B-154882, FEB. 3, 1965

B-154882, FEB. 3, 1965

TO THE HICKS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 13, 1964, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 14, 1964, DENYING YOUR PROTEST AGAINST AWARD OF A CONTRACT TO EMERSON ELECTRIC COMPANY BY RED STONE ARSENAL UNDER REQUEST FOR PROPOSAL AMC (Z/-01-021 64-1031.

THE GENERAL TENOR OF YOUR LETTER IS TO THE EFFECT THAT IN REACHING OUR DECISION WE FAILED TO CONSIDER ALL THE FACTS AND ACCEPTED SUCH FACTS AS WERE CONSIDERED WITHOUT VERIFICATION. CONTRARY TO YOUR BELIEF, WE DULY CONSIDERED AND WEIGHED ALL THE FACTS PRESENTED BOTH BY YOUR FIRM AND BY THE ARMY. SINCE OUR OFFICE IS NEITHER EQUIPPED NOR AUTHORIZED BY LAW TO CONDUCT ADVERSARY PROCEEDINGS, OUR DECISIONS ARE NECESSARILY BASED UPON THE WRITTEN RECORD PRESENTED BY THE PARTIES TO THE DISPUTE. IT IS THE LONG-ESTABLISHED RULE OF THIS OFFICE TO PRESUME THE CORRECTNESS OF THE ADMINISTRATIVE REPORT, UNLESS SUCH PRESUMPTION IS REBUTTED BY SUBSTANTIAL EVIDENCE. THE FACTS REPORTED IN OUR DECISION WERE A MATTER OF RECORD AT THE TIME THE CONTRACTING OFFICER WAS CONSIDERING YOUR RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR FOR THIS PARTICULAR PROCUREMENT AND, ON THE BASIS THEREOF, HIS DETERMINATION WAS NEGATIVE. WHILE YOU SUBMITTED CERTAIN INFORMATION CONCERNING THE RECORD OF YOUR COMPANY, MUCH OF WHICH IS COMMENDABLE, IT WAS NOT, IN OUR OPINION, SUFFICIENT TO REBUT THE FACTS REPORTED AS THE BASIS FOR THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY.

YOUR REQUEST FOR RECONSIDERATION OF OUR DECISION, AND THE MATTERS SET FORTH IN YOUR LETTER MAKING SUCH REQUEST, HAVE PROMPTED US TO REVIEW THE ENTIRE RECORD AS PREVIOUSLY SUBMITTED AND, IN ADDITION, OBTAIN FURTHER INFORMATION FROM THE DEPARTMENT OF THE ARMY. WHILE IT APPEARS FROM THE RECORD, AS YOU ALLEGE, THAT THERE WERE SOME EXCUSABLE DELAYS, SUCH AS THE EXPLOSION OF THE HEAT TREAT FURNACE, IN YOUR MEETING THE DELIVERY SCHEDULE REQUIRED BY CONTRACT NO. AMC-DA-01-009-AMC-1042 (Z), THE RECORD ALSO INDICATES THAT A MAJOR CAUSE FOR YOUR DELINQUENCY WAS YOUR FAILURE TO PRODUCE A QUALITY PRODUCT WHICH RESULTED IN WORK STOPPAGES BECAUSE GOVERNMENT INSPECTION PERSONNEL AT YOUR PLANT WERE UNABLE TO ACCEPT THE FINISHED PRODUCT, AND ALSO RESULTED IN UNITS BEING RETURNED FOR REWORK AFTER THEY HAD BEEN DELIVERED. ASIDE FROM DEVIATIONS IN THE REQUIRED DELIVERY SCHEDULE, YOUR FAILURE TO PRODUCE A QUALITY PRODUCT AND THE RESULTANT ADDITIONAL COST TO THE GOVERNMENT, AS IS MORE FULLY SET FORTH IN OUR EARLIER DECISION, WOULD IN AND OF ITSELF JUSTIFY THE CONCLUSION THAT YOUR PERFORMANCE WAS UNSATISFACTORY UNDER THE SUBJECT CONTRACT.

SEVERAL OTHER POINTS MADE IN YOUR LETTER OF NOVEMBER 13, 1964, HAVE BEEN GIVEN FULL CONSIDERATION. WITH REFERENCE TO YOUR STATEMENT THAT OUR DECISION INCORRECTLY REPORTED THAT THE LOADING PLANT AT RADFORD, VIRGINIA, CLOSED DUE TO YOUR FAILURE TO DELIVER UNITS, PLEASE NOTE THAT WE SAID "LOADING OPERATIONS ... FOR THESE ROCKET MOTORS (740 ROCKET MOTORS REFERRED TO IN THE PRECEDING SENTENCE) HAD TO BE SUSPENDED.' YOUR CONTENTION THAT THE LOADING PLANT AT RADFORD DID NOT CLOSE COMPLETELY IS CONFIRMED BY THE DEPARTMENT OF THE ARMY.

OUR DECISION DID NOT STATE THAT THERE HAD BEEN AN "EXCESSIVE TURN OVER OF TOP MANAGEMENT," AS YOU SAY, BUT POINTED OUT ON PAGE 7 THAT IN SPITE OF A CHANGE IN MANAGEMENT, AMONG OTHER THINGS, THE RECORD DID NOT INDICATE ASSURANCE OF SATISFACTORY PERFORMANCE UNDER CONTRACT 1042. IT IS ALSO ACKNOWLEDGED, AS YOU CONTEND, THAT "CONSIDERABLE PROGRESS" HAD BEEN MADE UNDER THE NEW MANAGEMENT IN CORRECTING DEFICIENCIES NOTED IN EARLIER EVALUATION. CONVERSELY, IT CONTINUES TO BE THE POSITION OF THE CONTRACTING AGENCY THAT THE GOVERNMENT DID NOT CEASE INSPECTION COVERAGE UNDER CONTRACTS 1042 AND 21 (Z), AND THAT YOUR FAILURE TO MEET DELIVERY REQUIREMENTS WAS DUE TO YOUR FAILURE TO OFFER MATERIAL OF AN ACCEPTABLE QUALITY.

AS TO YOUR ASSERTION THAT THE AWARD OF A CONTRACT TO YOU ON OCTOBER 27, 1964, TO PRODUCE NIKE MOTORS PROVES YOU ARE RESPONSIBLE, WE AGREE WITH THIS PROPOSITION INSOFAR AS THAT PARTICULAR PROCUREMENT IS CONCERNED. HOWEVER, WE CANNOT AGREE THAT THIS PROVES YOU WERE A RESPONSIBLE PROSPECTIVE CONTRACTOR SOME THREE OR FOUR MONTHS EARLIER, WHEN BOTH YOUR CIRCUMSTANCES AND THE PROCUREMENT WERE DIFFERENT. RESPONSIBILITY MUST NECESSARILY BE DETERMINED AS NEAR THE DATE OF AWARD AS POSSIBLE, IN LIGHT OF ALL THE FACTS AND CIRCUMSTANCES AT THAT TIME AS THEY RELATE TO THAT PARTICULAR PROCUREMENT.

OUR DECISION OF OCTOBER 14, 1964, WAS BASED UPON THE ENTIRE RECORD BEFORE US, AND WENT NO FURTHER THAN TO APPROVE THE ACTION TAKEN REGARDING THE QUESTION OF YOUR RESPONSIBILITY FOR THE PROCUREMENT THEN UNDER CONSIDERATION. SINCE WE FEEL THAT NO INFORMATION HAS BEEN SUBMITTED WHICH WOULD EITHER COMPEL OR SUPPORT A DIFFERENT HOLDING, OUR DECISION OF OCTOBER 14, 1964, MUST BE SUSTAINED.