURVEY WAS IRREGULAR, INACCURATE, OR UNFAIR AND, ON THE BASIS OF THE PRESENT RECORD, WE MUST CONCLUDE THAT THE DETERMINATION OF LACK OF RESPONSIBILITY IS NOT SUBJECT TO LEGAL OBJECTION. 43 COMP. GEN. 228 (1963); B-165386, NOVEMBER 26, 1968; AND B- 170664, OCTOBER 29, 1970.

ACCORDINGLY, YOUR PROTEST IS DENIED.