B-180988, DEC 24, 1974, 54 COMP GEN 509

B-180988, DEC 24, 1974, 54 COMP GEN 509

BIDS - AMBIGUOUS - TWO POSSIBLE INTERPRETATIONS - ABSENT ALTHOUGH PROTESTER CONTENDS BIDDING SAME PRICE FOR ITEM REQUIRING LIFE TESTING AS WAS BID FOR ITEMS NOT REQUIRING TESTING RAISES DOUBT AS TO BIDDER'S INTENTION TO PERFORM TESTING, THERE IS NO BASIS TO REJECT BID, SINCE BID ON EVERY ITEM IN INVITATION FOR BIDS, WITHOUT EXCEPTION BEING STATED, WAS RESPONSIVE, CONTRACTING OFFICER OBTAINED VERIFICATION OF BID AND REAFFIRMATION OF VERIFICATION AGAINST POSSIBLE ERROR IN BID, AND THERE WAS NO AMBIGUITY ON FACE OF BID AS TO INTENDED PRICE. BIDS - RESPONSIVENESS - RESPONSIVENESS V. BIDDER RESPONSIBILITY INFORMATION REQUIRED IN INVITATION FOR BIDS ON BIDDERS' DESIGN AND PRODUCTION EXPERIENCE FOR "COMPARABLE ITEMS" (SILVER-ZINC BATTERY CELLS OF CONFIGURATION BEING PROCURED) IS MATTER OF RESPONSIBILITY RATHER THAN RESPONSIVENESS, SINCE REQUEST RECOGNIZED INFORMATION WAS RELATED TO RESPONSIBILITY AND WAS REQUIRED ONLY AFTER BID OPENING. CONTRACTORS - RESPONSIBILITY - CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION ACCEPTED - EXCEPTIONS - DISTINGUISHED WHERE INVITATION FOR BIDS PROVIDES FOR OFFERORS' FURNISHING INFORMATION AS TO EXPERIENCE IN DESIGNING AND PRODUCING ITEMS COMPARABLE TO ITEM BEING PROCURED, RECORD WILL BE EXAMINED TO DETERMINE IF BIDDER TO WHOM AWARD WAS MADE MEETS EXPERIENCE REQUIREMENT AND RULE THAT AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY WILL NOT BE REVIEWED EXCEPT WHERE THERE ARE ALLEGATIONS THAT CONTRACTING OFFICER'S ACTIONS IN FINDING BIDDER RESPONSIBLE ARE TANTAMOUNT TO FRAUD IS DISTINGUISHED. CONTRACTS - PROTESTS - AFTER BID OPENING PROTEST AFTER BID OPENING THAT INVITATION FOR BIDS IS RESTRICTIVE IS UNTIMELY, SINCE INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVIDE THAT APPARENT IMPROPRIETIES IN SOLICITATIONS MUST BE PROTESTED PRIOR TO BID OPENING.

IN THE MATTER OF YARDNEY ELECTRIC CORPORATION, DECEMBER 24, 1974:

INVITATION FOR BIDS (IFB) N00024-74-B-7196, ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND ON FEBRUARY 1, 1974, SOUGHT BIDS ON SILVER-ZINC SUBMARINE BATTERIES FOR THE AGSS-555 IN ACCORDANCE WITH SHIP SYSTEMS COMMAND CONTRACT SPECIFICATION SHIPS-B-5692A, DECEMBER 21, 1973.

ONLY TWO BIDS WERE RECEIVED IN RESPONSE TO THE IFB. MOLECULAR ENERGY CORPORATION (MEC) BID $494,840 WHILE YARDNEY ELECTRIC CORPORATION (YARDNEY) BID $591,387. MEC WAS AWARDED THE CONTRACT ON MARCH 28, 1974. THEREAFTER, YARDNEY FILED A PROTEST WITH OUR OFFICE ALLEGING THAT THE AWARD TO MEC WAS IMPROPER FOR THE FOLLOWING REASONS:

1. MEC'S BID PRICE DID NOT PROVIDE FOR CERTAIN LIFE TESTING REQUIRED BY THE IFB AND MEC'S PRICE FOR ITEM 0003 SUBSTANTIALLY DIFFERED FROM YARDNEY'S;

2. YARDNEY IS THE ONLY BIDDER THAT MEETS THE EXPERIENCE REQUIREMENTS OF THE IFB; AND

3. THE IFB IS OVERLY RESTRICTIVE OF COMPETITION.

WITH REGARD TO YARDNEY'S FIRST CONTENTION, IT RELATES THAT MEC'S BID FOR ITEM 0004 IS INSUFFICIENT TO COVER THE COSTS OF LIFE TESTING. THE IFB CALLED FOR:

ITEM QUANTITY

0001 1 SUBMARINE BATTERY 330 CELLS (SILVER-ZINC).

0002 6 SPARE CELLS FOR ITEM 0001.

0003 1 ACCESSORIES FOR ITEM 0001.

0004 6 ACCEPTANCE/LIFE TEST CELLS.

0006 6 LABORATORY CELLS.

THE SPECIFICATION INDICATES THE FOLLOWING DEFINITIONS AND REQUIREMENTS:

3.5.2 BATTERIES ((ITEM 0001)). EACH BATTERY SHALL CONSIST OF THE GROUPING OF 165-INDIVIDUAL CELLS (55 CELLS FROM EACH OF 3 GROUPS). THE 2 BATTERIES SHALL BE TREATED AS SPECIFIED IN 4.4, AND 4.5 AND SHIPPED WHERE DIRECTED IN ACCORDANCE WITH 4.4.2.

3.5.3 SPARE CELLS ((ITEM 0002)). THE 6 SPARE CELLS (1 RANDOMLY SELECTED CELL FROM EACH GROUP) SHALL BE KEPT DRY AND SHIPPED WITH THE BATTERY.

3.5.4 ACCEPTANCE TEST CELLS ((ITEM 0004)). THE 6 SAMPLE CELLS (1 RANDOMLY SELECTED CELL FROM EACH GROUP) SHALL BE FILLED, FORMED AND ASSIGNED TO ACCEPTANCE TESTING IN ACCORDANCE WITH 4.3 AT THE MANUFACTURER'S PLANT.

3.5.5. LIFE TEST CELLS ((ITEM 0004)). AFTER COMPLETION OF THE ACCEPTANCE TESTS, THE SAME 6 CELLS OF 3.5.4 SHALL BE SUBMITTED TO LIFE TESTING IN ACCORDANCE WITH 4.3.4 AT THE MANUFACTURER'S PLANT.

4.3.4 LIFE TESTS. THE LIFE TESTS SHALL BE RUN AT ROOM TEMPERATURE, IN THE RANGE OF 60 DEGS. TO 90 DEGS. F. AFTER COMPLETION OF THE ACCEPTANCE TESTS, THE 6 SAMPLE CELLS OF 3.5.4 SHALL BE SUBMITTED TO LIFE TESTING AT THE MANUFACTURER'S PLANT ON THE FOLLOWING REGIMES OVER A PERIOD OF 19 MONTHS.

(A) 3 CELLS SHALL BE TESTED AS A 3-CELL BATTERY ON A MONTHLY ROUTINE CONSISTING OF 12 DISCHARGES AT 50 PERCENT DEPTH, CONSECUTIVELY AND REPEATEDLY AT THE 1-HOUR, 3-HOUR, 6-HOUR RATES WITH APPROXIMATELY EQUAL INTERVALS FOR RECHARGE AND FLOAT AT THE VOLTAGE RECOMMENDED IN THE MANUFACTURER'S SERVICE MANUAL. THE ENTIRE ROUTINE SHALL FIT IN A PERIOD OF ONE MONTH. ON THE 3RD MONTH, THE LAST DISCHARGE AT THE 6 HOUR RATE SHALL BE RUN AT 100 PERCENT DEPTH TO THE CUT-OFF VOLTAGE TO DETERMINE THE TOTAL CAPACITY OF THE 3-CELL BATTERY. THE QUARTERLY REPORT (SEE 3.6.4.1) SHALL INCLUDE ALL THE 12 DISCHARGES RUN WITHIN A PERIOD OF 90 DAYS. THE LIFE TEST PROCEDURE (SEE 3.6.2.2) SHALL DESCRIBE THE TEST SEQUENCE IN DETAIL AND THE DATA TO BE COLLECTED: AMONG OTHERS AVERAGE VOLTAGES DURING DISCHARGES, ELECTROLYTE LEVEL POSITIONS AT APPROPRIATE TIMES, ELECTROLYTE ADDITIONS, FLOAT CURRENT AND VOLTAGE AT BEGINNING AND END OF FLOAT AS WELL AS 2 READINGS IN BETWEEN.

(B) 3 CELLS SHALL BE TESTED AS A 3-CELL BATTERY ON A SIMULATED SHIP OPERATION REGIME, BASED ON MONTHLY DATA RECEIVED FROM THE SHIP. UNTIL THE BATTERY IS INSTALLED AND BECOMES OPERATIONAL, THE 3-CELL BATTERY WILL BE TESTED ON THE SAME REGIME AS (A), EXCEPT ONLY 6 DISCHARGES WILL BE REQUIRED IN LIEU OF 12, WITH THE LAST BEING 100 PERCENT AT THE 6 HOUR RATE. THIS QUARTERLY TEST DISCHARGE WILL STILL BE REQUIRED AFTER THE SIMULATED REGIME STARTS.

3.5.6 LABORATORY TEST CELLS ((ITEM 0006)). THE LAST 6 CELLS (1 RANDOMLY SELECTED CELL FROM EACH GROUP) SHALL BE KEPT DRY AND SHIPPED, WITH ALL NECESSARY PARTS AND INSTRUCTIONS FOR ACTIVATION, WITHIN 30 DAYS AFTER ACCEPTANCE OF THE DRY BATTERY BY DCAS TO A GOVERNMENT LABORATORY FOR LABORATORY TESTING AS SPECIFIED IN 4.3.5.

4.3.5 LABORATORY TESTS. THE 6 CELLS RESERVED IN 3.5.6 FOR LABORATORY TESTING SHALL BE TESTED AT A GOVERNMENT LABORATORY ON THE SAME REGIME AS SPECIFIED IN 4.3.4 OR EQUIVALENT AS DEFINED BY NAVSEC IN ACCORDANCE WITH THE REQUIREMENTS OF THIS SPECIFICATION. THE LABORATORY TESTING MAY BE WAIVED UPON NAVSEC SPECIFIC INSTRUCTIONS AND THE CELLS USED FOR OTHER PURPOSES.

MEC'S BID WAS AS FOLLOWS:

ITEM

0001 BATTERY $459,525.

0002 SPARE CELLS 1,392.50/UNIT.

0003 ACCESSORIES 2,850.00.

0004 ACCEPTANCE/LIFE TEST 1,392.50/UNIT.

CELLS

0006 LABORATORY CELLS 1,392.50/UNIT.

FOR COMPARISON, YARDNEY'S BIDS ON ITEMS 0002, 0003 AND 0004 WERE $1,439/UNIT, $13,100 AND $11,641/UNIT, RESPECTIVELY.

YARDNEY IMPLIES THAT, SINCE SECTION 4.3.4 OF THE SPECIFICATION REQUIRES SUBSTANTIAL CONTRACTOR EFFORT TO DISCHARGE ITS RESPONSIBILITY FOR LIFE TESTING THE CELLS IN QUESTION, BIDDING THE SAME PRICE FOR ITEM 0004 (LIFE TESTING) AS WAS BID FOR ITEMS 0002 AND 0006 (SIMILAR CELLS WITHOUT THE CONTRACTOR LIFE TEST REQUIREMENT) RAISES DOUBT AS TO WHETHER MEC ACTUALLY INTENDED TO PERFORM THE LIFE TESTING.

IN CERTAIN CIRCUMSTANCES, OUR OFFICE HAS RULED THAT A BIDDER CANNOT BE EFFECTIVELY ALLOWED THE OPTION SUBSEQUENT TO BID OPENING OF ARGUING THAT A SELF-INSERTED AMBIGUITY OR "MISTAKE" IN BID SHOULD BE INTERPRETED IN THE MANNER MOST FAVORABLE TO THE BIDDER. 51 COMP. GEN. 498 (1972); 39 ID. 185 (1959); 35 ID. 33 (1955); B-147397, OCTOBER 24, 1961. THOSE CASES, HOWEVER, ARE PREDICATED ON THE BIDDER'S INSERTION IN ITS BID OF AN APPARENT AMBIGUITY AS TO THE INTENDED PRICE. THERE THE BIDDER COULD AFTER OPENING CONTEND THAT ONE VIEW OF THE AMBIGUITY WAS CORRECT AS OPPOSED TO THE OTHER AS IT SUITED THE BIDDER'S PURPOSE. THE CASE AT HAND DOES NOT, HOWEVER, PRESENT SUCH A SITUATION SINCE ON THE FACE OF THE MEC BID THERE IS NO AMBIGUITY AS TO THE PRICE MEC STATED FOR THE WORK. THIS IS NOT TO SAY, HOWEVER, THAT THE CONTRACTING OFFICER'S ERROR DETECTION DUTY WAS LESSENED IN ANY RESPECT BY THE FACT THAT THE PRICE WAS UNAMBIGUOUS.

HERE, UPON BID OPENING, THE CONTRACTING OFFICER PURSUANT TO THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2-406.1 (1973 ED.) PROPERLY SOUGHT VERIFICATION OF MEC'S BID PRICE. MEC DID, ON MARCH 11, VERIFY ITS PRICES FOR ALL ITEMS. IT DID NOT AT THAT TIME INDICATE THAT IT HAD MADE ANY MISTAKE WHICH COULD HAVE LED TO CORRECTION OR ALLOWANCE TO WITHDRAW ITS BID. HOWEVER, IN ORDER TO ASSURE HIMSELF THAT MEC HAD NOT MADE ANY UNCONSCIOUS OR INADVERTENT ERRORS NOT CORRECTED AS A RESULT OF A FAILURE TO APPRECIATE THE SIGNIFICANCE OF VERIFICATION, THE CONTRACTING OFFICER BECAUSE OF THE SIGNIFICANT DISPARITY IN PRICES FOR ITEMS 0003 AND 0004 SOUGHT MEC'S REAFFIRMATION OF ITS PRICES AND UNDERSTANDING OF THOSE ITEMS.

MEC RESPONDED BY SPECIFICALLY STATING ON MARCH 27 THAT:

WE HAVE AGAIN REVIEWED ITEMS 0003 ACCESSORIES FOR ITEM 0001, AND ITEM 0004 ACCEPTANCE/LIFE TEST CELLS OF IFB N00024-74-B-7196 AND CONFIRM THAT WE UNDERSTAND MEANING OF THESE ITEMS AND THAT PRICE REMAINS AS QUOTED.

IN 47 COMP. GEN. 732 (1968) WE HELD THAT A CONTRACTING OFFICER NEED NOT DETERMINE BEFORE CONTRACT AWARD THAT EVERY PRODUCTION COST ELEMENT HAD BEEN CONSIDERED IN CONNECTION WITH A BIDDER'S PRICE IN ORDER TO DISCHARGE HIS DUTY TO VERIFY UNDER ASPR SEC. 2-406. HOWEVER, IN B 177405, NOVEMBER 29, 1972, WE DID STATE THAT WHERE THE FACTS CLEARLY AND CONVINCINGLY ESTABLISH THAT THE CONTRACTING OFFICER WAS OR SHOULD HAVE BEEN ON NOTICE THAT A BIDDER COULD NOT HAVE RECOGNIZED THE SIGNIFICANCE OF THE REQUEST FOR VERIFICATION OF THE BID, THE CONTRACTING OFFICER SHOULD REQUEST A REAFFIRMATION OF THE BID. HERE THE CONTRACTING OFFICER DID SO. MOREOVER, SINCE IN THIS CASE AS IN MATTER OF AEROSPACE AMERICA, INC., B-181439, JULY 16, 1974, THE CONTRACTING OFFICER MADE AN EFFORT TO PLACE THE BIDDER ON NOTICE OF THE BASIS UPON WHICH THE GOVERNMENT SUSPECTED THAT A MISTAKE MIGHT HAVE BEEN MADE AND THE BIDDER NOT ONLY VERIFIED BUT REAFFIRMED ITS PRICE (AND HIS UNDERSTANDING OF THE ITEMS IN QUESTION), ALLOWABLE CORRECTION OF MEC'S BID AFTER AWARD WOULD SEEM QUITE UNLIKELY. ACCORDINGLY, MEC AS OF THE DATE OF AWARD IS BOUND TO PERFORM ALL THE REQUIREMENTS STATED IN THE IFB AT ITS BID PRICE.

IN SUMMARY, WE BELIEVE THAT, BY SUBMITTING A PRICE ON EACH AND EVERY ITEM IN THE SOLICITATION WITHOUT ANY EXCEPTION BEING STATED, MEC'S BID WAS RESPONSIVE AND THE CASES CITED BY YARDNEY WHERE BIDDERS SUBMITTED DELIVERY SCHEDULES DIFFERING FROM THOSE IN THE IFB OR OFFERED NONCONFORMING PRODUCTS (53 COMP. GEN. 32 (1973); B-174391, APRIL 5, 1972; 51 COMP. GEN. 518 (1972)) ARE CLEARLY DISTINGUISHABLE FROM THE INSTANT CASE. MOREOVER, THE QUESTION OF ANY ERROR IN MEC'S BID WAS CONSIDERED, ACTED UPON AND RESOLVED TO THE GOVERNMENT'S SATISFACTION TO THE EXTENT THAT MEC WOULD NOT AT SOME LATER DATE BE IN A POSITION TO CONTEND THAT THE GOVERNMENT HAD TAKEN UNFAIR ADVANTAGE OF IT. THUS, NEITHER WAS THERE A BASIS TO REJECT MEC'S BID ON GROUNDS OF LACK OF RESPONSIVENESS NOR DOES THERE APPEAR TO BE A BASIS TO SUGGEST THAT MEC COULD AT SOME LATER DATE SUCCESSFULLY HAVE ITS BID PRICE ADJUSTED UPWARD.

REGARDING THE PROTEST RELATING TO MEC'S ALLEGED LACK OF EXPERIENCE, PARAGRAPH 38 OF THE IFB, AS AMENDED, READ IN PERTINENT PART:

IN ORDER TO ASSIST THE NAVAL SHIP SYSTEMS COMMAND IN DETERMINING THE RESPONSIBILITY OF ANY OFFEROR ON THIS PROCUREMENT, THE NAVAL SHIP SYSTEMS COMMAND RESERVES THE RIGHT TO REQUIRE, AFTER TIME SET FOR RECEIPT OF OFFER AND ON TEN (10) DAYS NOTICE, ANY OFFEROR TO SUBMIT A TECHNICAL REPORT IN WRITING. THIS REPORT SHALL BE SUFFICIENTLY COMPLETE AND DETAILED TO PERMIT THE NAVAL SHIP SYSTEMS COMMAND, WITHOUT REFERENCE TO ANY OTHER DATA, TO DETERMINE WHETHER THE OFFEROR IS TECHNICALLY QUALIFIED TO PRODUCE THE SUPPLIES AS SPECIFIED IN THIS SOLICITATION AND CAPABLE OF FURNISHING THEM BY THE REQUIRED DELIVERY DATES). TO THIS END, THE REPORT MUST INCLUDE THE OFFEROR'S EXPERIENCE IN DESIGNING AND PRODUCING ITEMS OF A QUALITY, COMPLEXITY AND PURPOSE COMPARABLE TO THE ITEMS CALLED FOR BY THIS SOLICITATION. THE NAVAL SHIP SYSTEMS COMMAND CONSIDERS THAT SUCH COMPARABLE ITEMS ARE SILVER ZINC CELLS OF THE CONFIGURATION USED IN AGSS- 555. THE REPORT SHOULD ALSO SET FORTH THE FACILITIES, PLANT EQUIPMENT, TOOLING AND TEST EQUIPMENT, AND THE BACKGROUND AND EXPERIENCE OF THE KEY PERSONNEL WHICH THE OFFEROR HAS AVAILABLE FOR DESIGNING AND PRODUCING THE SUPPLIES CALLED FOR BY THE SOLICITATION.

THE PROTESTER CONTENDS THAT NOTWITHSTANDING THE NAVY'S DESIGNATION, THE MATTER OF EXPERIENCE IN THIS INSTANCE IS A QUESTION OF RESPONSIVENESS RATHER THAN RESPONSIBILITY FOR IT ALLEGES THE EXPERIENCE REQUIREMENT "*** CONCERNS THE HISTORY OF PRODUCT PERFORMANCE RATHER THAN BIDDER EXPERIENCE ***. 52 COMP. GEN. 647 (1973)."

AS WE STATED IN 49 COMP. GEN. 553 (1970), AT PAGE 556 -

*** THE TEST TO BE APPLIED IN DETERMINING THE RESPONSIVENESS OF A BID IS WHETHER THE BID AS SUBMITTED IS AN OFFER TO PERFORM, WITHOUT EXCEPTION, THE EXACT THING CALLED FOR IN THE INVITATION, AND UPON ACCEPTANCE WILL BIND THE CONTRACTOR TO PERFORM IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS THEREOF. UNLESS SOMETHING ON THE FACE OF THE BID, OR SPECIFICALLY MADE A PART THEREOF, EITHER LIMITS, REDUCES OR MODIFIES THE OBLIGATION OF THE PROSPECTIVE CONTRACTOR TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE INVITATION, IT IS RESPONSIVE. ***

SINCE THE IFB SPECIFICALLY STATED THAT (1) THE MATTER OF EXPERIENCE WENT TO RESPONSIBILITY, AND (2) THE NAVY COULD REQUIRE AFTER BID OPENING THAT AN OFFEROR SUBMIT A TECHNICAL REPORT WHICH INCLUDED THE OFFEROR'S RELATED EXPERIENCE, THERE IS NO BASIS UPON WHICH TO CONSIDER THE MATTER AS ONE GOING TO RESPONSIVENESS.

THEREFORE, THE CONTENTION MADE BY YARDNEY WITH REGARD TO MEC'S EXPERIENCE ESSENTIALLY QUESTIONS THE AGENCY'S AFFIRMATIVE DETERMINATION OF MEC'S RESPONSIBILITY. IN THIS REGARD, OUR OFFICE HAS RECENTLY HELD THAT WE WOULD NOT REVIEW SUCH CASES EXCEPT WHERE THERE ARE ALLEGATIONS OR DEMONSTRATIONS THAT THE CONTRACTING OFFICER'S ACTIONS IN FINDING A BIDDER RESPONSIBLE ARE TANTAMOUNT TO FRAUD. MATTER OF CENTRAL METAL PRODUCTS, INCORPORATED, 54 COMP. GEN. 66 (1974); MATTER OF UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, 53 COMP. GEN. 931 (1974); MATTER OF KELLY SERVICES, B-182071, OCTOBER 8, 1974; MATTER OF COMMERCIAL OFFICE FURNITURE COMPANY, B-182115, SEPTEMBER 16, 1974; MATTER OF WALDMAN MANUFACTURING COMPANY, B-181883, AUGUST 27, 1974; MATTER OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS (LOCAL 814), B-181068, AUGUST 13, 1974; MATTER OF HOOPER CONSTRUCTION COMPANY, B-181486, AUGUST 1, 1974; MATTER OF CONTINENTAL CABLEVISION OF NEW HAMPSHIRE, INC., ET AL., B-178542, JULY 19, 1974; MATTER OF GENERAL DYNAMICS, B 181756, JULY 19, 1974; MATTER OF SEAL BOND, INC., B-180696, JUNE 17, 1974; MATTER OF WILKINSON MANUFACTURING COMPANY, B-181076, JUNE 5, 1974. THESE CASES, HOWEVER, CONTAINED QUESTIONS OF RESPONSIBILITY ESSENTIALLY TURNING ON THE GENERAL BUSINESS JUDGMENT OF THE CONTRACTING OFFICER. IN SITUATIONS LIKE THE INSTANT CASE, WHERE THE QUESTION OF RESPONSIBILITY REVOLVES AROUND THE BIDDER'S MEETING OR FAILING TO MEET CERTAIN SPECIFIC AND OBJECTIVE RESPONSIBILITY CRITERIA EXPRESSED IN THE SOLICITATION, OUR OFFICE WILL REVIEW, TO THE EXTENT POSSIBLE, THE DETERMINATIONS OF THE CONTRACTING OFFICER TO SEE IF THE SPECIFIED RESPONSIBILITY CRITERIA HAVE BEEN MET. ACCORDINGLY, THE ABOVE-CITED CASES ARE DISTINGUISHED.

WITH REGARD TO THE INSTANT QUESTION OF MEC'S RELEVANT EXPERIENCE, THAT NAVY STATES THAT:

MEC HAS *** SUPPLIED ADVANCE PROTOTYPE CELLS ON THE NR-1 AND DOLPHIN CELLS UNDER R&D CONTRACTS N00024-73-C-5043 AND N66314-73-C-9250 SHOWING THAT THEY HAVE THE CAPABILITY OF BUILDING LARGE CELLS AND LARGE SIZE ELECTRODES FOR THE DOLPHIN BATTERIES. ***

OUR OFFICE HAS EXAMINED THE ABOVE-NOTED CONTRACTS. CONTRACT -9250, AWARDED ON AUGUST 9, 1972, CALLED FOR THE FURNISHING OF TWO EXPERIMENTAL, DEVELOPMENTAL SILVER-ZINC CELLS OF 4,100- AND 880-AMPERE HOUR CAPACITY, RESPECTIVELY, FOR USE ON EXPERIMENTAL SUBMARINES AGSS 555 AND NR-1. CONTRACT -5043, AWARDED ON JULY 31, 1972, CALLED FOR THE FURNISHING OF TWO 850-AMPERE-HOUR RATED SILVER-ZINC CELLS AND TWO 4,000 AMPERE-HOUR RATED SILVER-ZINC CELLS. THESE CELLS WERE ALSO TO BE USED IN SUBMERSIBLE VEHICLES AND WERE BASED UPON CELL DESIGNS FOR THE NR-1 AND AGSS-555, RESPECTIVELY.

YARDNEY NOT ONLY CHALLENGES THE EXISTENCE OF MEC'S EXPERIENCE, BUT, MORE PRECISELY, QUESTIONS THE QUALITY OF MEC'S EXPERIENCE, SINCE IT ALLEGES THAT THE HARDWARE (TERMINALS, HEAT EXCHANGERS, FIRE WALLS, FLASH ARRESTERS, LEVEL INDICATORS, VALVES AND CELL CASE LINERS) USED BY MEC IN CONSTRUCTING CELLS UNDER THESE PRIOR CONTRACTS WAS NOT MANUFACTURED BY OR UNDER THE DIRECTION OF THAT FIRM BUT RATHER WAS PROVIDED MEC BY THE NAVY.

IN THIS REGARD, THE IFB REQUIRED THAT THERE BE OBJECTIVE EVIDENCE PRESENTED INDICATING THAT AN OFFEROR HAD EXPERIENCE IN DESIGNING AND PROVIDING SILVER-ZINC CELLS OF THE CONFIGURATION USED IN THE AGSS-555 SUBMARINE. AS NOTED ABOVE, WE BELIEVE THAT WHETHER THIS EVIDENCE HAS BEEN PRODUCED IS A MATTER COGNIZABLE BY THIS OFFICE. ACCORDINGLY, WE BELIEVE THAT THE WORK PERFORMED UNDER THE PREVIOUSLY NOTED MEC CONTRACTS IS EVIDENCE THAT MEC HAS HAD EXPERIENCE IN SILVER-ZINC CELLS OF THE REQUISITE CONFIGURATION.

HOWEVER, THE RELATIVE QUALITY OF MEC'S EXPERIENCE IS A MATTER OF JUDGMENT RESERVED TO THE CONTRACTING OFFICER IN DETERMINING THE OFFEROR'S RESPONSIBILITY. IT IS THIS TYPE OF SUBJECTIVE JUDGMENT LEADING TO AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WHICH THE COURT OF CLAIMS RECOGNIZED IN KECO INDUSTRIES V. UNITED STATES, 428 F.2D 1233, 1240 (192 CT. CL. 773 (1970)), AS "NOT READILY SUSCEPTIBLE TO REASONED JUDICIAL REVIEW," AND WHICH GAO HAS DECLINED TO REVIEW IN THE ABSENCE OF ACTIONS WHICH ARE TANTAMOUNT TO FRAUD. SEE MATTER OF CENTRAL METAL PRODUCTS, INCORPORATED, SUPRA. THEREFORE, WHILE WE DO BELIEVE THAT MEC HAS RELEVANT EXPERIENCE, WE WILL NOT REVIEW THE SUFFICIENCY OF THAT EXPERIENCE AND HENCE CANNOT IN THE ABSENCE OF ALLEGATIONS OF FRAUD FURTHER CONSIDER THE MATTER OF THIS AFFIRMATIVE DETERMINATION OF RESPONSIBILITY.

WITH REGARD TO THE ALLEGED RESTRICTIVENESS OF THE IFB, WE REFER TO OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2(A) (1974), WHICH PROVIDES THAT ANY APPARENT IMPROPRIETY IN THE SOLICITATION MUST BE PROTESTED TO OUR OFFICE PRIOR TO BID OPENING TO BE CONSIDERED TIMELY. SINCE BID OPENING OCCURRED ON MARCH 7, 1974, WITH THE PROTEST FILED THEREAFTER, WE MUST CONSIDER YARDNEY'S PROTEST UNTIMELY IN THIS REGARD.

FOR THE REASONS NOTED ABOVE, THE PROTEST IS DENIED.