B-175334, MAY 3, 1972

B-175334: May 3, 1972

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A CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY WILL NOT BE QUESTIONED UNLESS THERE EXISTS CONVINCING EVIDENCE THAT HIS FINDING WAS MADE IN AN ARBITRARY OR CAPRICIOUS MANNER. 45 COMP. THERE EXISTS NO BASIS FOR OBJECTION TO THE AGENCY'S DETERMINATION THAT SURVIVAL WAS NOT A RESPONSIBLE BIDDER. TO SURVIVAL EQUIPMENT COMPANY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 7. THE KIT IS TO BE USED BY AIR CREW MEMBERS IN THE EVENT OF A FORCED LANDING IN ISOLATED AREAS. SOME OF THE ITEMS IN THE KIT ARE TO BE SUPPLIED BY THE CONTRACTOR AND OTHERS ARE TO BE SUPPLIED BY THE GOVERNMENT TO THE CONTRACTOR FOR INSERTION INTO THE KIT. FOUR PROPOSALS WERE RECEIVED. IT WAS REQUESTED ON JANUARY 5. YOUR REPRESENTATIVE WAS REQUESTED TO SUBMIT A LETTER CLARIFYING THE STATEMENTS MADE BY HIM AT THE TIME THE SAMPLE WAS DELIVERED.

B-175334, MAY 3, 1972

BID PROTEST - NONRESPONSIBILITY - CERTIFICATE OF URGENCY DECISION DENYING THE PROTEST OF SURVIVAL EQUIPMENT COMPANY AGAINST AWARD OF A CONTRACT TO FRAASS SURGICAL MANUFACTURING COMPANY, UNDER AN RFP ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA., FOR THE FURNISHING OF SURVIVAL KITS. A CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY WILL NOT BE QUESTIONED UNLESS THERE EXISTS CONVINCING EVIDENCE THAT HIS FINDING WAS MADE IN AN ARBITRARY OR CAPRICIOUS MANNER. 45 COMP. GEN. 4 (1965). VIEW OF THE URGENCY OF THE PROCUREMENT AND THE FACT THAT PROTESTANT'S PREAWARD SAMPLE FAILED TO COMPLY WITH THE SPECIFICATIONS, THERE EXISTS NO BASIS FOR OBJECTION TO THE AGENCY'S DETERMINATION THAT SURVIVAL WAS NOT A RESPONSIBLE BIDDER. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO SURVIVAL EQUIPMENT COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1972, AND PREVIOUS CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR PROPOSAL UNDER REQUEST FOR PROPOSALS (RFP) NO. DSA120-72-R-1299, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA.

THE RFP, AS AMENDED, REQUESTED PROPOSALS FOR FURNISHING 12,960 INDIVIDUAL SURVIVAL KITS, EACH CONSISTING OF FIRST AID ITEMS, TOILET ARTICLES, SOUP AND GRAVY BASE, CHOCOLATE RATION BARS, NOTIONS, ALUMINUM FOIL AND A FLEXIBLE SAW. THE KIT IS TO BE USED BY AIR CREW MEMBERS IN THE EVENT OF A FORCED LANDING IN ISOLATED AREAS. SOME OF THE ITEMS IN THE KIT ARE TO BE SUPPLIED BY THE CONTRACTOR AND OTHERS ARE TO BE SUPPLIED BY THE GOVERNMENT TO THE CONTRACTOR FOR INSERTION INTO THE KIT. THE SOLICITATION CALLED FOR DELIVERY OF 6,624 KITS IN FEBRUARY 1972, AND 6,336 KITS IN JUNE 1972.

AS OF THE CLOSING DATE FOR RECEIPT OF PROPOSALS, DECEMBER 21, 1971, FOUR PROPOSALS WERE RECEIVED. YOUR FIRM SUBMITTED THE LOWEST PRICE OF $1.69 PER KIT. THE THREE OTHER PROPOSALS OFFERED PRICES RANGING FROM $2.26 TO $3.13 PER KIT.

SINCE YOUR COMPANY HAD NEVER FURNISHED THE GOVERNMENT THE SUBJECT SURVIVAL KIT, IT WAS REQUESTED ON JANUARY 5, 1972, TO SUBMIT A PREAWARD SAMPLE OF THE KIT IT PROPOSED TO FURNISH. ALSO, ON THE SAME DATE THE CONTRACTING OFFICE REQUESTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), TO CONDUCT A PREAWARD SURVEY OF YOUR PLANT AND FACILITIES. ON JANUARY 17, 1972, A REPRESENTATIVE OF YOUR FIRM HAND- CARRIED A SAMPLE OF A SURVIVAL KIT TO DPSC AND AT THAT TIME THE REPRESENTATIVE INFORMED DPSC PERSONNEL THAT THE SAMPLE DID NOT STRICTLY REPRESENT THE ITEM WHICH YOU WOULD SUPPLY IF AWARDED THE CONTRACT. YOUR REPRESENTATIVE WAS REQUESTED TO SUBMIT A LETTER CLARIFYING THE STATEMENTS MADE BY HIM AT THE TIME THE SAMPLE WAS DELIVERED, AND IN PARTICULAR INDICATING WHAT SIZE ENVELOPE YOUR FIRM WOULD SUPPLY FOR THE SOUP AND GRAVY BASE. THE ENVELOPE FURNISHED WITH YOUR SAMPLE CONTAINED 5.4 GRAMS RATHER THAN 7 GRAMS AS REQUIRED BY THE SPECIFICATIONS. BY LETTER DATED JANUARY 18, 1972, YOUR FIRM ADVISED THE CONTRACTING OFFICE AS FOLLOWS: "THE SOUP AND GRAVY ENVELOPE SUBMITTED ARE COMMERCIAL SUBSTITUTIONS. HAVE NOT BEEN ABLE TO LOCATE A SOURCE FOR THE ITEM STIPULATED AND THEREFORE OUR OFFER IS BASED UPON COMMERCIALLY AVAILABLE ITEMS AS SUBMITTED." THE LETTER WAS REFERRED TO THE DIVISION OF TECHNICAL OPERATIONS, TECHNICAL SERVICES BRANCH, WHICH SUBSEQUENTLY DISAPPROVED A DEVIATION. FURTHER, THE PREAWARD SAMPLE WAS SUBMITTED TO THE DIVISION OF TECHNICAL OPERATIONS, QUALITY ASSURANCE BRANCH, FOR EVALUATION ON JANUARY 18, 1972. THE QUALITY ASSURANCE BRANCH RECOMMENDED TO THE CONTRACTING OFFICER ON FEBRUARY 15, 1972, THAT NO AWARD BE MADE TO YOUR COMPANY BECAUSE OF A NUMBER OF DEVIATIONS IN THE PREAWARD SAMPLE, OF WHICH THE SOUP AND GRAVY ENVELOPE WAS ONLY ONE, AND AN UNFAVORABLE PREAWARD SURVEY.

PRIOR TO PROCEEDING WITH ANY FURTHER ACTION ON THE PROCUREMENT, THE CONTRACTING OFFICER CONTACTED THE SUPPLY OPERATIONS DIVISION TO ASCERTAIN THE SUPPLY STATUS ON THE SURVIVAL KITS. SINCE THERE WAS A SERIOUS BACKORDER STATUS ON THIS ITEM, THE CONTRACTING OFFICER DETERMINED THAT NEGOTIATIONS SHOULD BE CONTINUED ESTABLISHING NEW DELIVERY SCHEDULES OF 6,624 KITS FOR APRIL 20, 1972, AND 6,335 KITS FOR JUNE 30, 1972. THE EFFECT OF THE REVISION OF THE DELIVERY SCHEDULE WAS TO LESSEN THE NUMBER OF DAYS BETWEEN THE FIRST AND LAST DELIVERIES.

ON FEBRUARY 17, 1972, NEGOTIATIONS WERE CONDUCTED WITH ALL FOUR ORIGINAL OFFERORS, INCLUDING YOUR FIRM AND EACH OFFEROR WAS REQUESTED TO SUBMIT BY FEBRUARY 18, 1972, ITS BEST AND FINAL OFFER BASED ON THE NEW DELIVERY SCHEDULE. OF THE FOUR ORIGINAL OFFERORS, ONE OFFEROR REFUSED TO EXTEND THE PROPOSAL ACCEPTANCE PERIOD AND TWO OFFERORS INDICATED THAT THEIR PRICES AND TERMS WERE UNCHANGED. YOUR FIRM INCREASED YOUR ORIGINAL OFFER TO $2.14 PER KIT AND ALSO OFFERED AN ALTERNATE PRICE OF $1.69 PER KIT BASED ON A LATER STARTING DELIVERY DATE.

ALTHOUGH YOUR OFFER REMAINED THE LOWEST RECEIVED, THE CONTRACTING OFFICER CONSIDERED YOUR RESPONSIBILITY TO BE IN DOUBT IN VIEW OF THE NEGATIVE PREAWARD SURVEY AND SAMPLE EVALUATION. IN VIEW OF THE URGENT NEED FOR THE SURVIVAL KITS (THE PRIORITY DESIGNATION HAD BEEN CHANGED FROM 06 TO 03), AND THE TIME FOR PROCESSING A SMALL BUSINESS ADMINISTRATION (SBA) CERTIFICATE OF COMPETENCY, THE CONTRACTING OFFICER DETERMINED THAT IT WAS IMPRACTICAL TO REFER THE MATTER TO THE SBA. ACCORDINGLY, AS PROVIDED BY ASPR 1-705.4(C)(IV) A CERTIFICATE OF URGENCY WAS EXECUTED AND ON FEBRUARY 25, 1972, AWARD WAS MADE TO FRAASS SURGICAL MFG. CO., INC., THE NEXT LOW OFFEROR AND PRIOR SUPPLIER OF THE KITS.

IN YOUR LETTER DATED APRIL 7, 1972, YOU STATE THAT THE CONTRACTING OFFICER'S PRINCIPAL REASONS FOR REJECTING YOUR BID CENTERED AROUND YOUR ABILITY TO OBTAIN THE POLYETHYLENE CONTAINERS AND CHOCOLATE BARS TIMELY AND THAT SUCH INFORMATION COULD EASILY HAVE BEEN VERIFIED OR ASCERTAINED. HOWEVER, THE CONTRACTING OFFICER WOULD HAVE STILL BEEN FACED WITH THE NEGATIVE REPORT RECEIVED ON THE PREAWARD SAMPLE WHICH WAS FOUND TO BE DEFICIENT IN SEVERAL RESPECTS.

PARAGRAPH 1-902 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT THE CONTRACTING OFFICER SHALL MAKE A DETERMINATION OF NONRESPONSIBILITY IF INFORMATION AVAILABLE TO HIM DOES NOT CLEARLY INDICATE THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE. IN VIEW OF THE FACT THAT THE PREAWARD SAMPLE FAILED TO COMPLY WITH THE SPECIFICATIONS, IT WOULD APPEAR THAT YOU DID NOT DEMONSTRATE YOUR RESPONSIBILITY NOR DID THE RECORD INDICATE THAT YOU WERE A RESPONSIBLE BIDDER. IT WAS IN OBSERVANCE OF THESE REQUIREMENTS OF ASPR 1-902 THAT THE CONTRACTING OFFICER REJECTED YOUR LOW OFFER.

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 ARE SATISFIED FROM THE RECORD THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS BASED ON SUBSTANTIAL GROUNDS. IN THE CIRCUMSTANCES, WE FIND NO BASIS FOR OBJECTION TO THE ACTION TAKEN BY THE CONTRACTING OFFICER REJECTING YOUR LOW OFFER.

ACCORDINGLY, THE PROTEST IS DENIED.