B-181031, AUG 2, 1974

B-181031: Aug 2, 1974

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QUESTION CONCERNING QUALIFICATIONS OF PROSPECTIVE CONTRACTOR IS PRIMARILY FOR DETERMINATION BY PROCUREMENT OFFICERS CONCERNED. GAO WILL NOT OBJECT TO DETERMINATION MADE BY ADMINISTRATIVE AGENCY. 2. IS PROPER BASIS FOR RECOMMENDING NO AWARD. RELIANCE ON NEGATIVE PREAWARD SURVEY BY CONTRACTING OFFICER IN MAKING DETERMINATION OF NONRESPONSIBILITY IS NOT LEGALLY SUBJECT TO QUESTION BY GAO. N00104-74-B-0043 WAS ISSUED BY THE UNITED STATES NAVY SHIPS PARTS CONTROL CENTER. THE FOUR BIDS RECEIVED (LOWEST TO HIGHEST) WERE AS FOLLOWS: HOYT MANUFACTURING CORP. CISSELL MANUFACTURING COMPANY (CISSELL) AMERICAN LAUNDRY MACHINERY (AMERICAN) HOYT WAS REJECTED AS BEING NONRESPONSIVE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2(B) SINCE IT TOOK EXCEPTION TO THE REQUIREMENT FOR FURNISHING A FIRE EXTINGUISHER VALVE AND MANUAL TEMPERATURE CONTROLS AS REQUIRED BY SECTION "F" OF THE IFB.

B-181031, AUG 2, 1974

1. QUESTION CONCERNING QUALIFICATIONS OF PROSPECTIVE CONTRACTOR IS PRIMARILY FOR DETERMINATION BY PROCUREMENT OFFICERS CONCERNED, AND IN ABSENCE OF SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR DETERMINATION, GAO WILL NOT OBJECT TO DETERMINATION MADE BY ADMINISTRATIVE AGENCY. 2. FAILURE TO ARRANGE FOR FACILTIES FOR FIRST ARTICLE TESTING, WHEN REQUIRED TO DO SO BY SOLICITATION, IS PROPER BASIS FOR RECOMMENDING NO AWARD, AND RELIANCE ON NEGATIVE PREAWARD SURVEY BY CONTRACTING OFFICER IN MAKING DETERMINATION OF NONRESPONSIBILITY IS NOT LEGALLY SUBJECT TO QUESTION BY GAO.

KINGS POINT MACHINERY:

ON JULY 19, 1973, INVITATION FOR BIDS (IFB) NO. N00104-74-B-0043 WAS ISSUED BY THE UNITED STATES NAVY SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, FOR THE PURCHASE OF 21 LAUNDRY DRYING TUMBLERS. BID OPENING, AS AMENDED, TOOK PLACE ON AUGUST 24, 1973. THE FOUR BIDS RECEIVED (LOWEST TO HIGHEST) WERE AS FOLLOWS:

HOYT MANUFACTURING CORP. (HOYT)

KINGS POINT MACHINERY (KINGS POINT)

W.M. CISSELL MANUFACTURING COMPANY (CISSELL)

AMERICAN LAUNDRY MACHINERY (AMERICAN)

HOYT WAS REJECTED AS BEING NONRESPONSIVE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.2(B) SINCE IT TOOK EXCEPTION TO THE REQUIREMENT FOR FURNISHING A FIRE EXTINGUISHER VALVE AND MANUAL TEMPERATURE CONTROLS AS REQUIRED BY SECTION "F" OF THE IFB.

KINGS POINT, BEING THE NEXT RESPONSIVE BIDDER, A PREAWARD SURVEY WAS PERFORMED ON IT ON OCTOBER 10, 1973, BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), BURLINGAME, CALIFORNIA. THE PREAWARD SURVEY RECOMMENDED THAT NO AWARD BE MADE TO KINGS POINT DUE TO RATINGS OF UNSATISFACTORY IN BOTH PRODUCTION CAPABILITY AND ABILITY TO MEET REQUIRED DELIVERY SCHEDULE FACTORS. THE NEGATIVE PREAWARD SURVEY RESULTED FROM THE LACK OF PLANNED IN-HOUSE PRODUCTION AND AN INABILITY TO ESTABLISH A SOURCE FOR NECESSARY FIRST ARTICLE TESTING.

THE CONSIDERATION OF THE BIDS RESULTED IN ADMINISTRATIVE DELAYS EXTENDING TO MORE THAN THREE MONTHS. BECAUSE OF THESE DELAYS, A SECOND REQUEST FOR A PARTIAL, UPDATED SURVEY WAS REQUESTED ON JANUARY 23, 1974. THIS SECOND PREAWARD SURVEY REVEALED THE SAME UNSATISFACTORY FACTORS AT KINGS POINT, THUS RESULTING IN A SECOND NEGATIVE DETERMINATION. THIS SECOND SURVEY RECOMMENDED NO AWARD TO KINGS POINT BASED ON UNSATISFACTORY FACTORS OF QUALITY ASSURANCE CAPABILITY, PERFORMANCE RECORD, AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. AGAIN, THE NEGATIVE DETERMINATION WAS MADE PRIMARILY BECAUSE KINGS POINT HAD FAILED TO MAKE ARRANGEMENTS FOR FIRST ARTICLE TESTING.

GIVEN THIS SET OF CIRCUMSTANCES, A CERTIFICATE OF URGENCY WAS PREPARED ON FEBRUARY 25, 1974, IN SUPPORT OF A DETERMINATION THAT AWARD SHOULD BE MADE IMMEDIATELY WITHOUT REFERRAL TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR PROCESSING OF A CERTIFICATE OF COMPETENCY. SBA WAS APPRISED OF THE NECESSITY TO AWARD A CONTRACT ON FEBRUARY 27. THEREAFTER, CISSELL, BEING THE LOW RESPONSIVE AND RESPONSIBLE BIDDER, WAS AWARDED THE CONTRACT ON MARCH 4, 1974.

UPON NOTIFICATION OF BEING FOUND NONRESPONSIBLE, KINGS POINT PROTESTED TO OUR OFFICE. IT IS KINGS POINT'S CONTENTION THAT IT IS IN FACT A RESPONSIBLE CONTRACTOR, AND THAT ARRANGEMENTS COULD HAVE BEEN MADE AT ANY TIME FOR FIRST ARTICLE TESTING, HAD IT BEEN KNOWN THAT THESE ARRANGEMENTS WERE A PREREQUISITE FOR AWARD.

REGARDING THE FINDING OF NONRESPONSIBILITY, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE QUESTION AS TO THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR PRIMARILY IS FOR DETERMINATION BY THE PROCUREMENT OFFICERS CONCERNED AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION, WE ARE NOT REQUIRED TO OBJECT TO THE DETERMINATION MADE BY THE ADMINISTRATIVE AGENCY. B-177217, JUNE 26, 1973.

AS CONCERNS THE FIRST ARTICLE TEST REQUIREMENT, SECTION C-9 OF THE IFB SPECIFICALLY APPRISED ALL BIDDERS OF THE NEED FOR FIRST ARTICLE TESTING. KINGS POINT, AWARE OF THIS REQUIREMENT, INCLUDED IN ITS BID PRICE A $500 AMOUNT TO COVER ANY FIRST ARTICLE TESTING REQUIRED. HOWEVER, WHEN THE INITIAL PREAWARD SURVEY WAS CONDUCTED, KINGS POINT HAD NOT YET MADE ANY ARRANGEMENTS FOR FIRST ARTICLE TESTING EITHER AT ITS OWN OR OTHER FACILITIES.

WHEN KINGS POINT WAS AGAIN SURVEYED IN FEBRUARY OF 1974, STILL NO ARRANGEMENTS FOR FIRST ARTICLE TESTING HAD BEEN MADE. KINGS POINT'S RESPONSE WAS THAT IF FIRST ARTICLE TESTING WAS NECESSARY, IT WOULD BE SUBCONTRACTED TO A TESTING FACILITY. MOREOVER, THERE WAS NO AVAILABLE DOCUMENTATION AS TO THE PRESENCE OR ADEQUACY OF NECESSARY TEST EQUIPMENT AT THE PROPOSED TEST SUBCONTRACTOR. NOR COULD THE NAME OF A SPECIFIC INDIVIDUAL AT THE PROPOSED SUBCONTRACTOR BE PROVIDED TO VERIFY THESE ARRANGEMENTS.

ON THE BASIS OF OUR REVIEW OF THE RECORD AND CONSIDERATION OF THE INFORMATION RELIED UPON BY THE CONTRACTING OFFICER IN MAKING HIS DETERMINATION OF KINGS POINT'S LACK OF RESPONSIBILITY, WE FIND NO BASIS UPON WHICH TO LEGALLY OBJECT TO THE ACTION TAKEN.

ACCORDINGLY, THE PROTEST OF KINGS POINT IS DENIED.