B-171646, FEB 9, 1971

B-171646: Feb 9, 1971

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SUCH A DETERMINATION CANNOT BE OVERTHROWN UNLESS IT CAN BE HELD THAT THE DETERMINATION WAS ARBITRARY. CONTRACTING OFFICER'S DETERMINATION THAT WIBES MANUFACTURING COMPANY WAS ABLE AND QUALIFIED TO PERFORM A CONTRACT FOR FURNISHING OUTDOOR ORNAMENTAL LANTERN ASSEMBLIES FOR THE LIBRARY OF CONGRESS IS SUFFICIENT TO OVERCOME THE PROTEST. CAMPIOLI: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5. THE SUBJECT INVITATION WAS ISSUED ON NOVEMBER 24. SIX BIDS WERE RECEIVED AND OPENED ON DECEMBER 15. 380 WAS SUBMITTED BY THE WIBES MANUFACTURING COMPANY. YOU STATE THAT BECAUSE THE WIBES BID WAS CONSIDERABLY BELOW THE SECOND LOW BID OF SPRING CITY FOUNDRY CO. WIBES WAS REQUESTED BY TELEPHONE TO VERIFY THE BID PRICE AND CONFIRMED THAT IT WAS CORRECT.

B-171646, FEB 9, 1971

BID PROTEST - BIDDER RESPONSIBILITY ADVISING THAT WHEN AN OFFICIAL DETERMINES THE RESPONSIBILITY OF A BIDDER, SUCH A DETERMINATION CANNOT BE OVERTHROWN UNLESS IT CAN BE HELD THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS OR FRAUDULENT. THEREFORE, CONTRACTING OFFICER'S DETERMINATION THAT WIBES MANUFACTURING COMPANY WAS ABLE AND QUALIFIED TO PERFORM A CONTRACT FOR FURNISHING OUTDOOR ORNAMENTAL LANTERN ASSEMBLIES FOR THE LIBRARY OF CONGRESS IS SUFFICIENT TO OVERCOME THE PROTEST.

TO MR. CAMPIOLI:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1971, REGARDING A PROPOSED AWARD TO THE LOW BIDDER UNDER AN INVITATION FOR BIDS COVERING JOB NO. 7088.

THE SUBJECT INVITATION WAS ISSUED ON NOVEMBER 24, 1970, SOLICITING BIDS FOR FURNISHING 20 OUTDOOR ORNAMENTAL LANTERN AND LIGHT STANDARD ASSEMBLIES FOR THE GROUNDS OF THE LIBRARY OF CONGRESS. SIX BIDS WERE RECEIVED AND OPENED ON DECEMBER 15, 1970. THE LOWEST BID IN THE AMOUNT OF $59,380 WAS SUBMITTED BY THE WIBES MANUFACTURING COMPANY. THE OTHER FIVE BIDS RANGED FROM $82,000 TO $153,700.

YOU STATE THAT BECAUSE THE WIBES BID WAS CONSIDERABLY BELOW THE SECOND LOW BID OF SPRING CITY FOUNDRY CO. IN THE AMOUNT OF $82,000, WIBES WAS REQUESTED BY TELEPHONE TO VERIFY THE BID PRICE AND CONFIRMED THAT IT WAS CORRECT.

BY LETTERS OF DECEMBER 18 AND 29, 1970, SPRING CITY FOUNDRY CO. PROTESTED AGAINST AWARD TO WIBES ON THE GROUND THAT THE COMPANY WAS NOT QUALIFIED TO PERFORM THE REQUIRED WORK BECAUSE OF INADEQUATE FINANCIAL ABILITY AND PERSONNEL.

YOU STATE THAT MR. STEINMETZ, AN OFFICER OF THE WIBES MANUFACTURING COMPANY, IS KNOWN TO YOUR OFFICE TO HAVE ENGAGED IN THE CASTING OF ORNAMENTAL BRONZE FIXTURES FOR A NUMBER OF DECADES AS STEINMETZ MANUFACTURING COMPANY; THAT MR. STEINMETZ SOLD HIS BUSINESS IN 1964 TO PRESCOLITE CORPORATION WITH THE UNDERSTANDING THAT HE WOULD CONTINUE TO HANDLE THE ORNAMENTAL BRONZE CASTING WORK FOR PRESCOLITE; AND THAT WHEN PRESCOLITE DISCONTINUED ORNAMENTAL BRONZE CASTING WORK, MR. STEINMETZ LEFT PRESCOLITE AND FORMED A FAMILY CORPORATION UNDER THE NAME OF WIBES MANUFACTURING COMPANY TO CONTINUE THE TYPE OF BRONZE CASTING WORK HE HAS ALWAYS ENGAGED IN. YOU ALSO STATE THAT WIBES IN THE PAST HAS COMPLETED SEVERAL CONTRACTS WITH YOUR OFFICE FOR ORNAMENTAL CAST BRONZE FIXTURES IN A VERY SATISFACTORY MANNER; THAT YOUR OFFICE IS SATISFIED THAT WIBES IS WELL QUALIFIED FOR THE WORK; AND THAT YOUR OFFICE HAS BEEN ASSURED THAT WIBES WILL FURNISH THE REQUIRED PERFORMANCE BOND FOR COMPLETION OF THE CONTRACT.

YOU INDICATE THAT BASED UPON THE FOREGOING YOUR OFFICE IS PREPARED TO MAKE AN AWARD TO WIBES. HOWEVER, BECAUSE OF THE PROTEST AGAINST SUCH AN AWARD, YOU HAVE SUBMITTED THE MATTER TO OUR OFFICE.

WITH REGARD TO THE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, THE AUTHORITIES ARE IN AGREEMENT THAT THE OFFICERS IN WHOM THE POWER IS VESTED TO DETERMINE RESPONSIBILITY MUST DETERMINE THE FACTS AND SUCH DETERMINATION CANNOT BE SET ASIDE UNLESS THE ACTION WAS ARBITRARY, CAPRICIOUS, OR FRAUDULENT. DETERMINATION OF THE LOWEST RESPONSIBLE BIDDER IS TO BE MADE BY THE AUTHORIZED OFFICIAL OF THE CONTRACTING AGENCY, WHO IS REQUIRED TO ACT FAIRLY UPON REASONABLE INFORMATION WHICH SUPPORTS THE DETERMINATION MADE. WHEN SUCH OFFICIAL DETERMINES THE RESPONSIBILITY OF A BIDDER, SUCH DETERMINATION CANNOT BE OVERTHROWN BY THE COURTS OR OUR OFFICE UNLESS IT CAN BE HELD THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS, OR FRAUDULENT. SEE MCQUILLIN, MUNICIPAL CORPORATIONS, 3RD ED., VOL. 10, SEC. 29.73, AND THE CASES THEREIN CITED; 47 COMP. GEN. 373, 376 (1968); 38 ID. 131 (1958); 33 ID. 549 (1954); BROWN V CITY OF PHOENIX, 272 P. 2D 358 (1954); MCNICHOLS V CITY AND COUNTY OF DENVER, 274 P. 2D 317 (1954).

THE DETERMINATION TO AWARD THE CONTRACT TO THE WIBES MANUFACTURING COMPANY IS NOT WITHOUT FOUNDATION. THEREFORE, OUR OFFICE HAS NO LEGAL OBJECTION TO THE PROPOSED AWARD.