B-175611, JUL 25, 1972

B-175611: Jul 25, 1972

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DETERMINATION OF BIDDER RESPONSIBILITY IS A DECISION WITHIN THE SOUND DISCRETION OF THE PROCURING AGENCY. AS NO SHOWING OF ABUSE OF THAT DISCRETION HAS BEEN MADE - OTHER THAN UNSUPPORTED ALLEGATIONS WHICH HAVE BEEN REBUTTED BY THE ADMINISTRATIVE REPORT - THE PROTEST IS DENIED. INC.: REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 31. PROPOSALS WERE RECEIVED FROM MARSHALL AND THE CRYOGENIC DIVISION OF U.S. DURING THE PERIOD IN WHICH NEGOTIATIONS WERE TAKING PLACE YOUR FIRM PURCHASED CRYOGENIC AND SUBMITTED A REVISED PROPOSAL SUPERSEDING ITS OFFER. THE CONTRACTING OFFICER DETERMINED THAT THE BEST AND FINAL PROPOSALS OF BOTH OFFERORS WERE WITHIN THE COMPETITIVE RANGE AND THEREFORE NO FURTHER NEGOTIATIONS WERE CONDUCTED.

B-175611, JUL 25, 1972

BID PROTEST - BIDDER RESPONSIBILITY - AGENCY DISCRETION DENYING PROTEST OF CRYOGENIC TECHNOLOGY, INC., AGAINST AWARD OF A CONTRACT TO MARSHALL INDUSTRIES, INC., UNDER AN RFP ISSUED BY THE NAVAL ORDNANCE STATION, INDIAN HEAD, MD., FOR MODIFICATION OF A GOVERNMENT OWNED CRYOGENERATOR ASSEMBLY. DETERMINATION OF BIDDER RESPONSIBILITY IS A DECISION WITHIN THE SOUND DISCRETION OF THE PROCURING AGENCY. AS NO SHOWING OF ABUSE OF THAT DISCRETION HAS BEEN MADE - OTHER THAN UNSUPPORTED ALLEGATIONS WHICH HAVE BEEN REBUTTED BY THE ADMINISTRATIVE REPORT - THE PROTEST IS DENIED.

TO CRYOGENIC TECHNOLOGY, INC.:

REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 31, APRIL 7 AND JUNE 8, 1972, PROTESTING AGAINST THE AWARD OF A CONTRACT TO MARSHALL INDUSTRIES, INC. (MARSHALL), UNDER RFP N00174-72-R-0056, ISSUED BY THE NAVAL ORDNANCE STATION, INDIAN HEAD, MARYLAND.

THE SUBJECT SOLICITATION REQUIRED THE MODIFICATION OF ONE GOVERNMENT OWNED AND FURNISHED CRYOGENERATOR ASSEMBLY. PROPOSALS WERE RECEIVED FROM MARSHALL AND THE CRYOGENIC DIVISION OF U.S. PHILIPS CORPORATION (CRYOGENIC). DURING THE PERIOD IN WHICH NEGOTIATIONS WERE TAKING PLACE YOUR FIRM PURCHASED CRYOGENIC AND SUBMITTED A REVISED PROPOSAL SUPERSEDING ITS OFFER. THE CONTRACTING OFFICER DETERMINED THAT THE BEST AND FINAL PROPOSALS OF BOTH OFFERORS WERE WITHIN THE COMPETITIVE RANGE AND THEREFORE NO FURTHER NEGOTIATIONS WERE CONDUCTED. CONTRACT AWARD WAS MADE TO THE LOW OFFEROR, MARSHALL, ON APRIL 4, 1972, PRIOR TO THE RECEIPT OF YOUR PROTEST BY THE CONTRACTING OFFICER.

THE BASIS FOR YOUR PROTEST IS YOUR BELIEF THAT MARSHALL DOES NOT HAVE THE CAPABILITY TO PERFORM THE CONTRACT WORK. IN SUPPORT OF THIS POSITION YOU CONTEND THAT AT THE TIME OF CONTRACT AWARD MARSHALL HAD NO EMPLOYEES CAPABLE OF PERFORMING THE REQUIRED CONTRACT WORK AND NO MANUFACTURING FACILITIES. IN THIS REGARD YOU ALLEGE THAT MR. JOHN MARSHALL, THE PRESIDENT OF MARSHALL, OPERATES THE BUSINESS FROM HIS HOME, EMPLOYS ONLY CONSULTANTS AND HAS RENTED A SMALL MACHINE SHOP LOCATED IN GARAGE IN A RESIDENTIAL AREA. YOU ALSO CONTEND THAT MR. JOHN MARSHALL IS A FORMER EMPLOYEE OF CRYOGENIC AND THAT HIS PERFORMANCE OF THE CONTRACT MAY VIOLATE A CONFIDENTIALITY AGREEMENT BETWEEN HIMSELF AND THE U. S. PHILIPS CORPORATION. FURTHER, YOU CONTEND THAT MR. MARSHALL IS NOW EMPLOYED BY ANOTHER COMPANY AND THAT THE NEW ENGLAND TELEPHONE COMPANY HAS NO TELEPHONE LISTING FOR MARSHALL.

THE CONTRACTING OFFICER ALSO ADVISES THAT DURING NEGOTIATIONS IT WAS ASCERTAINED THAT WHILE MR. MARSHALL DID NOT HAVE THE EQUIPMENT IN HIS COMPANY TO PERFORM THE NECESSARY MACHINE WORK, THE SYSTEM WOULD BE MODIFIED IN NORMAND G. PHANEUF MACHINE COMPANY'S (PHANEUF) SHOP IN NORTH SMITHFIELD, RHODE ISLAND. WE HAVE BEEN INFORMALLY ADVISED BY THE NAVAL SUPPLY SYSTEMS COMMAND THAT THE ARRANGEMENT WITH PHANEUF WAS IN THE FORM OF A SUBCONTRACT TO PERFORM THE REQUIRED MACHINE WORK.

WITH REGARD TO WHETHER MARSHALL HAS EMPLOYEES CAPABLE OF PERFORMING THE REQUIRED MODIFICATION THE CONTRACTING OFFICER DETERMINED THAT THE FIRM HAD THE NECESSARY EXPERTISE. IN ADDITION, MR. MARSHALL HAS STATED THAT HE HAS ASSIGNED SEVERAL OF THE BEST QUALIFIED ENGINEERS AND TECHNICIANS TO THE PROJECT AND HAS RETAINED CONSULTANTS SPECIALIZING IN THE FIELD OF CRYOGENIC STORAGE, REFRIGERATION AND STRUCTURE TO ASSIST HIM WHEN NEEDED.

CONCERNING YOUR CONTENTION THAT MR. MARSHALL, AS A FORMER EMPLOYEE OF CRYOGENIC, MAY VIOLATE A CONFIDENTIALITY AGREEMENT IN PERFORMING THIS CONTRACT, THE RECORD IS VOID OF ANY EVIDENCE OF SUCH AN AGREEMENT, OTHER THAN YOUR UNSUPPORTED ALLEGATION WHICH DOES NOT PROVIDE A SUFFICIENT BASIS FOR CANCELLING THE AWARD.

FURTHER, WITH RESPECT TO YOUR BELIEF THAT MR. MARSHALL IS NOW EMPLOYED BY ANOTHER COMPANY, MR. MARSHALL HAS STATED THAT HE WILL BE THE PROJECT ENGINEER ON THIS CONTRACT, AND THE RECORD DOES NOT EVIDENCE THAT HE WILL NOT DEVOTE ADEQUATE TIME AND ATTENTION TO OBTAIN THE SUCCESSFUL PERFORMANCE OF THE CONTRACT.

YOUR CONTENTIONS AS TO THE CAPABILITIES OF THE MARSHALL ORGANIZATION TO SUCCESSFULLY PERFORM THE CONTRACT CONCERN THAT FIRM'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR. OUR OFFICE HAS CONSISTENTLY HELD THAT DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY AND NOT OF THE GENERAL ACCOUNTING OFFICE. IN MAKING A DETERMINATION OF RESPONSIBILITY, CONTRACTING OFFICERS ARE AFFORDED A REASONABLE DEGREE OF ADMINISTRATIVE DISCRETION, AND SUCH A DETERMINATION IS SUBJECT TO QUESTION BY OUR OFFICE ONLY WHERE ARBITRARY OR CAPRICIOUS OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. RESPONSIBILITY REFERS TO THE POTENTIAL ABILITY OF A PROSPECTIVE CONTRACTOR TO PERFORM SUCCESSFULLY UNDER THE TERMS OF A PROPOSED CONTRACT AND CONTRACTING OFFICERS THEREFORE MUST PREDICT FUTURE PERFORMANCE. SINCE CONTRACTING OFFICERS ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, WE HAVE HELD THAT IT WOULD BE UNREASONABLE TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICERS IN SUCH MATTERS. B-165842, APRIL 1, 1969.

IN THE INSTANT CASE, THE RECORD AFFORDS NO PROPER BASIS FOR THIS OFFICE TO QUESTION THE DETERMINATION OF THE CONTRACTING OFFICER THAT MARSHALL IS A RESPONSIBLE CONTRACTOR FOR PURPOSES OF THE AWARD. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.