B-180990, NOV 20, 1974

B-180990: Nov 20, 1974

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WERE NOT IN BEST INTEREST OF GOVERNMENT "PRICE AND OTHER FACTORS CONSIDERED" BECAUSE GOVERNMENT WILL NOT RECEIVE SUPPORT SERVICES PROTESTING BIDDER WOULD BE ABLE TO FURNISH IF GIVEN TOTAL AWARD. ON BASIS THAT IT WAS CRITICAL RESOURCE FOR NATIONAL DEFENSE SINCE ONLY SECRETARIES HAVE AUTHORITY TO MAKE DETERMINATION TO NEGOTIATE CONTRACT WITH PARTICULAR MANUFACTURER TO ASSURE THAT PROPERTY WILL BE AVAILABLE TO GOVERNMENT DURING NATIONAL EMERGENCY AND NO DETERMINATION WAS MADE. 3. DETERMINATION OF RESPONSIBILITY OF PROSPECTIVE CONTRACTORS IS PRIMARILY FOR RESOLUTION BY CONTRACTING AGENCY AND SINCE THERE HAS BEEN NO SHOWING OF FRAUD. MATTER WILL NOT BE CONSIDERED. 4. PROTEST AFTER BID OPENING THAT SPECIFICATIONS IN SOLICITATION WERE INADEQUATE FOR PROCUREMENT BY FORMAL ADVERTISING IS UNTIMELY.

B-180990, NOV 20, 1974

1. ALLEGATION BY BIDDER THAT SEPARATE AWARDS UNDER IFB, WHICH RESULTED IN LOWEST COST TO GOVERNMENT, WERE NOT IN BEST INTEREST OF GOVERNMENT "PRICE AND OTHER FACTORS CONSIDERED" BECAUSE GOVERNMENT WILL NOT RECEIVE SUPPORT SERVICES PROTESTING BIDDER WOULD BE ABLE TO FURNISH IF GIVEN TOTAL AWARD, PRESENTS NO BASIS TO QUESTION AWARD, SINCE EXPRESSION "PRICE AND OTHER FACTORS CONSIDERED" HAS BEEN HELD TO REQUIRE AWARD ON MOST FAVORABLE COST BASIS, ASSUMING RESPONSIVENESS OF BID AND RESPONSIBILITY OF BIDDER. 2. CONTRACTING OFFICER COULD NOT PROPERLY NEGOTIATE CONTRACT WITH PROTESTER UNDER ASPR 3-216 (1974 ED.) ON BASIS THAT IT WAS CRITICAL RESOURCE FOR NATIONAL DEFENSE SINCE ONLY SECRETARIES HAVE AUTHORITY TO MAKE DETERMINATION TO NEGOTIATE CONTRACT WITH PARTICULAR MANUFACTURER TO ASSURE THAT PROPERTY WILL BE AVAILABLE TO GOVERNMENT DURING NATIONAL EMERGENCY AND NO DETERMINATION WAS MADE. 3. DETERMINATION OF RESPONSIBILITY OF PROSPECTIVE CONTRACTORS IS PRIMARILY FOR RESOLUTION BY CONTRACTING AGENCY AND SINCE THERE HAS BEEN NO SHOWING OF FRAUD, MATTER WILL NOT BE CONSIDERED. 4. PROTEST AFTER BID OPENING THAT SPECIFICATIONS IN SOLICITATION WERE INADEQUATE FOR PROCUREMENT BY FORMAL ADVERTISING IS UNTIMELY, SINCE BID PROTEST PROCEDURES AND STANDARDS PROVIDE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING BE FILED PRIOR TO BID OPENING.

THE LEAVITT MACHINE COMPANY:

THE UNITED STATES NAVY SHIPS PARTS CONTROL CENTER ISSUED FORMALLY ADVERTISED SOLICITATION NO. N00104-74-B-0558 ON NOVEMBER 7, 1973, FOR VALVE RESEATING OUTFITS. ITEM 0001 WAS FOR A MINIMUM QUANTITY OF 38 AND A MAXIMUM QUANTITY OF 152 RESEATING OUTFITS; ITEM 0002 WAS FOR THE PRICING OF FIRST ARTICLE TESTING IF REQUIRED OF THE BIDDER; AND ITEM 0003 WAS FOR A SIMILAR RESEATING OUTFIT IN A MINIMUM QUANTITY OF 8 AND A MAXIMUM QUANTITY OF 48. BIDS WERE OPENED ON JANUARY 4, 1974, AND ON MARCH 28, 1974, AWARDS WERE MADE TO GREATER MARYLAND TOOL AND MANUFACTURING CORPORATION (GREATER MARYLAND) FOR ITEMS 0001 AND 0002 AND TO LEAVITT MACHINE COMPANY (LEAVITT) FOR ITEM 0003. AWARDS WERE MADE FOR THE MINIMUM QUANTITIES ADVERTISED--38 IN THE CASE OF GREATER MARYLAND AND 8 IN THE CASE OF LEAVITT.

BY LETTER OF APRIL 1, 1974, TO OUR OFFICE, LEAVITT PROTESTED THE AWARD OF ITEM 0001 TO GREATER MARYLAND CONTENDING THAT THE PROCUREMENT WAS NOT IN THE BEST INTEREST OF THE GOVERNMENT, THAT LEAVITT SHOULD BE CONSIDERED A CRITICAL RESOURCE FOR NATIONAL DEFENSE AND ALSO CHALLENGING THE RESPONSIBILTIY OF GREATER MARYLAND. IN THE SEPTEMBER 4 COMMENT ON THE ADMINISTRATIVE REPORT THE PROTEST WAS MADE THAT THE SPECIFICATIONS IN THE SOLICITATION WERE INADEQUATE FOR PROCUREMENT OF THE ITEMS BY FORMAL ADVERTISING.

LEAVITT ARGUES THAT THE BEST INTEREST OF THE GOVERNMENT WOULD HAVE BEEN SERVED BY AWARDING ITEMS 0001 AND 0003 TO LEAVITT BECAUSE BY MAKING SEPARATE AWARDS COMPANIES SUCH AS LEAVITT CANNOT AFFORD TO MAKE TECHNICAL IMPROVEMENTS ON EXISTING DESIGNS AND MAINTAIN LOGISTICAL AND TECHNICAL SERVICE SUPPORT. LEAVITT STATES THAT FOR YEARS IT HAS GIVEN A MULTITUDE OF FREE SERVICE TO PURCHASERS OF ITS EQUIPMENT SUCH AS TRAINING CREWS TO OPERATE THE VALVE RESEATER AND SATISFYING URGENT REQUESTS FOR DELIVERY OF ITEMS TO CERTAIN VESSELS. LEAVITT CONTENDS THAT ITS BID WAS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND "OTHER FACTORS CONSIDERED" PURSUANT TO PARAGRAPH 10(A) OF STANDARD FORM 33A BECAUSE OF THE ABOVE- MENTIONED BENEFITS.

A REVIEW OF THE ABSTRACT OF BIDS SHOWS THAT GREATER MARYLAND'S EXTENDED BID FOR ITEMS 0001 AND 0002 WAS $86,300 AND $36,100 FOR ITEMS 0002 AND 0003, WHILE LEAVITT'S BID WAS $94,278 AND $9,456 FOR ITEM 0001 AND 0003, RESPECTIVELY. THEREFORE, THE LOWEST COST TO THE GOVERNMENT WAS OBTAINED BY MAKING SEPARATE AWARDS. OUR OFFICE HAS CONSISTENTLY HELD THE LANGUAGE OF PARAGRAPH 10(A) OF STANDARD FORM 33A TO REQUIRE AWARD ON THE BASIS OF THE MOST FAVORABLE COST TO THE GOVERNMENT, ASSUMING THE RESPONSIVENESS OF THE BID AND THE RESPONSIBILITY OF THE BIDDER. 47 COMP. GEN. 658 (1968) AND B-180477, FEBRUARY 11, 1974. THEREFORE, WE HAVE NO OBJECTION TO THE AWARDS AS MADE.

LEAVITT CONTENDS THAT IT SHOULD BE CONSIDERED A CRITICAL RESOURCE FOR NATIONAL DEFENSE FOR THIS EQUIPMENT. ARMED SERVICES PROCUREMENT REGULATION SEC. 3-216 (1974 ED.) IMPLEMENTS 10 U.S.C. SEC. 2304(A)(16) (1970) AND PROVIDES THAT THE SECRETARY SHALL DETERMINE WHEN IT IS IN THE INTEREST OF THE NATIONAL DEFENSE TO NEGOTIATE A CONTRACT WITH A PARTICULAR MANUFACTURER IN ORDER TO ASSURE THAT PROPERTY OR SERVICES WILL BE AVAILABLE TO THE GOVERNMENT DURING A NATIONAL EMERGENCY. ONLY THE VARIOUS SECRETARIES HAVE AUTHORITY TO MAKE THESE DETERMINATIONS. SINCE NO DETERMINATION WAS MADE, THE CONTRACTING OFFICER COULD NOT PROPERLY NEGOTIATE THE CONTRACT WITH LEAVITT UNDER ASPR SEC. 3-216 (1974 ED.).

LEAVITT QUESTIONS THE RESPONSIBILITY OF GREATER MARYLAND BECAUSE A PREAWARD SURVEY RECOMMENDING NO AWARD WAS MADE ON THE FIRM. HOWEVER, IT APPEARS FROM THE RECORD THAT GREATER MARYLAND SUBMITTED ADDITIONAL INFORMATION REGARDING THE NEGATIVE ASPECTS OF THE PREAWARD SURVEY AND UPON CONSIDERATION THE CONTRACTING OFFICER DETERMINED GREATER MARYLAND TO BE A RESPONSIBLE BIDDER IN ACCORDANCE WITH ASPR SEC. 1-904 (1974 ED.). THE DETERMINATION OF A PROPOSED CONTRACTOR'S RESPONSIBILITY IS LARGELY WITHIN THE DISCRETION OF THE CONTRACTING OFFICER. THE CONTRACTING ACTIVITY MUST HANDLE THE DAY-TO-DAY ADMINISTRATION OF THE CONTRACT AND BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY. IF, PURSUANT TO THE APPLICABLE REGULATIONS THE CONTRACTING OFFICER FINDS THE PROPOSED CONTRACTOR RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED EXCEPT ON THE BASIS OF FRAUD. SINCE NO FRAUD HAS BEEN ALLEGED OR DEMONSTRATED, WE MUST DECLINE TO FURTHER CONSIDER THE MATTER.

THE PROTEST REGARDING THE INADEQUACY OF THE SOLICITATION SPECIFICATIONS IS UNTIMELY. OUR BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2 (A)(1974), PROVIDE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.