B-180107, MAY 20, 1974

B-180107: May 20, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IN THE INSTANT CASE THE AGENCY'S DETERMINATION THAT THE LOW BIDDER WAS RESPONSIBLE WAS NOT SHOWN TO BE ARBITRARY. FTNTP-C8-19557-A-8-17 73 WAS ISSUED BY THE FEDERAL SUPPLY SERVICE. WHICHEVER IS LATER. PRODUCTS ENGINEERING HAS CONTENDED THAT SPIEVAK DID NOT HAVE ALL THE EQUIPMENT AND SPECIAL TOOLING NECESSARY TO PERFORM THE REQUIREMENTS OF THE CONTRACT AND COULD NOT OBTAIN THEM WITHOUT A LONG LEAD TIME WHICH WOULD MAKE IT IMPOSSIBLE TO COMPLY WITH THE DELIVERY SCHEDULE. PRODUCTS ENGINEERING FURTHER ALLEGES THAT SPIEVAK DOES NOT HAVE A MANUFACTURING FACILITY. THE PROTESTER ALLEGES THAT THE DECISION OF THE CONTRACTING OFFICER TO DELETE BID SAMPLE REQUIREMENTS BY ISSUANCE OF AN AMENDMENT TO THE SOLICITATION WAS DONE BECAUSE THE CONTRACTING OFFICER KNEW IT WOULD HAVE BEEN IMPOSSIBLE FOR SPIEVAK TO HAVE MET THAT REQUIREMENT.

B-180107, MAY 20, 1974

DETERMINATIONS CONCERNING QUALIFICATIONS OF PROSPECTIVE GOVERNMENT CONTRACTORS REQUIRE THE EXERCISE OF INDEPENDENT JUDGMENT BY THE ADMINISTRATIVE AGENCY AND, THEREFORE, GAO DOES NOT QUESTION AGENCY DECISIONS IN SUCH MATTERS UNLESS SHOWN TO BE WITHOUT A REASONABLE BASIS. IN THE INSTANT CASE THE AGENCY'S DETERMINATION THAT THE LOW BIDDER WAS RESPONSIBLE WAS NOT SHOWN TO BE ARBITRARY.

TO PRODUCTS ENGINEERING CORPORATION:

ON JULY 19, 1973, INVITATION FOR BIDS (IFB) NO. FTNTP-C8-19557-A-8-17 73 WAS ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION. THE IFB SOLICITED BIDS FOR A REQUIREMENTS-TYPE CONTRACT FOR 63 ITEMS OF THICKNESS AND FEELER GAGES FOR THE PERIOD OF NOVEMBER 1, 1973, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH OCTOBER 31, 1974.

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

IN RESPONSE TO PRODUCTS ENGINEERING'S PROTEST, GSA HAS FURNISHED OUR OFFICE A REPORT WHICH STATES THAT PRIOR TO AWARD THE CONTRACTING OFFICER CONCLUDED THAT THE QUALITY ASSURANCE SPECIALIST'S ASSESSMENT WITH REGARD TO INITIAL DELIVERY CAPABILITIES WAS BASED ON FACTS AND CONDITIONS EXISTING AS OF THE DATE OF THAT SURVEY WHICH WOULD NOT NECESSARILY REMAIN TRUE AT THE TIME OF PERFORMANCE. HE BELIEVED THAT SPIEVAK COULD MEET DELIVERY SCHEDULES SEVERAL WEEKS HENCE WHEN ACTUAL ORDERS WERE TO BE PLACED. SBA WAS ADVISED THAT UNDER THE CIRCUMSTANCES, NO PURPOSE WOULD BE SERVED IN PURSUING THE MATTER FURTHER AND GSA WOULD WITHDRAW ITS REQUEST FOR THE ISSUANCE OF THE COC. THE PROCURING ACTIVITY FURTHER POINTED OUT THAT, ALTHOUGH IT WAS TRUE THAT SPIEVAK AT ONE TIME WAS DETERMINED TO BE INCAPABLE OF PERFORMING UNDER THE SOLICITATION BECAUSE IT DID NOT HAVE INSPECTION AND TESTING PERSONNEL AND EQUIPMENT, SPIEVAK HAS SINCE TAKEN POSITIVE STEPS TO CORRECT THESE DEFICIENCIES, SUCH AS ORDERING TOOLING AND TEST EQUIPMENT AND OBTAINING FIRM COMMITMENTS FROM SUBCONTRACTORS.

THE PROCURING ACTIVITY PROVIDED OUR OFFICE WITH THE FOLLOWING EXPLANATION IN JUSTIFICATION OF THE AMENDMENT ISSUED TO WAIVE THE BID SAMPLE REQUIREMENT:

"THE DETERMINATION TO DELETE THE REQUIREMENT WAS BASED ON THE FOLLOWING REASONS: FIRST, IT WAS DETERMINED THAT THE BID SAMPLES REQUIREMENT WAS UNREALISTIC BECAUSE ONE OR TWO SAMPLES COULD SATISFY SEVERAL DIFFERENT DESIGNS OF ITEMS. IT WAS CLEAR THAT IF SAMPLES WERE TO BE REQUIRED, A COMPLETE REVISION OF THE REPRESENTATIVE SAMPLE GROUPINGS WOULD BE NECESSARY. SECOND, EVEN IF GSA WERE TO TAKE ACTION TO REVISE THE BID SAMPLES REQUIREMENT, SUCH ACTION WOULD CAUSE AT LEAST A TWO-WEEK DELAY IN BID OPENING. OUR CONTRACTING OFFICIAL ADVISED THAT IN VIEW OF THE FACT THAT BID OPENING ON AUGUST 17, 1973, WAS ALREADY ABOUT 3 WEEKS BEHIND SCHEDULE, AND ANY FURTHER DELAY WOULD UNDOUBTEDLY CREATE A VACUUM IN CONTRACT COVERAGE, IT WAS THEREFORE DETERMINED THAT IT WOULD BE IN THE BEST INTEREST OF THE GOVERNMENT TO DELETE THE BID SAMPLES REQUIREMENT."

DETERMINATIONS CONCERNING THE QUALIFICATIONS OF PROSPECTIVE GOVERNMENT CONTRACTORS REQUIRE THE EXERCISE OF INDEPENDENT JUDGMENT BY THE ADMINISTRATIVE AGENCY. THIS OFFICE DOES NOT QUESTION AGENCY DECISIONS IN SUCH MATTERS UNLESS SHOWN TO BE WITHOUT A REASONABLE BASIS. 37 COMP. GEN. 430 (1957); 52 COMP. GEN. 783 (1973).

WE THINK THE RECORD IN THIS CASE INDICATES THAT A REASONABLE BASIS EXISTS IN SUPPORT OF GSA'S AFFIRMATIVE DETERMINATION OF THE LOW BIDDER'S RESPONSIBILITY.

ACCORDINGLY, THE PROTEST IS DENIED.