B-99598, JUN 12, 1951

B-99598: Jun 12, 1951

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 18. FROM WHICH IT APPEARS THAT THE CONTRACTING OFFICER HAD DECIDED TO REJECT YOUR BIDS UNDER THE SUBJECT INVITATIONS FOR THE REASON THAT "IT WAS ADMINISTRATIVELY DETERMINED THAT YOU ARE NOT A RESPONSIBLE BIDDER WITHIN THE MEANING OF ASPR 2-406.1" AND YOUR ATTENTION WAS INVITED TO SAID PARAGRAPH OF THE ARMED SERVICES PROCUREMENT REGULATIONS AS WELL AS TO DETERMINATION OF THE CONTRACTING OFFICER AND STATE THAT "IN NOT ONE INSTANCE DID WE DEFAULT" AS TO THE GOVERNMENT CONTRACTS ENUMERATED IN THE LIST THEREOF ENCLOSED WITH YOUR LETTER. THE MATTER OF YOUR PROTEST WAS BROUGHT TO THE ATTENTION OF THE SECRETARY OF THE AIR FORCE WITH THE REQUEST THAT A COMPLETE REPORT THEREON BE FURNISHED THIS OFFICE.

B-99598, JUN 12, 1951

PRECIS-UNAVAILABLE

MANHATTAN LIGHTING EQUIPMENT COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 18, 1950, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BIDS FOR FURNISHING SUPPLIES TO THE DEPARTMENT OF THE AIR FORCE AS CALLED FOR UNDER INVITATIONS NOS. 33 -038-51-312, AND 33-038-51-432, ISSUED BY THE WRIGHT PATTERSON AIR FORCE BASE, DAYTON, OHIO, AND THE AWARD THEREOF BY THAT DEPARTMENT TO HIGHER BIDDERS.

WITH YOUR LETTER YOU SUBMIT COPIES OF CORRESPONDENCE REGARDING THE MATTER WITH HEADQUARTERS, AIR MATERIEL COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, FROM WHICH IT APPEARS THAT THE CONTRACTING OFFICER HAD DECIDED TO REJECT YOUR BIDS UNDER THE SUBJECT INVITATIONS FOR THE REASON THAT "IT WAS ADMINISTRATIVELY DETERMINED THAT YOU ARE NOT A RESPONSIBLE BIDDER WITHIN THE MEANING OF ASPR 2-406.1" AND YOUR ATTENTION WAS INVITED TO SAID PARAGRAPH OF THE ARMED SERVICES PROCUREMENT REGULATIONS AS WELL AS TO DETERMINATION OF THE CONTRACTING OFFICER AND STATE THAT "IN NOT ONE INSTANCE DID WE DEFAULT" AS TO THE GOVERNMENT CONTRACTS ENUMERATED IN THE LIST THEREOF ENCLOSED WITH YOUR LETTER.

BY OFFICE LETTER OF JANUARY 24, 1951, THE MATTER OF YOUR PROTEST WAS BROUGHT TO THE ATTENTION OF THE SECRETARY OF THE AIR FORCE WITH THE REQUEST THAT A COMPLETE REPORT THEREON BE FURNISHED THIS OFFICE. WITH THE REPLY OF THE DEPARTMENT OF THE AIR FORCE UNDER DATE OF MAY 1, 1951, THERE WAS ENCLOSED FIRST INDORSEMENT DATED FEBRUARY 14, 1951, FROM THE DIRECTOR, PROCUREMENT AND INDUSTRIAL PLANNING, HEADQUARTERS, WRIGHT PATTERSON AIR FORCE BASE, WHEREIN IT WAS POINTED OUT THAT THE ADMINISTRATIVE DETERMINATION TO REJECT YOUR BIDS UNDER THE AFORESAID INVITATIONS WAS BASED UPON PREVIOUS UNSATISFACTORY EXPERIENCE ENCOUNTERED BY THAT OFFICE WITH YOUR FIRM. INCLUDED IN THE FACTORS UPON WHICH THE DETERMINATION WAS BASED WAS (1) THE FACT THAT YOUR COMPANY HAD ATTEMPTED TO SUPPLY INFERIOR MATERIALS OR SUBSTITUTE MATERIALS FOR THOSE SPECIFIED IN VARIOUS CONTRACTS AND (2) THE FACT THAT YOUR FIRM HAD BEEN AND STILL IS DELINQUENT IN DELIVERY ON MANY CONTRACTS. WITH RESPECT TO SUBSTITUTION OF INFERIOR MATERIALS, TWO CASES ARE MENTIONED AS BEING REPRESENTATIVE CASES, ONE OF WHICH INVOLVED CONTRACT NO. AF 33(038)-12592, WHERE THE DELIVERY DATE WAS JUNE 22, 1950. UNDER THAT CONTRACT YOU REQUESTED, BY LETTER OF JUNE 17, 1950, THAT SUBSTITUTION OF EQUIPMENT BE PERMITTED AND YOU WERE INFORMED BY LETTER DATED JUNE 26, 1950, THAT SUBSTITUTION WOULD NOT BE PERMITTED. NEVERTHELESS, BY LETTER DATED JUNE 28, 1950, YOU AGAIN REQUESTED SUBSTITUTION BUT YOU WERE AGAIN ADVISED BY LETTER DATED JULY 3, 1950, THAT SUBSTITUTION WOULD NOT BE PERMITTED. ALSO, BY LETTER DATED JULY 8, 1950, YOU INQUIRED ABOUT SUBSTITUTION BUT YOU WERE AGAIN INFORMED BY LETTER DATED JULY 20, 1950, THAT IF YOU DID NOT DELIVER AS SOON AS POSSIBLE, THE GOVERNMENT WOULD EXERCISE ITS RIGHT UNDER THE DEFAULT CLAUSE OF THE CONTRACT, TO WHICH YOU REPLIED BY LETTER DATED JULY 24, 1950, THAT DELIVERY WOULD BE MADE WITHOUT FURTHER DELAY. THEN BY LETTER DATED AUGUST 15, 1950, YOU REQUESTED A CHANGE IN POINT OF INSPECTION. DELIVERY WAS FINALLY MADE ON SEPTEMBER 29, 1950. WHILE YOU STATED YOU NEVER DEFAULTED ON ANY CONTRACT, SEVERAL CONTRACTS LISTED BY YOU AS HAVING BEEN PERFORMED WITHOUT DEFAULT WERE EXAMINED AND AN EXAMINATION OF THE PERFORMANCE UNDER SOME CONTRACTS CHOSEN AT RANDOM DISCLOSES THAT AS TO THE CONTRACTS NOS. (33-096)50-11485 ARL AND (33-096)-50-12874, WHERE DELIVERY WAS DUE SEPTEMBER 21, 1950, AND AUGUST 10, 1950, RESPECTIVELY, ACTUAL DELIVERY HAD NOT BEEN COMPLETED AS OF FEBRUARY 12, 1951. IN ADDITION TO SEVERAL CONTRACTS NOT LISTED BY YOU, THE AFORESAID REPLY LISTS FOUR CONTRACTS AS TO WHICH YOU WERE DELINQUENT IN DELIVERY BY AS MUCH AS EIGHT MONTHS. ALSO, IT IS REPORTED THAT "THE MATERIAL FURNISHED WAS FOUND TO BE OF MARGINAL QUALITY IN MOST INSTANCES." IT IS REPORTED FURTHER THAT IT HAS BEEN SHOWN FROM PAST EXPERIENCE THAT IF ANY CONTRACTS WERE AWARDED YOUR FIRM, ONE OR MORE OF SEVERAL COURSES OF ACTION WOULD GENERALLY BE TAKEN, NAMELY, (1) ATTEMPT TO SUBSTITUTE OTHER MATERIALS OR DELIVER INFERIOR MATERIALS ON ANY CONTRACT AND (2) LITTLE REGARD WOULD BE GIVEN TO PROMISED DELIVERIES. IN A REPORT FROM HEADQUARTERS, EASTERN AIR PROCUREMENT DISTRICT, NEW YORK CITY, DATED APRIL 10, 1951, IT IS STATED THAT YOUR PERFORMANCE ON 21 CONTRACTS DURING THE PERIOD FROM JANUARY 1947 THROUGH SEPTEMBER 1950, WAS REVIEWED AND IT WOULD FOUND THAT DELIVERY UNDER 13 CONTRACTS WAS IN ACCORDANCE WITH CONTRACT REQUIREMENTS, WHILE AS TO 8 CONTRACTS, YOU WERE DELINQUENT IN DELIVERY RANGING IN TIME FROM ONE MONTH TO 10 MONTHS.

IT LONG HAS BEEN HELD BY THIS OFFICE AND THE COURTS THAT, IN CONNECTION WITH THE AWARD OF A CONTRACT AFTER ADVERTISING, THE ACCEPTANCE OF A LOW BID SUBMITTED BY ONE NOT QUALIFIED TO SATISFACTORILY PERFORM THE NECESSARY SERVICES IS NOT REQUIRED. 20 COMP. GEN. 862; O'BRIEN V. CARNEY, 6 F. SUPP. 761, 762. NO BIDDER ACQUIRES AN ABSOLUTE RIGHT TO AN AWARD OF PUBLIC BUSINESS BUT, RATHER, THE PUBLIC INTEREST IS FIRST FOR CONSIDERATION AND, THEREFORE, IT IS ONLY REQUIRED THAT THE CONTRACT BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER. HIBBS ET AL. V. ARENSBERG, 119 A. 727; 33 OP. ATTY. GEN. 453. IN DETERMINING WHETHER A BIDDER IS RESPONSIBLE THERE MUST BE TAKEN INTO ACCOUNT NOT MERELY THE PECUNIARY ABILITY OF THE BIDDER AND HIS BID PRICE, BUT THE BIDDER'S JUDGEMENT, SKILL AND INTEGRITY AS WELL AS HIS FITNESS AND ABILITY GENERALLY TO FULFILL THE CONTRACT REQUIREMENTS. SEE 10 COMP. GEN. 314, 316; 16 ID. 708; 20 ID. 862; 21 ID. 56, 58; 26 ID. 676; HIBBS ET AL. V. ARENSBERG, AND O'BRIEN V. CARNEY, SUPRA; PICONE V. CITY OF NEW YORK, 29 N.Y.S. 2D 539; KELLING ET AL. V. EDWARDS, ET AL., 116 MINN. 484, 134 N.W. 221; KOICH V. CVAR, 110 P. 2D 964.

THE EVIDENCE FURNISHED BY THE DEPARTMENT OF THE AIR FORCE IS NOT SUCH AS TO WARRANT THE CONCLUSION THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BIDS UNDER THE TWO INVITATIONS HERE INVOLVED WAS IMPROPER.