B-176318, SEP 29, 1972

B-176318: Sep 29, 1972

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A DETERMINATION BY THE CONTRACTING OFFICER AS TO THE RESPONSIBILITY OF A BIDDER WILL NOT BE QUESTIONED UNLESS THERE IS CONVINCING EVIDENCE THAT SUCH DETERMINATION WAS THE RESULT OF ARBITRARY ACTION. OR WAS OTHERWISE UNREASONABLE. A PROSPECTIVE CONTRACTOR CAN RECOVER HIS BID PREPARATION COSTS ONLY WHEN HIS OFFER IS NOT SOLICITED IN GOOD FAITH OR HIS PROPOSAL IS NOT HONESTLY AND FAIRLY CONSIDERED. PELLAND & BRAUDE: THIS IS IN REPLY TO LETTERS DATED JUNE 23 AND 29. THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM COULD NOT BE CONSIDERED A RESPONSIBLE BIDDER SINCE YOU WERE UNABLE TO ADEQUATELY DEMONSTRATE. IT IS YOUR POSITION THAT NOTWITHSTANDING THE TEST RESULTS. YOUR FIRM WAS IN FACT CAPABLE OF PERFORMING BY THE EARLY PART OF JULY.

B-176318, SEP 29, 1972

BID PROTEST - RESPONSIBILITY - RECOVERY OF BID PREPARATION COSTS DENIAL OF PROTEST ON BEHALF OF CENTRAL DATA PROCESSING, INC., AGAINST THE AWARD TO ANOTHER BIDDER OF A REQUIREMENTS CONTRACT UNDER AN IFB ISSUED BY THE DEFENSE SUPPLY SERVICE, WASHINGTON, D. C., TO PROVIDE SERVICES FOR SCANNING PREPRINTED QUESTIONAIRES AND CONVERTING THE QUESTIONAIRES TO MAGNETIC TAPE. A DETERMINATION BY THE CONTRACTING OFFICER AS TO THE RESPONSIBILITY OF A BIDDER WILL NOT BE QUESTIONED UNLESS THERE IS CONVINCING EVIDENCE THAT SUCH DETERMINATION WAS THE RESULT OF ARBITRARY ACTION, BAD FAITH, OR WAS OTHERWISE UNREASONABLE. ALSO, A PROSPECTIVE CONTRACTOR CAN RECOVER HIS BID PREPARATION COSTS ONLY WHEN HIS OFFER IS NOT SOLICITED IN GOOD FAITH OR HIS PROPOSAL IS NOT HONESTLY AND FAIRLY CONSIDERED. SEE KECO INDUSTRIES, INC. V. UNITED STATES, 428 F.2D 1233 (CT. CL. 1970).

TO SADUR, PELLAND & BRAUDE:

THIS IS IN REPLY TO LETTERS DATED JUNE 23 AND 29, 1972, FROM CENTRAL DATA PROCESSING, INC., AND YOUR LETTER OF JULY 19, 1972, ON THE COMPANY'S BEHALF, PROTESTING THE CONTRACT AWARD TO ANOTHER BIDDER UNDER IFB NO. DAHC15-72-B-0059, ISSUED BY THE DEFENSE SUPPLY SERVICE, WASHINGTON, D.C.

THE INVITATION, ISSUED ON MAY 15, 1972, SOUGHT TO OBTAIN BIDS BY MAY 31, 1972, FOR A REQUIREMENTS CONTRACT COVERING SERVICES FOR SCANNING A PREPRINTED MILITARY OCCUPATIONAL DATA BANK (MODB) QUESTIONNAIRE CONTAINING A SERIES OF STATEMENTS PERTINENT TO A SPECIFIC MILITARY OCCUPATIONAL SPECIALTY TO WHICH AN INDIVIDUAL HOLDING THAT SPECIALTY RESPONDS. THE INVITATION ALSO CONTEMPLATED THE CONVERSION OF THE MODB QUESTIONNAIRES TO MAGNETIC TAPE BY USE OF A MARK SENSE AND OPTICAL CHARACTER READER TO PROVIDE THE NECESSARY INPUT INTO THE MODB SYSTEM.

SECTION D OF THE INVITATION PROVIDES THAT, AS A PRECONDITION TO AWARD, THE BIDDER SHALL BE REQUIRED TO PROVE HIS CAPABILITIES BY PERFORMING A TEST BY JUNE 15, 1972, USING REALISTIC GOVERNMENT FURNISHED TEST DATA THAT PROVIDES PRECALCULATED RESULTS FOR ALL COMBINATIONS OF ROUTINES AND SUB- ROUTINES PERTINENT TO THE PERFORMANCE OF THE CONTRACT. THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM COULD NOT BE CONSIDERED A RESPONSIBLE BIDDER SINCE YOU WERE UNABLE TO ADEQUATELY DEMONSTRATE, ON TWO OCCASIONS IN JUNE, YOUR CAPABILITIES PURSUANT TO THE TEST PROVISIONS OF THE SOLICITATION.

IT IS YOUR POSITION THAT NOTWITHSTANDING THE TEST RESULTS, YOUR FIRM WAS IN FACT CAPABLE OF PERFORMING BY THE EARLY PART OF JULY, AS WOULD BE REQUIRED UNDER THE CONTRACT. MOREOVER, YOU CLAIM THAT 30 DAYS WERE NECESSARY TO PREPARE THE PROGRAM, AND YOU CONTEND THE CONTRACTING AGENCY WAS REMISS IN FAILING TO ADVERTISE THE REQUIREMENT AT AN EARLIER DATE SO AS TO ALLOW MORE THAN 15 DAYS AFTER BID OPENING FOR PERFORMANCE OF THE TEST. IN ADDITION, IT IS CONTENDED THAT THE TESTING WAS UNREASONABLE IN ONLY ALLOWING A DAY FOR PERFORMANCE SINCE UNDER THE TERMS OF THE CONTRACT 10 DAYS WOULD BE ALLOWED FOR PERFORMANCE OF EACH REQUIREMENT.

THE ARMY HAS REPORTED THAT TESTING PRIOR TO AWARD OF A COMPETITIVE PROCUREMENT OF AUTOMATIC DATA PROCESSING EQUIPMENT SERVICES WAS ADOPTED IN THIS CASE SINCE IT WAS CONSIDERED TO BE ESSENTIAL THAT THE SUCCESSFUL CONTRACTOR BE OPERATIONAL BY JULY 3. WHILE THE ARMY RECOGNIZED THAT YOUR FIRM DID NOT HAVE TO BE FULLY CAPABLE OF COMPLYING WITH ALL THE TERMS AND CONDITIONS OF THE CONTRACT ON THE TEST DATE, IT WAS REQUIRED THAT YOU DEMONSTRATE YOUR CAPACITY TO BE ABLE TO PERFORM BY JULY 3, 1972.

THE RECORD SHOWS THAT A TEST WAS CONDUCTED ON JUNE 15, THE RESULTS OF WHICH WERE UNSATISFACTORY. AFTER SOME DISCUSSION BETWEEN YOUR FIRM AND THE ARMY, AND SINCE TIME PERMITTED, IT WAS AGREED THAT YOUR FIRM WOULD BE GRANTED ANOTHER OPPORTUNITY TO COMPLETE THE TEST. ON JUNE 22, ANOTHER TEST WAS ADMINISTERED. ON THE BASIS OF THE RESULTS OF THESE TESTS, AS REPORTED BY THE CONTRACTING OFFICER'S TECHNICAL REPRESENTATIVE WHO ADMINISTERED BOTH TESTS, AND THE RESULTS OF A PRE AWARD SURVEY WHICH WAS CONDUCTED SIMULTANEOUSLY AND RESULTED IN A "NO AWARD" RECOMMENDATION, THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM WAS NON-RESPONSIBLE. GENERALLY, HE CONCLUDED THAT YOU DID NOT PROVE YOUR CAPABILITY TO PERFORM FOR THE FOLLOWING REASONS:

"1. THE CONTRACTOR WAS UNABLE TO SCAN PAGE 1.

"2. THE CONTRACTOR DEMONSTRATED LESS THAN COMPLETE CONTROL OVER HIS EQUIPMENT AND PERSONNEL IN THAT HE REQUIRED THREE DIFFERENT LOCATIONS TO TAKE THE TEST DUE TO EQUIPMENT DEFICIENCIES. THIS FURTHER EVIDENCES A LACK OF TECHNICAL CAPABILITY.

"3. THE CONTRACTOR WAS UNABLE TO SYNTHESIZE OR ANALYZE THE DATA CONTAINED IN THE GOVERNMENT'S QUESTIONNAIRE IN ACCORDANCE WITH SECTION F-1, SPECIFICATION, OF THE IFB."

IN CONNECTION WITH DETERMINATIONS OF RESPONSIBILITY BY CONTRACTING OFFICERS OF THE GOVERNMENT, WE HAVE CONSISTENTLY STATED THAT SUCH DETERMINATIONS ARE PRIMARILY THE FUNCTION OF THE PROCURING AGENCIES, AND WILL NOT BE QUESTIONED UNLESS THERE IS CONVINCING EVIDENCE THAT A DETERMINATION WAS THE RESULT OF ARBITRARY ACTION OR BAD FAITH OR WAS OTHERWISE UNREASONABLE. 45 COMP. GEN. 4 (1965).

FROM OUR REVIEW OF THE RECORD OF THIS CASE, WE BELIEVE THAT A REASONABLE INVESTIGATION OF YOUR CAPABILITY WAS CONDUCTED ON JUNE 15 AND 22, AND THAT THE CONTRACTING OFFICER HAD SUFFICIENT REASON FOR CONCLUDING THAT YOU DID NOT POSSESS THE NECESSARY SKILLS, OR THE ABILITY TO OBTAIN THE SKILLS, TO BE COMPLETELY OPERATIONAL BY JULY 3, THE SCHEDULED PERFORMANCE TIME. WHILE YOU QUESTION THE PROPRIETY OF REQUIRING THE TEST TO BE PERFORMED IN A SINGLE DAY, SINCE THE SOLICITATION PROVIDES THAT DELIVERY UNDER THE CONTRACT BE ACCOMPLISHED WITHIN 10 DAYS, WE NOTE THAT THE DELIVERY PROVISION OF THE SOLICITATION WAS BASED ON THE ESTIMATED QUANTITY OF 30,000 PAGES OF MODB QUESTIONNAIRES AND 20 MAGNETIC TAPES. WE SEE NO MERIT IN THIS ARGUMENT SINCE WE UNDERSTAND THAT THE TEST INVOLVED ONLY A SINGLE SAMPLE QUESTIONNAIRE.

ALTHOUGH YOU AND YOUR SUBCONTRACTOR CONSIDER 30 DAYS AFTER BID OPENING AS THE MINIMUM TIME NECESSARY FOR PREPARING THE PROGRAM, IT DOES NOT APPEAR THAT YOUR FAILURE TO COMPLETE THE PROGRAM BY THE TEST DATES WAS THE ONLY BASIS FOR THE DETERMINATION OF NONRESPONSIBILITY. RATHER, THE RECORD INDICATES THAT THE CONTRACTING OFFICER'S TECHNICAL REPRESENTATIVE RENDERED A CONSIDERED JUDGMENT, BASED UPON HIS OBSERVATION OF YOUR PERFORMANCE, HIS DISCUSSIONS DURING THE TESTS, AND THE TEST RESULTS, THAT YOUR COMPANY WAS NOT CAPABLE OF BEING COMPLETELY OPERATIONAL BY JULY 3. IN THE CIRCUMSTANCES WE ARE UNABLE TO CONCLUDE THAT THE DETERMINATION OF NONRESPONSIBILITY IS CLEARLY ERRONEOUS.

ACCORDINGLY, YOUR PROTEST IS DENIED.

IN CONNECTION WITH YOUR REQUEST FOR COMPENSATION IN THE AMOUNT OF $2,500 TO COVER THE COST WHICH YOU INCURRED IN THIS CASE, THE COURT OF CLAIMS HAS HELD THAT A PROSPECTIVE CONTRACTOR IS ENTITLED TO RECOVER HIS BID PREPARATION COSTS WHEN HIS OFFER IS NOT SOLICITED IN GOOD FAITH OR WHERE HIS BID OR PROPOSAL IS NOT HONESTLY AND FAIRLY CONSIDERED. SEE KECO INDUSTRIES, INC. V. UNITED STATES, 428 F.2D 1233 (CT. CL. 1970) AND CONTINENTAL BUSINESS ENTERPRISES, INC. V. UNITED STATES, 452 F.2D 1016 (CT. CL. 1971). WE FIND NO EVIDENCE IN THIS CASE TO JUSTIFY A CLAIM FOR SUCH COSTS.