B-173917, NOV 19, 1971

B-173917: Nov 19, 1971

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ITS DETERMINATION THAT A BIDDER IS CAPABLE OF MEETING THAT SCHEDULE. WILL NOT BE UPSET BY THE COMP. AS THE BASIS OF ITS PROTEST IS THE UNSUPPORTED CONTENTION THAT THE DELIVERY SCHEDULE IS UNREALISTIC AND THAT ONLY IT CAN MEET THAT SCHEDULE BECAUSE OF PAST PRODUCTION. IT IS YOUR CONTENTION THAT NO OTHER FIRM CAN MEET THE REQUIRED DELIVERY SCHEDULE. THAT YOUR FIRM ALONE IS IN A POSITION TO MEET THE SCHEDULE BECAUSE IT HAS MANUFACTURED THE MATERIAL BEFORE AND HAS THE GREATEST START -UP ADVANTAGE. YOU ALLEGE THAT THE 90 DAYS ALLOWED FOR DELIVERY OF FIRST ARTICLES AND THE ADDITIONAL 60 DAYS PERMITTED FOR GOVERNMENT TESTING WOULD MEAN THAT A CONTRACTOR WOULD HAVE TO START WORK ON THE PRODUCTION LOT ALMOST SIMULTANEOUSLY WITH THE FIRST ARTICLES IN ORDER TO BE ABLE TO BEGIN DELIVERY OF THE PRODUCTION LOT WITHIN THE REQUIRED PERIOD OF SIX MONTHS AFTER AWARD.

B-173917, NOV 19, 1971

BID PROTEST - DETERMINATION OF DELIVERY SCHEDULE DECISION DENYING PROTEST OF ARTISAN ELECTRONICS CORPORATION AGAINST AWARD OF CONTRACT TO FOURDEE, INC. UNDER AN IFB ISSUED BY THE NAVAL AIR SYSTEMS COMMAND FOR ELECTRONIC FIRING SWITCHES. ABSENT A SHOWING THAT THE PROCURING AGENCY HAS ACTED FRAUDULENTLY OR ARBITRARILY, THE DELIVERY SCHEDULE ESTABLISHED BY AN AGENCY, AND ITS DETERMINATION THAT A BIDDER IS CAPABLE OF MEETING THAT SCHEDULE, WILL NOT BE UPSET BY THE COMP. GEN. PROTESTANT HERE HAS FAILED TO MEET THIS BURDEN OF PROOF, AS THE BASIS OF ITS PROTEST IS THE UNSUPPORTED CONTENTION THAT THE DELIVERY SCHEDULE IS UNREALISTIC AND THAT ONLY IT CAN MEET THAT SCHEDULE BECAUSE OF PAST PRODUCTION.

TO ARTISAN ELECTRONICS CORPORATION:

WE REFER TO YOUR LETTER OF AUGUST 20, 1971, WHICH PROTESTS AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER IFB N00019-71-B-0162, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND.

IT IS YOUR CONTENTION THAT NO OTHER FIRM CAN MEET THE REQUIRED DELIVERY SCHEDULE, AND THAT YOUR FIRM ALONE IS IN A POSITION TO MEET THE SCHEDULE BECAUSE IT HAS MANUFACTURED THE MATERIAL BEFORE AND HAS THE GREATEST START -UP ADVANTAGE. YOU ALLEGE THAT THE 90 DAYS ALLOWED FOR DELIVERY OF FIRST ARTICLES AND THE ADDITIONAL 60 DAYS PERMITTED FOR GOVERNMENT TESTING WOULD MEAN THAT A CONTRACTOR WOULD HAVE TO START WORK ON THE PRODUCTION LOT ALMOST SIMULTANEOUSLY WITH THE FIRST ARTICLES IN ORDER TO BE ABLE TO BEGIN DELIVERY OF THE PRODUCTION LOT WITHIN THE REQUIRED PERIOD OF SIX MONTHS AFTER AWARD. YOU FURTHER STATE THAT THIS BEGINNING OF WORK ON THE PRODUCTION LOT WOULD BE AT THE SOLE RISK OF THE CONTRACTOR UNDER PROVISIONS OF THE FIRST ARTICLE CLAUSE. CONSEQUENTLY, IT IS YOUR OPINION THAT THE DELIVERY SCHEDULE IS NOT REALISTIC FOR ANY FIRM BUT ARTISAN, AND THAT AWARD SHOULD THEREFORE BE MADE TO YOUR FIRM OR THE INVITATION SHOULD BE CANCELLED.

THE NAVAL AIR SYSTEMS COMMAND REPORTS THAT THE INVITATION WAS ISSUED ON JUNE 7, 1971, FOR THE MANUFACTURE AND SUPPLY OF MK73 MOD 2 ELECTRONIC FIRING SWITCHES, WITH RELATED DATA, FOR THE SPARROW MISSILE. THIRTEEN BIDS WERE RECEIVED AND OPENED ON JULY 21, 1971. THE LOW BID WAS SUBMITTED BY FOURDEE, INC., IN THE AMOUNT OF $176,013.10. ARTISAN, THE CURRENT PRODUCER, WAS THE SEVENTH LOW BIDDER WITH A BID OF $268,085.

THE NAVY REPORT ACKNOWLEDGES THAT, UNDER THE DELIVERY SCHEDULE SET FORTH IN THE INVITATION, A CONTRACTOR FROM WHOM A FIRST ARTICLE IS REQUIRED MAY FIND IT NECESSARY TO ACQUIRE MATERIALS AND BEGIN WORK ON THE INITIAL PRODUCTION LOT PRIOR TO FIRST ARTICLE APPROVAL IN ORDER TO COMMENCE DELIVERY WITHIN SIX MONTHS AFTER AWARD. HOWEVER, THIS RISK IS SPELLED OUT IN THE INVITATION; THAT ALL BIDDERS KNEW OR SHOULD HAVE KNOWN OF SUCH RISK; AND THAT THIRTEEN BIDS WERE RECEIVED NOTWITHSTANDING THIS RISK.

A PRE-AWARD SURVEY WAS CONDUCTED AT FOURDEE, INC., AND THE SURVEY REPORT STATES THAT FOURDEE CAN MEET BOTH THE 90 DAY FIRST ARTICLE DELIVERY AND THE SIX MONTH PRODUCTION UNIT DELIVERY SCHEDULE. AFTER RECEIPT OF THE SURVEY REPORT, THE CONTRACTING OFFICER MADE A DETERMINATION PURSUANT TO ASPR 1-904 THAT FOURDEE IS A RESPONSIBLE BIDDER.

YOUR ASSERTION THAT THE DELIVERY SCHEDULE IS NOT REALISTIC FOR ANYONE BUT ARTISAN RAISES TWO SEPARATE QUESTIONS REGARDING THE NAVY'S ACTIONS IN THIS PROCUREMENT. FIRST, WHETHER THE NAVY'S NEEDS WERE PROPERLY STATED WITH RESPECT TO DELIVERY AND, SECOND, WHETHER THE LOW BIDDER, FOURDEE, CAN MEET THE DELIVERY SCHEDULE AS STATED.

WITH REGARD TO THE FIRST QUESTION, WE HAVE CONSISTENTLY EXPRESSED THE VIEW THAT IT IS A MATTER PRIMARILY WITHIN THE ADMINISTRATIVE DISCRETION OF THE CONTRACTING AGENCY TO DETERMINE ITS NEEDS. SUCH DETERMINATIONS WILL NOT BE DISTURBED BY OUR OFFICE IN THE ABSENCE OF A CLEAR SHOWING BY THE PARTY ATTEMPTING TO OVERTURN THE AGENCY DETERMINATION THAT SUCH DETERMINATION IS FRAUDULENT OR ARBITRARY. 49 COMP. GEN. 857, 862 (1970); 38 ID. 71, 75 (1958). REGARDING THE SECOND QUESTION, WE HAVE LIKEWISE HELD THAT WHETHER A BIDDER IS CAPABLE OF PRODUCING AND DELIVERING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A MATTER TO BE DECIDED BY THE CONTRACTING AGENCY, AND WE HAVE REQUIRED THE SAME STANDARD OF PROOF FROM ANYONE SEEKING TO QUESTION THE EXERCISE OF THAT DISCRETION. 46 COMP. GEN. 371 (1966).

IN THE PRESENT CASE, THE NAVY DETERMINED THAT ITS NEEDS REQUIRE A PARTICULAR DELIVERY SCHEDULE AND THAT THE LOW BIDDER IS RESPONSIBLE AND CAPABLE OF MEETING THAT SCHEDULE. IN OPPOSITION THERETO, WE HAVE ONLY YOUR UNSUPPORTED BELIEF THAT THE DELIVERY SCHEDULE IS UNREALISTIC FOR ANY COMPANY BUT ARTISAN, WHICH COMPLETELY FAILS TO SUSTAIN THE BURDEN OF PROOF REQUIRED OF ONE WHO WOULD CHALLENGE THE EXERCISE OF ADMINISTRATIVE DISCRETION. WE MUST CONCLUDE, THEREFORE, THAT YOU HAVE RAISED NO LEGAL IMPEDIMENT TO AN AWARD TO THE LOW BIDDER IN THIS PROCUREMENT.

ACCORDINGLY, YOUR PROTEST IS DENIED.