B-174339, FEB 8, 1972

B-174339: Feb 8, 1972

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PAST DELINQUENCY IN CONTRACT PERFORMANCE IS A SUFFICIENT BASIS FOR A DETERMINATION OF NONRESPONSIBILITY. 49 COMP. SINCE THE CONTRACTING OFFICER'S DETERMINATION IS SUPPORTED BY THE RECORD. IT IS NOT SUBJECT TO LEGAL OBJECTION. A RECOMMENDATION OF "NO AWARD" WAS MADE BECAUSE INTERNATIONAL HARVESTER WAS CONSIDERED NONRESPONSIBLE ON THE BASIS OF A PERFORMANCE RECORD WHICH WAS 60-PERCENT DELINQUENT DURING THE PRECEDING YEAR. THE COMPANY HAD ALSO REFUSED TO MAKE FIRM COMMITMENTS FOR DELIVERY DATES ON DELINQUENT CONTRACTS AND TO GIVE EVIDENCE THAT EFFORTS WERE BEING MADE TO ASSURE TIMELY PERFORMANCE OF GOVERNMENT CONTRACTS. IT WAS DELINQUENT ON FOURTEEN FOR PERIODS OF ONE TO THREE MONTHS. THE CONTRACTING OFFICER ISSUED A DETERMINATION THAT THE COMPANY WAS NOT RESPONSIBLE AND AWARDED THE CONTRACT TO THE NEXT LOW BIDDER.

B-174339, FEB 8, 1972

BID PROTEST - NONRESPONSIBILITY - PAST PERFORMANCE DECISION DENYING THE PROTEST OF INTERNATIONAL HARVESTER COMPANY AGAINST AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER AN IFB ISSUED BY THE ARMY TANK -AUTOMOTIVE COMMAND, PROCUREMENT AND PRODUCTION DIRECTORATE, WARREN, MICH., FOR GASOLINE-ENGINE CARGO TRUCKS. PAST DELINQUENCY IN CONTRACT PERFORMANCE IS A SUFFICIENT BASIS FOR A DETERMINATION OF NONRESPONSIBILITY. 49 COMP. GEN. 139 (1969). SINCE THE CONTRACTING OFFICER'S DETERMINATION IS SUPPORTED BY THE RECORD, IT IS NOT SUBJECT TO LEGAL OBJECTION.

TO INTERNATIONAL HARVESTER COMPANY:

WE REFER TO YOUR LETTER OF OCTOBER 15, 1971, PROTESTING AGAINST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DAAE07-72-B-0010, ISSUED JULY 23, 1971, BY THE U.S. ARMY TANK-AUTOMOTIVE COMMAND (TACOM), PROCUREMENT AND PRODUCTION DIRECTORATE, WARREN, MICHIGAN, FOR FIFTY THREE GASOLINE-ENGINE CARGO TRUCKS.

INTERNATIONAL HARVESTER COMPANY SUBMITTED A BID PRICE OF $269,036.53, THE LOWER OF TWO BIDS OPENED AUGUST 23, 1971. HOWEVER, IN THE PRE AWARD SURVEY OF SEPTEMBER 9, 1971, A RECOMMENDATION OF "NO AWARD" WAS MADE BECAUSE INTERNATIONAL HARVESTER WAS CONSIDERED NONRESPONSIBLE ON THE BASIS OF A PERFORMANCE RECORD WHICH WAS 60-PERCENT DELINQUENT DURING THE PRECEDING YEAR. THE COMPANY HAD ALSO REFUSED TO MAKE FIRM COMMITMENTS FOR DELIVERY DATES ON DELINQUENT CONTRACTS AND TO GIVE EVIDENCE THAT EFFORTS WERE BEING MADE TO ASSURE TIMELY PERFORMANCE OF GOVERNMENT CONTRACTS. TACOM STATED FURTHER THAT, ON AUGUST 31, 1971, OF FORTY-SEVEN UNCOMPLETED CONTRACTS BEING PERFORMED BY THE COMPANY, IT WAS DELINQUENT ON FOURTEEN FOR PERIODS OF ONE TO THREE MONTHS. FURTHERMORE, DURING THE TWO-YEAR PERIOD ENDING JUNE 30, 1971, IT HAD BEEN DELINQUENT IN FINAL SHIPMENTS FOR EIGHTEEN OF TWENTY-EIGHT COMPLETED CONTRACTS, A DELINQUENCY RATE OF 64 PERCENT. ON THE BASIS OF THE NEGATIVE PRE-AWARD SURVEY, THE CONTRACTING OFFICER ISSUED A DETERMINATION THAT THE COMPANY WAS NOT RESPONSIBLE AND AWARDED THE CONTRACT TO THE NEXT LOW BIDDER.

OUR OFFICE HAS RULED FREQUENTLY THAT THE QUESTION OF WHETHER A PROSPECTIVE CONTRACTOR IS RESPONSIBLE SHOULD BE DETERMINED PRIMARILY BY THE CONTRACTING AGENCY AND THAT WE CONSIDER SUCH ADMINISTRATIVE DETERMINATION FINAL ABSENT A SHOWING THAT IT WAS MADE IN BAD FAITH OR WITHOUT REASONABLE BASIS. FURTHER, FREQUENT DELINQUENCY IN CONTRACT PERFORMANCE HAS BEEN CONSIDERED A SUFFICIENT BASIS FOR A DETERMINATION OF NONRESPONSIBILITY. SEE 49 COMP. GEN. 139 (1969) AND B-170664, OCTOBER 29, 1970.

THE CONTRACTING OFFICER'S DETERMINATION OF LACK OF RESPONSIBILITY IS SUPPORTED BY THE RECORD AND WE MUST THEREFORE CONCLUDE THAT IT IS NOT SUBJECT TO LEGAL OBJECTION. ACCORDINGLY, THE PROTEST IS DENIED.

HOWEVER, TACOM HAS INDICATED THAT THE PERFORMANCE OF INTERNATIONAL HARVESTER HAS IMPROVED SINCE THE CONTRACTING OFFICER'S DETERMINATION WAS MADE AND THAT RECENT PRE-AWARD SURVEYS HAVE BEEN FAVORABLE. IN THAT CONNECTION, OUR OFFICE HAS HELD THAT A DETERMINATION OF NONRESPONSIBILITY BY A CONTRACTING OFFICER IS VALID ONLY FOR THE PROCUREMENT ON WHICH IT IS MADE AND THAT IN THE EVENT THE BIDDER IS ELIGIBLE FOR A SUBSEQUENT AWARD ON A PROCUREMENT BY THE SAME AGENCY OR ANY OTHER AGENCY, ITS RESPONSIBILITY WOULD HAVE TO BE DETERMINED ON THE BASIS OF THE RECORD OF PERFORMANCE AT THAT TIME. 43 COMP. GEN. 228 (1963).