B-177753(1), JUL 10, 1973

B-177753(1): Jul 10, 1973

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INC.: THIS IS IN REFERENCE TO YOUR LETTER OF APRIL 16. THE AWARD WAS MADE UNDER REQUEST FOR PROPOSALS (RFP) F34601-73-R 1994. A PREAWARD SURVEY REPORT WAS COMPLETELY FAVORABLE TO F&W AND THE CONTRACT WAS AWARDED TO THE COMPANY. YOU PROTESTED TO OUR OFFICE AGAINST THE AWARD CONTENDING THAT F&W HAS NOT FURNISHED BEARINGS FROM THE APPROVED SOURCES NAMED IN TWO PRIOR CONTRACTS AND THAT IT WILL NOT DO SO UNDER THE IMMEDIATE CONTRACT. THE RECORD INDICATES THAT YOU HAVE BEEN A SUPPLIER FOR PARTS KITS FOR SEVERAL YEARS AND THAT YOU HAVE BEEN CONCERNED FOR SOME TIME ABOUT THE MANNER IN WHICH OTHER SUPPLIERS HAVE BEEN PERFORMING THEIR CONTRACTS. YOU ALLEGED THAT THE BEARINGS THAT WERE FURNISHED UNDER CONTRACT F34601-71-C-1595.

B-177753(1), JUL 10, 1973

DENIAL OF BID PROTEST AGAINST AWARD OF CONTRACT NO. F34601-73-C-1488 TO FRANK & WARREN, INC. BY TINKER AIR FORCE BASE, OKLAHOMA.

TO AEROKING, INC.:

THIS IS IN REFERENCE TO YOUR LETTER OF APRIL 16, 1973, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF CONTRACT NO. F34601-73 C- 1488 TO FRANK & WARREN, INC., (F&W) BY TINKER AIR FORCE BASE (AFB), OKLAHOMA.

THE AWARD WAS MADE UNDER REQUEST FOR PROPOSALS (RFP) F34601-73-R 1994, ISSUED SEPTEMBER 7, 1972, WHICH CALLED FOR A QUANTITY OF 417 PARTS KITS FOR THE F4 AIRCRAFT. F&W SUBMITTED THE LOWEST OFFER OF THE TWO RECEIVED. A PREAWARD SURVEY REPORT WAS COMPLETELY FAVORABLE TO F&W AND THE CONTRACT WAS AWARDED TO THE COMPANY. YOU PROTESTED TO OUR OFFICE AGAINST THE AWARD CONTENDING THAT F&W HAS NOT FURNISHED BEARINGS FROM THE APPROVED SOURCES NAMED IN TWO PRIOR CONTRACTS AND THAT IT WILL NOT DO SO UNDER THE IMMEDIATE CONTRACT.

THE RECORD INDICATES THAT YOU HAVE BEEN A SUPPLIER FOR PARTS KITS FOR SEVERAL YEARS AND THAT YOU HAVE BEEN CONCERNED FOR SOME TIME ABOUT THE MANNER IN WHICH OTHER SUPPLIERS HAVE BEEN PERFORMING THEIR CONTRACTS. A LETTER DATED JUNE 22, 1972, TO TINKER AFB, YOU ALLEGED THAT THE BEARINGS THAT WERE FURNISHED UNDER CONTRACT F34601-71-C-1595, AWARDED JANUARY 27, 1971, AND WOULD BE FURNISHED UNDER CONTRACT F34601-72-C 3262, AWARDED MARCH 31, 1972, WERE NOT PURCHASED FROM THE APPROVED SOURCES AND WERE NOT NEW PARTS. ALSO, YOU PROVIDED TO THE FEDERAL BUREAU OF INVESTIGATION A STATEMENT DATED SEPTEMBER 8, 1972, WHEREIN YOU ALLEGED THAT THE BEARINGS SUPPLIED BY F&W UNDER CONTRACT F34601-71 C-1595 WERE OBTAINED FROM THE AERO INDEPENDENT BEARING COMPANY (AI) AND NOT FROM THE APPROVED SOURCES LISTED IN THE CONTRACT.

YOUR PROTEST RAISES THE QUESTION OF WHETHER F&W WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR RFP F34601-73-R-1994. THE AIR FORCE HAS STATED THAT, AS A RESULT OF YOUR LETTER OF JUNE 22, 1972, AN INVESTIGATION WAS CONDUCTED, WHICH FAILED TO PRODUCE SUFFICIENT INFORMATION TO WARRANT PROSECUTION OF F&W BY THE U.S. ATTORNEY, OR A DETERMINATION THAT F&W WAS NONRESPONSIBLE. IN THIS REGARD, OUR OFFICE HAS HELD THAT THE FILING OF A CRIMINAL INFORMATION AGAINST A CONTRACTOR IS NOT SUFFICIENT GROUNDS TO WARRANT AN ADVERSE RESPONSIBILITY DETERMINATION, AND THAT EVEN THE PROVISION OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH DEALS WITH CONTRACTOR DEBARMENT, ASPR 1 605.1(I)(C), APPEARS TO REQUIRE A CRIMINAL CONVICTION BEFORE RESPONSIBILITY IS AFFECTED. B-176682, DECEMBER 4, 1972. ALSO, IT HAS LONG BEEN THE RULE OF OUR OFFICE TO ACCEPT THE CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY, UNLESS IT IS SHOWN BY CONVINCING EVIDENCE THAT THE FINDING WAS ARBITRARY, CAPRICIOUS, OR NOT BASED UPON SUBSTANTIAL EVIDENCE. 51 COMP. GEN. 233 (1971). IN THE PRESENT CASE, WE FIND NO BASIS TO QUESTION THE DETERMINATION OF RESPONSIBILITY. ACCORDINGLY, YOUR PROTEST IS DENIED.

AS PART OF THE ADMINISTRATIVE REPORT, THE AIR FORCE INCLUDED A COPY OF A LETTER FROM F&W, DATED FEBRUARY 19, 1973, WHEREIN F&W STATES THAT IT INTENDS TO PURCHASE THE BEARINGS FROM AI, AND A COPY OF A LETTER FROM AI TO F&W, DATED FEBRUARY 15, 1973, WHEREIN AI STATES THAT IT WILL SUPPLY BEARINGS FROM THE APPROVED SOURCES. THE CONTRACTING OFFICER REGARDS THE FOREGOING AS AN INDICATION THAT THERE WILL BE COMPLIANCE WITH THE CONTRACT SPECIFICATIONS. HOWEVER, YOU QUESTION THAT THERE WILL BE THE INDICATED COMPLIANCE SINCE YOU STATE THAT AI IS NOT AN AUTHORIZED DISTRIBUTOR OF THE APPROVED SOURCES' BEARINGS AND HAS NOT PURCHASED ANY FROM THE APPROVED SOURCES.

THE QUESTION OF WHETHER THE PERFORMANCE OFFERED BY F&W ACTUALLY COMPLIES WITH CONTRACT SPECIFICATIONS IS AN ISSUE OF FACT TO BE DETERMINED BY THE CONTRACTING AGENCY. B-167263, SEPTEMBER 18, 1969. THE CONTRACTING OFFICER HAS ADVISED THAT SPECIAL INSPECTION PROCEDURES ON F&W ARE BEING INITIATED THROUGH THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) OFFICE IN NEW YORK. HOWEVER, IN VIEW OF THE SERIOUSNESS OF YOUR ALLEGATION THAT AI DOES NOT HAVE ANY COMMITMENTS FOR THE BEARINGS WITH THE APPROVED SOURCES, WE ARE SUGGESTING BY LETTER OF TODAY TO THE SECRETARY OF THE AIR FORCE, COPY ENCLOSED, THAT AS A DOUBLE CHECK F&W BE REQUESTED TO FURNISH FROM AI DOCUMENTATION THAT WILL ESTABLISH THAT THE BEARINGS THEY ARE PROVIDING ARE THE PRODUCTS OF THE APPROVED SOURCES OF SUPPLY.