B-175545, AUG 17, 1972

B-175545: Aug 17, 1972

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UPHELD THE CONTRACTING OFFICER'S RELIANCE ON A LACK OF PLANT SAFETY IN DETERMINING THAT A BIDDER WAS NONRESPONSIBLE. THERE WERE OTHER FACTORS WHICH SUPPORTED HIS DECISION SO THAT WHETHER. A LACK OF PLANT SAFETY IS OF ITSELF SUFFICIENT TO SUPPORT A DETERMINATION OF NONRESPONSIBILITY. IS STILL OPEN TO SUBSTANTIAL QUESTION. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 31. BIDS WERE OPENED ON FEBRUARY 9. INCORPORATED (GSE) WAS THE APPARENT LOW BIDDER. A PREAWARD SURVEY WAS CONDUCTED ON GSE'S PLANT SAFETY AND THE MARCH 8. IT WAS REPORTED THAT YOUR BUILDING WAS NOT EQUIPPED WITH A SPRINKLER SYSTEM. ANOTHER WAS BLOCKED BY EQUIPMENT AND NOT READILY ACCESSIBLE. THE REMAINING TWO WERE NOT MOUNTED AS REQUIRED.

B-175545, AUG 17, 1972

BID PROTEST - BIDDER RESPONSIBILITY - PLANT SAFETY DENIAL OF PROTEST BY GSE DYNAMICS, INC., LOW BIDDER, AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER AN IFB ISSUED BY THE NAVAL AVIONICS FACILITY, INDIANAPOLIS, IND. WHILE GAO HAS, IN THE PAST, UPHELD THE CONTRACTING OFFICER'S RELIANCE ON A LACK OF PLANT SAFETY IN DETERMINING THAT A BIDDER WAS NONRESPONSIBLE, THERE WERE OTHER FACTORS WHICH SUPPORTED HIS DECISION SO THAT WHETHER, AS IN THE PRESENT CASE, A LACK OF PLANT SAFETY IS OF ITSELF SUFFICIENT TO SUPPORT A DETERMINATION OF NONRESPONSIBILITY, IS STILL OPEN TO SUBSTANTIAL QUESTION. HOWEVER, IN VIEW OF THE STAGE OF CONTRACT PERFORMANCE, IT WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT TO DISTURB THE AWARD.

TO GSE DYNAMICS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 31, 1972, PROTESTING AGAINST THE AWARD OF CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) N00163-72-B-0466, ISSUED JANUARY 6, 1972, BY THE NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA, FOR EIGHT CHASSIS ASSEMBLY FRAMES.

BIDS WERE OPENED ON FEBRUARY 9, 1972, AND GSE DYNAMICS, INCORPORATED (GSE) WAS THE APPARENT LOW BIDDER. ON MARCH 1, 1972, A PREAWARD SURVEY WAS CONDUCTED ON GSE'S PLANT SAFETY AND THE MARCH 8, 1972, REPORT BASED ON THIS SURVEY RECOMMENDED NO AWARD DUE TO INADEQUATE PLANT SAFETY. SPECIFICALLY, IT WAS REPORTED THAT YOUR BUILDING WAS NOT EQUIPPED WITH A SPRINKLER SYSTEM; THAT NONE OF THE FIVE FIRE EXTINGUISHERS LOCATED IN THE PLANT HAD BEEN SERVICED SINCE MAY 1970; THAT TWO EXTINGUISHERS SHOWED A PRESSURE OF ZERO, ANOTHER WAS BLOCKED BY EQUIPMENT AND NOT READILY ACCESSIBLE, AND THE REMAINING TWO WERE NOT MOUNTED AS REQUIRED; THAT THE SPRAY COATING ROOM DID NOT CONFORM TO UNITED STATES DEPARTMENT OF LABOR REGULATIONS AND THE LIGHTS AND VENTILATION SYSTEM WERE NOT EXPLOSION PROOF; AND THAT THE COMPRESSED GAS CYLINDERS FOR WELDING WERE NOT SECURED. IT IS ALSO REPORTED THAT YOU HAD BEEN NOTIFIED ABOUT THESE SAFETY DEFICIENCIES ON JANUARY 19, 1972. BECAUSE OF THE SERIOUS NATURE OF THESE DEFICIENCIES AND THEIR ATTENDANT EFFECT ON GSE'S CAPACITY TO PRODUCE AND DELIVER THE CHASSIS ASSEMBLIES, THE CONTRACTING OFFICER DETERMINED ON MARCH 14, 1972, THAT GSE WAS NOT RESPONSIBLE. AWARD OF CONTRACT WAS MADE TO THE NEXT LOW BIDDER ON MARCH 21, 1972, AND YOUR PROTEST TO THIS OFFICE FOLLOWED.

YOU CONTEND THAT THE SAFETY POINTS MENTIONED ABOVE ARE MINOR AND THAT THEY WERE CORRECTED. THE CONTRACTING OFFICER REPORTS THAT THE ABOVE MENTIONED SAFETY DEFICIENCIES ARE SERIOUS AND THAT BECAUSE YOU HAD NOT CORRECTED ANY SAFETY DEFICIENCIES AFTER THE JANUARY 19, 1972, NOTIFICATION, HE DID NOT BELIEVE THAT CORRECTIVE ACTION WOULD BE TAKEN PRIOR TO DATE OF AWARD.

A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY A MATTER WITHIN THE REASONABLE DISCRETION OF THE PROCURING AGENCY. 45 COMP. GEN. 4 (1965); IN MAKING SUCH A DETERMINATION ONE FACTOR THAT MAY BE CONSIDERED IS PLANT SAFETY. B-159917, NOVEMBER 30, 1966; B-171286, FEBRUARY 17, 1971. WHETHER A FIRM IS RESPONSIBLE IS DETERMINED AT THE TIME OF AWARD OF CONTRACT AND SHOULD BE RESOLVED FROM AN ANALYSIS OF THE MOST CURRENT INFORMATION. B-174455, MARCH 22, 1972, 51 COMP. GEN. , (1972).

IN THOSE CASES WHERE THIS OFFICE HAS UPHELD THE CONTRACTING OFFICER'S RELIANCE ON A LACK OF SAFETY IN DETERMINING THAT A BIDDER WAS NONRESPONSIBLE, THERE WERE SEVERAL OTHER VALID FACTORS SUPPORTING HIS DECISION. IN THE PRESENT CASE THE LACK OF SAFETY WITH ITS POSSIBLE EFFECT ON DELIVERY CONSTITUTES THE SOLE BASIS FOR THE CONTRACTING OFFICER'S DETERMINATION. WHETHER THIS IS A SUFFICIENT BASIS FOR A DETERMINATION OF NONRESPONSIBILITY IS OPEN TO SUBSTANTIAL QUESTION. HOWEVER, IN VIEW OF THE STAGE OF CONTRACT PERFORMANCE, WE DO NOT BELIEVE IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO DISTURB THE AWARD.

THE QUESTIONABLE NATURE OF THE BASIS FOR THE DETERMINATION OF NONRESPONSIBILITY IS BEING POINTED OUT IN A SEPARATE LETTER TO THE SECRETARY OF THE NAVY.