B-176202, SEP 26, 1972

B-176202: Sep 26, 1972

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IS A QUESTION OF FACT FOR DETERMINATION BY THE CONTRACTING OFFICER. HIS DETERMINATION WILL NOT BE DISTURBED IN THE ABSENCE OF CONVINCING EVIDENCE THAT IT WAS ARBITRARY. GREEN: REFERENCE IS MADE TO YOUR TWX MESSAGE OF JUNE 9. BOEHME SUBMITTED THE LOW PROPOSAL AND A PRE-AWARD SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT OFFICE IN GARDEN CITY. THE CONTRACTING OFFICER DETERMINED THAT BOEHME WAS A RESPONSIBLE OFFEROR AND AWARDED THE CONTRACT TO THAT COMPANY ON JUNE 9. YOU CONTEND THAT BOEHME CANNOT MEET THE INITIAL DELIVERY REQUIREMENTS BECAUSE ITS CURRENT PRODUCTION OF THE COMPASS SYSTEM IS DEPENDENT UPON ROTATING COMPONENTS PURCHASED FROM YOUR DURHAM. THAT THE NORMAL LEAD TIME FOR THESE COMPONENTS IS 16 WEEKS.

B-176202, SEP 26, 1972

BID PROTEST - BIDDER RESPONSIBILITY - DELIVERY SCHEDULES DECISION DENYING THE PROTEST OF SPERRY FLIGHT SYSTEMS DIVISION AGAINST AWARD OF A CONTRACT TO H. O. BOEHME, INC., UNDER AN RFP ISSUED BY THE U.S. ARMY ELECTRONICS COMMAND FOR GYRO-MAGNETIC COMPASS SETS AND DIRECTIONAL GYROSCOPES. THE DETERMINATION AS TO THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, WHICH INCLUDES HIS ABILITY TO MEET THE REQUIRED SCHEDULE, IS A QUESTION OF FACT FOR DETERMINATION BY THE CONTRACTING OFFICER, AND HIS DETERMINATION WILL NOT BE DISTURBED IN THE ABSENCE OF CONVINCING EVIDENCE THAT IT WAS ARBITRARY, CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE.

TO MR. R. E. GREEN:

REFERENCE IS MADE TO YOUR TWX MESSAGE OF JUNE 9, 1972, AND LETTER DATED JUNE 12, 1972, WHEREBY YOU PROTEST THE UNITED STATES ARMY ELECTRONICS COMMAND'S AWARD OF CONTRACT NO. DAAB05-72-C-4013 TO H. O. BOEHME, INCORPORATED (BOEHME), PURSUANT TO REQUEST FOR PROPOSALS NO. DAAB05-72-R- 0125 ISSUED FEBRUARY 8, 1972, FOR THE PROCUREMENT OF 298 GYRO-MAGNETIC COMPASS SETS AND 20 DIRECTIONAL GYROSCOPES.

BOEHME SUBMITTED THE LOW PROPOSAL AND A PRE-AWARD SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT OFFICE IN GARDEN CITY, NEW YORK, WHICH RECOMMENDED A COMPLETE AWARD. BASED UPON THE FAVORABLE PRE-AWARD SURVEY OF JUNE 2, 1972, AND THE FAVORABLE CONTRACTOR EVALUATION BOARD RECOMMENDATION OF JUNE 7, 1972, THE CONTRACTING OFFICER DETERMINED THAT BOEHME WAS A RESPONSIBLE OFFEROR AND AWARDED THE CONTRACT TO THAT COMPANY ON JUNE 9, 1972.

THE RFP CALLS FOR INITIAL DELIVERIES WITHIN EITHER 90 OR 120 DAYS AFTER AWARD. YOU CONTEND THAT BOEHME CANNOT MEET THE INITIAL DELIVERY REQUIREMENTS BECAUSE ITS CURRENT PRODUCTION OF THE COMPASS SYSTEM IS DEPENDENT UPON ROTATING COMPONENTS PURCHASED FROM YOUR DURHAM, NORTH CAROLINA FACILITY, THAT THE NORMAL LEAD TIME FOR THESE COMPONENTS IS 16 WEEKS, AND THAT SINCE BOEHME DID NOT PLACE AN ADVANCE ORDER FOR THEM, IT IS IMPOSSIBLE FOR BOEHME TO ASSEMBLE, TEST, AND SHIP THE EQUIPMENT WITHIN THE REQUIRED TIME. YOU REQUEST THAT THE CONTRACT BE CANCELLED AND AWARD BE MADE TO SPERRY FLIGHT SYSTEMS DIVISION.

IN RESPONSE TO YOUR PROTEST BOEHME HAS FURNISHED A COPY OF AN AMENDMENT DATED APRIL 7, 1972, TO ITS PURCHASE ORDER NO. 30036 TO YOUR DURHAM PLANT, INCREASING ITS ORDER FOR ALL ROTATING COMPONENT PARTS BY 25 UNITS EACH. THE COPY OF THE AMENDMENT SHOWS THAT IT WAS ACCEPTED ON BEHALF OF SPERRY RAND ON APRIL 13, 1972, BY N. W. LANGSTON FOR DELIVERY IN JULY 1972. BOEHME HAS STATED THAT THESE COMPONENTS WERE PAID FOR AS OF JUNE 6, 1972, AND THAT IT PLACED A VERBAL ORDER IN JUNE FOR AN ADDITIONAL 350 EACH PIECES OF THE COMPONENTS, DELIVERY TO COMMENCE IN SEPTEMBER.

MOREOVER, AMONG THE DETERMINATIONS OF THE PRE-AWARD SURVEY WAS THE FOLLOWING:

"ABILITY TO MEET REQUIRED SCHEDULE: SATISFACTORY. H. O. BOEHME INC. IS CONSIDERED TO BE CAPABLE OF MEETING THE REQUIRED SCHEDULE OF 298 EACH GYRO MAGNETIC COMPASS SETS AN/ASN-43A TO BE DELIVERED TEN EACH WITHIN NINETY DAYS AFTER AWARD, TWENTY EACH WITHIN 120 DAYS AFTER AWARD AND FIFTY EACH PER MONTH THEREAFTER UNTIL COMPLETION AND ALSO TWENTY EACH GYROSCOPE CN- 998A/ASN-43 TO BE DELIVERED FIVE EACH WITHIN NINETY DAYS AFTER AWARD AND FIFTEEN EACH WITHIN 120 DAYS AFTER AWARD. THIS OPINION IS BASED UPON THE ADEQUATE LEAD TIME FOR MATERIAL RECEIPTS AND THE SUFFICIENT FACILITIES AND EMPLOYEES THAT ARE ESTIMATED TO BE AVAILABLE ABOUT 7/31/72 FROM THE CURRENT GYRO CONTRACT DAAG07-69-C 0024."

PARAGRAPH 1-902 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES THAT CONTRACTS BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. ASPR 1-904.1 PRECLUDES AN AWARD UNLESS THE CONTRACTING OFFICER FIRST MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE UNDER THE CRITERIA SET OUT IN ASPR 1-903. ONE OF THE ELEMENTS TO BE CONSIDERED IS THE ABILITY TO COMPLY WITH THE REQUIRED PERFORMANCE SCHEDULE. ASPR 1-903.1(II).

IN B-167245, AUGUST 18, 1969, A CASE INVOLVING A SIMILAR FACTUAL SITUATION, THE WELL-ESTABLISHED RULE OF THIS OFFICE CONCERNING REVIEW OF RESPONSIBILITY DETERMINATIONS WAS STATED AS FOLLOWS:

"IT HAS LONG BEEN OUR POSITION THAT IT IS NEITHER THE PROVINCE NOR THE INTENTION OF OUR OFFICE TO DETERMINE THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, SUCH DETERMINATION BEING A QUESTION OF FACT PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER CONCERNED. 45 COMP. GEN. 4; 43 ID. 257; 38 ID. 131; 37 ID. 430. IN THESE AND OTHER DECISIONS WE HAVE TAKEN THE POSITION THAT A DETERMINATION OF RESPONSIBILITY NECESSARILY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION AND JUDGMENT WHICH SHOULD NOT BE DISTURBED BY OUR OFFICE IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS OR NOT BASED UPON SUBSTANTIAL EVIDENCE. IT IS, HOWEVER, THE PROVINCE AND FUNCTION OF OUR OFFICE TO REVIEW THE RECORD BEFORE US TO DETERMINE IF IT REASONABLY SUPPORTS THE CONTRACTING OFFICER'S FINDING. 45 COMP. GEN. 4, SUPRA."

AFTER A REVIEW OF THE RECORD IN THIS CASE, WE FIND NO BASIS TO CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION OF BOEHME'S RESPONSIBILITY WAS ARBITRARY, CAPRICIOUS, OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE. ACCORDINGLY, YOUR PROTEST IS DENIED.