B-172814, SEP 9, 1971

B-172814: Sep 9, 1971

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ONE OF THE ELEMENTS TO BE CONSIDERED IN DETERMINING CONTRACT AWARD IS THE ABILITY TO COMPLY WITH THE REQUIRED PERFORMANCE SCHEDULE. WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICER. INC.: REFERENCE IS MADE TO YOUR LETTER DATED JULY 7. TWO PROPOSALS WERE RECEIVED BY THE MARCH 24. PRICE NEGOTIATIONS WERE CONDUCTED WITH BOTH OFFERORS AND IT WAS DETERMINED THAT YOUR FIRM SUBMITTED THE LOWEST OFFER. THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM WAS NOT A RESPONSIBLE OFFEROR FOR PURPOSES OF THIS PROCUREMENT. THE SHELTERS ARE URGENTLY REQUIRED FOR THE FIELDING OF AACOMS EQUIPMENT AND IS GFP TO NUMEROUS CONTRACTORS. DELIVERY AS SET FORTH IN THE REQUEST FOR PROPOSALS IS MANDATORY.

B-172814, SEP 9, 1971

BID PROTEST - BIDDER RESPONSIBILITY - PERFORMANCE SCHEDULE DECISION DENYING PROTEST BY LOW BIDDER AGAINST AWARD OF A CONTRACT TO CRAIG SYSTEMS CORPORATION, SECOND LOW BIDDER, UNDER AN RFP ISSUED BY THE ARMY ELECTRONICS COMMAND, PHILADELPHIA, PA., FOR SHELTER, ELECTRICAL EQUIPMENT. ONE OF THE ELEMENTS TO BE CONSIDERED IN DETERMINING CONTRACT AWARD IS THE ABILITY TO COMPLY WITH THE REQUIRED PERFORMANCE SCHEDULE, ASPR 1 903.1(II), AND THE COMP. GEN. WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICER, WHO RELIED ON A PREAWARD SURVEY REPORT RECOMMENDING "NO AWARD" DUE TO DEFICIENCIES IN THE AREAS OF TECHNICAL CAPABILITY, PLANT FACILITIES AND EQUIPMENT AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE.

TO GICHNER MOBILE SYSTEMS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 7, 1971, AND PRIOR CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR OFFER UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAB05-71-R-0280, ISSUED ON MARCH 4, 1971, BY THE U.S. ARMY ELECTRONICS COMMAND, PHILADELPHIA OFFICES, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT RFP CALLED FOR SHELTER, ELECTRICAL EQUIPMENT, S-250 ( )/G IN RANGE QUANTITIES OF 160-319, 320-639, AND 640-960. TWO PROPOSALS WERE RECEIVED BY THE MARCH 24, 1971, CLOSING DATE. PRICE NEGOTIATIONS WERE CONDUCTED WITH BOTH OFFERORS AND IT WAS DETERMINED THAT YOUR FIRM SUBMITTED THE LOWEST OFFER. THEREAFTER, THE CONTRACTING OFFICER REQUESTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), IN READING, PENNSYLVANIA, TO PERFORM A PREAWARD SURVEY OF YOUR FIRM. THE PREAWARD SURVEY REPORT RECOMMENDED THAT NO AWARD BE MADE TO YOUR FIRM ON THE BASIS OF NEGATIVE FINDINGS IN THE AREAS OF TECHNICAL CAPABILITY, PRODUCTION CAPABILITY, PLANT FACILITIES AND EQUIPMENT, AND ABILITY TO MEET THE REQUIRED SCHEDULE. ON APRIL 28, 1971, THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM WAS NOT A RESPONSIBLE OFFEROR FOR PURPOSES OF THIS PROCUREMENT. THE DETERMINATION PROVIDED IN PART AS FOLLOWS:

"2. THE SHELTERS ARE URGENTLY REQUIRED FOR THE FIELDING OF AACOMS EQUIPMENT AND IS GFP TO NUMEROUS CONTRACTORS. DELIVERY AS SET FORTH IN THE REQUEST FOR PROPOSALS IS MANDATORY. GICHNER UNDER ITS CURRENT CONTRACT IS OBLIGED TO BUILD UP ITS RATE OF PRODUCTION TO 75 PER MONTH STARTING IN JUNE, 1971, AND TO 150 PER MONTH STARTING IN JANUARY, 1972, WHICH IN MY JUDGMENT WILL TAX HIS FACILITIES TO THE FULLEST EXTENT. NOTWITHSTANDING THE CONTRACTOR'S REPRESENTATIONS MADE DURING THE PRE AWARD SURVEY, I DO NOT BELIEVE THAT HE CAN PRODUCE THE ADDITIONAL SHELTERS REQUIRED WITHIN THE TIME FRAME STIPULATED IN ADDITION TO HIS PRESENT DELIVERY REQUIREMENTS FOR THIS ITEM UNDER THE EXISTING CONTRACT.

"3. IN ADDITION, BASED UPON MY OWN KNOWLEDGE AND OBSERVATION OF THE CONTRACTOR'S PERFORMANCE TO DATE, THERE IS SERIOUS DOUBT IN MY MIND THAT HE WILL OVERCOME THE TECHNICAL PROBLEMS WHICH WERE RECORDED AS A RESULT OF CONFIRMATORY TESTING IN SUFFICIENT TIME TO ESTABLISH AN ORDERLY PRODUCTION SCHEDULE FOR THE ADDITIONAL QUANTITIES CONTEMPLATED BY THE SUBJECT RFP."

ACCORDINGLY, AWARD WAS MADE TO CRAIG SYSTEMS CORPORATION ON APRIL 28, 1971, AND THE CONTRACTING OFFICER ADVISED YOU BY LETTER THAT YOUR OFFER WAS REJECTED BECAUSE YOUR FIRM DID NOT HAVE THE NECESSARY PRODUCTION CAPACITY TO MEET THE DELIVERY REQUIREMENTS UNDER THE SUBJECT RFP IN ADDITION TO EXISTING CONTRACT OBLIGATIONS.

THE REPORT OF THE CONTRACTING OFFICER ON THE MERITS OF THE PROTEST WAS FURNISHED TO YOU FOR INFORMATION AND COMMENT. BY LETTER OF JULY 7, 1971, YOU QUESTIONED THE CONTRACTING OFFICER'S REPORT WHICH DEALT WITH THE BASES UPON WHICH IT WAS DETERMINED THAT YOUR FIRM WAS A NONRESPONSIBLE OFFEROR FOR THE PURPOSE OF THIS PROCUREMENT. ON THE RECORD BEFORE US, WE FIND NO BASIS TO DISAGREE WITH THE DETERMINATION MADE AS TO YOUR FIRM'S NONRESPONSIBILITY. YOUR COMMENTS ON THE CONTRACTING OFFICER'S REPORT DO NOT OVERCOME THE ADVERSE FINDINGS UPON WHICH THE DETERMINATION WAS BASED. THE PREAWARD SURVEY REPORT RECOMMENDED "NO AWARD" TO GICHNER BECAUSE IT WAS DEFICIENT IN THE AREAS OF TECHNICAL CAPABILITY, PRODUCTION CAPABILITY, PLANT FACILITIES, AND EQUIPMENT, AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. THESE ADVERSE FINDINGS, WHILE DISPUTED, HAVE NOT BEEN REFUTED BY EVIDENCE TO THE CONTRARY.

THE PREAWARD SURVEY PERFORMED BY DCASD WAS ACCOMPLISHED BY A TEAM COMPRISED OF TECHNICAL REPRESENTATIVES IN THE QUALITY ASSURANCE AND PRODUCTION AREAS AND FINANCIAL SPECIALISTS. THE RESULTS OF THEIR INDIVIDUAL INVESTIGATIONS WERE COMPILED AND FORWARDED TO A PREAWARD MONITOR WITH RECOMMENDATIONS IN THEIR RESPECTIVE AREAS OF ANALYSIS. THE PRE-AWARD FINDINGS AND RECOMMENDATIONS WERE THEN SUBJECTED TO A SUPERVISORY REVIEW AND ULTIMATELY WERE EXAMINED BY A PREAWARD SURVEY BOARD. WE FIND NO EVIDENCE THAT THE PREAWARD SURVEY WAS IRREGULAR, INACCURATE, OR UNFAIR. ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE CONTRACTING OFFICER'S RELIANCE ON THE RECOMMENDATIONS OF THOSE CONDUCTING THE PREAWARD SURVEY.

PARAGRAPH 1-902 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES THAT CONTRACTS BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. ASPR 1-904.1 PRECLUDES AN AWARD 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 ELEMENTS TO BE CONSIDERED IN DETERMINING CONTRACT AWARD IS THE ABILITY TO COMPLY WITH THE REQUIRED PERFORMANCE SCHEDULE. SEE ASPR 1- 903.1(II).

WITH REGARD TO THE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICER UNLESS IT IS SHOWN BY CONVINCING EVIDENCE THAT THE FINDING OF NONRESPONSIBILITY WAS ARBITRARY, CAPRICIOUS OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 45 COMP. GEN. 4 (1965); 43 ID. 257 (1963). WE HAVE CAREFULLY REVIEWED AND CONSIDERED THE INFORMATION RELIED UPON BY THE CONTRACTING OFFICER IN MAKING THE DETERMINATION THAT YOUR FIRM WAS NONRESPONSIBLE AND WE FIND NO BASIS UPON WHICH OUR OFFICE WOULD BE JUSTIFIED IN CONCLUDING THAT THERE WAS AN ABUSE OF ADMINISTRATIVE DISCRETION.

CONCERNING YOUR CONTENTION THAT CRAIG DID NOT HAVE A VENDOR FOR RFI FILTERS AT THE TIME OF AWARD OR THAT IT HAS PURCHASED FROM A SOURCE OTHER THAN THOSE SPECIFIED IN THE SPECIFICATION DRAWINGS, WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF THE ARMY THAT THE DRAWINGS IN QUESTION SUGGESTED SHIELD-AIR AS A SOURCE FOR THE RFI FILTERS AND THAT THE CONTRACTING OFFICER HAS A COPY OF A PURCHASE ORDER FROM CRAIG TO SHIELD- AIR ORDERING THESE FILTERS.

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