B-182038, DEC 23, 1974

B-182038, DEC 23, 1974

1. REVIEW OF RECORD CONCERNING DETERMINATION OF OFFEROR'S NONRESPONSIBILITY TO PERFORM CONTRACT INDICATES THAT CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY ON BASIS OF INFORMATION BEFORE HIM, INCLUDING A NEGATIVE PREAWARD SURVEY, IS NOT UNREASONABLE. 2. FIRM REJECTED AS NONRESPONSIBLE FOR IMMEDIATE PROCUREMENT DOES NOT REFLECT UPON FIRM'S ELIGIBILITY FOR FUTURE CONTRACTS, SINCE DETERMINATIONS OF RESPONSIBILITY ARE REQUIRED TO BE MADE ON "AS CURRENT A BASIS AS FEASIBLE WITH RELATION TO THE DATE OF CONTRACT AWARD." SEE ASPR SEC. 1- 905.2 (1974) ED.).

WESTERN ORDNANCE, INC.:

ON JUNE 19, 1974, REQUEST FOR PROPOSALS (RFP) NO. N66314-74-R-2786, A TOTAL SMALL BUSINESS SET-ASIDE, WAS ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE (NRPO), OAKLAND, CALIFORNIA. THE RFP CALLED FOR SERVICES AND MATERIAL TO DISASSEMBLE, CLEAN, REPAIR, REASSEMBLE AND TEST ROTARY HYDRAULIC ACTUATORS.

THREE PROPOSALS WERE RECEIVED BY THE JULY 3, 1974, CLOSING DATE, AND AFTER NEGOTIATIONS WERE CONDUCTED WITH ALL OFFERORS, IT WAS DETERMINED THAT WESTERN ORDNANCE, SAN LEANDRO, CALIFORNIA, SUBMITTED THE LOW OFFER IN THE AMOUNT OF $21,175.

IT IS REPORTED THAT SINCE THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, HAD NO RECORD OF RECENT PURCHASES FROM WESTERN ORDNANCE, A TELEPHONIC INQUIRY WAS MADE TO THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) IN SAN FRANCISCO REGARDING WESTERN'S RESPONSIBILITY. THE PREAWARD MONITOR OF DCASR RECOMMENDED THAT A PREAWARD SURVEY BE MADE SINCE DCASR HAD NO RECORD OF WESTERN ORDNANCE AT THE SAN LEANDRO, CALIFORNIA, LOCATION. ACCORDINGLY, THE DCASR IN SAN FRANCISCO WAS REQUESTED TO CONDUCT A PREAWARD SURVEY OF THE FIRM. THE PREAWARD SURVEY REPORT DATED JULY 30, 1974, RECOMMENDED "NO AWARD" TO WESTERN ORDNANCE DUE TO UNSATISFACT3RY FINDINGS ON THE FOLLOWING FACTORS: "PRODUCTION CAPABILITY, PLANT FACILITIES AND EQUIPMENT, PURCHASING AND SUBCONTRACTING, QUALITY ASSURANCE CAPABILITY, LABOR RESOURCES, ABILITY TO MEET REQUIRED SCHEDULES AND INADEQUATE INSPECTION SYSTEM." IN VIEW OF THE NEGATIVE PREAWARD SURVEY, HE CONTRACTING OFFICER DETERMINED WESTERN ORDNANCE TO BE NONRESPONSIBLE. IT IS REPORTED THAT DUE TO THE URGENCY OF THE PROCUREMENT, THE CONTRACTING OFFICER WAIVED REFERRAL TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY PURSUANT TO ASPR SEC. 1-705.4(C)(IV) (1974 ED.).

BY LETTER DATED AUGUST 9, 1974, THE CONTRACTING OFFICER ADVISED WESTERN ORDNANCE THAT ITS PROPOSAL WAS NOT ACCEPTED AND THAT AWARD WAS MADE TO HYDRAULIC SERVICE, INC., FOR $43,250. THE LETTER FURTHER STATED WHY WESTERN ORDNANCE'S FIRM WAS DETERMINED TO BE NONRESPONSIBLE. WESTERN ORDNANCE FILED A PROTEST WITH THIS OFFICE BY LETTER DATED AUGUST 13, 1974, IN WHICH THE FINDINGS OF THE PREAWARD SURVEY WERE CHALLENGED. DCASR, SAN FRANCISCO, REVIEWED THE ALLEGATIONS RAISED IN WESTERN ORDNANCE'S AUGUST 13 LETTER AND AFTER STATING ITS BASES FOR REJECTING THEM, DCASR REAFFIRMED ITS "NO AWARD" RECOMMENDATION. WESTERN ORDNANCE HAS BEEN FURNISHED A COPY OF THE PERTINENT PORTIONS OF THE ADMINISTRATIVE REPORT AND HAS SUBMITTED COMMENTS THEREON.

OUR OFFICE HAS CONSISTENTLY HELD THAT THE QUESTION OF A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY IS A MATTER FOR DETERMINATION BY THE CONTRACTING OFFICER INVOLVED. SEE MATTER OF RIOCAR, B-180361, MAY 23, 1974, AND CASES CITED THEREIN. ONE OF THE IMPORTANT ELEMENTS OF A BIDDER'S RESPONSIBILITY IS THE CAPABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN THE SOLICITATION, WHICH INCLUDES SUCH FACTORS AS EQUIPMENT AND PERSONNEL. RESOLVING THIS QUESTION OF FACT NECESSARILY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF JUDGMENT AND DISCRETION BY THE CONTRACTING OFFICER. IT IS NOT THE FUNCTION OF OUR OFFICE TO DETERMINE WHETHER WESTERN ORDNANCE HAS DEMONSTRATED A CAPABILITY TO PERFORM THIS CONTRACT; RATHER, OUR FUNCTION IS TO REVIEW THE RECORD TO DETERMINE WHETHER THE CONTRACTING OFFICER'S EXERCISE OF JUDGMENT AND DISCRETION IN FINDING WESTERN ORDNANCE NONRESPONSIBLE WAS REASONABLE UNDER THE CIRCUMSTANCES. IN THIS REGARD, WE HAVE STATED THAT A CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY OR NONRESPONSIBILITY WILL NOT BE DISTURBED ABSENT A REASONABLE BASIS THEREFOR. SEE MATTER OF LEASCO INFORMATION PRODUCTS, INC. ET AL., B 180460, JUNE 10, 1974, 53 COMP. GEN. ; 51 COMP. GEN. 233 (1971).

WE HAVE REVIEWED THE RECORD SUPPORTING THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY, AS SUPPLEMENTED BY CORRESPONDENCE FROM WESTERN ORDNANCE, AND WE HAVE CONCLUDED FROM THE INFORMATION THAT THE CONTRACTING OFFICER HAD BEFORE HIM THAT HIS DETERMINATION IN THIS REGARD REPRESENTED A REASONABLE EXERCISE OF ADMINISTRATIVE DISCRETION. HOWEVER, BY LETTER DATED OCTOBER 21, 1974, WESTERN ORDNANCE INC. (NOW KNOWN AS WESTERN ORDNANCE & HYDRAULICS), SUBMITTED ITS COMMENTS TO OUR OFFICE REGARDING THE NAVY'S REPORT, INCLUDING, AMONG OTHER THINGS, EVIDENCE OF ITS PERFORMANCE CAPABILITY. A COPY OF THE OCTOBER 21 LETTER IS BEING FORWARDED TO THE NAVY FOR ITS CONSIDERATION IN FUTURE PROCUREMENTS OF THIS NATURE. THE FACT THAT WESTERN ORDNANCE WAS DETERMINED TO BE NONRESPONSIBLE FOR THE IMMEDIATE PROCUREMENT DOES NOT REFLECT IN ANY WAY UPON THE FIRM'S ELIGIBILITY FOR FUTURE CONTRACTS, SINCE DETERMINATIONS OF RESPONSIBILITY ARE REQUIRED TO BE MADE ON "AS CURRENT BASIS AS FEASIBLE WITH RELATION TO THE DATE OF CONTRACT AWARD." SEE ASPR SEC. 1-905.2 (1974 ED.).

ACCORDINGLY, THE PROTEST IS DENIED.