B-154255, SEP. 3, 1964

B-154255, SEP. 3, 1964

TO CAN-TITE RUBBER CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED AUGUST 12, 1964, PROTESTING THE PROPOSED AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. AMC (A/-18-035-64-511, ISSUED BY THE CONTRACTING OFFICER,UNITED STATES ARMY, EDGEWOOD ARSENAL, MARYLAND.

THIS INVITATION WAS ISSUED FOR THE PROCUREMENT OF THREE ITEMS OF INCENDIARY, EMERGENCY, DOCUMENT DESTROYERS IN ACCORDANCE WITH THE LISTED DRAWINGS AND SPECIFICATIONS. ITEM 1 WAS FOR 3,811 UNITS F.O.B. ORIGIN. ITEM 2 WAS FOR 415 UNITS F.O.B. ORIGIN AND AN ALTERNATE OF 415 UNITS F.O.B. UNITED STATES WEAPONS STATION, YORKTOWN, VIRGINIA. ITEM 3 WAS FOR 415 UNITS F.O.B. ORIGIN AND AN ALTERNATE OF 415 UNITS F.O.B. UNITED STATES NAVY WEAPON STATION, SEAL BEACH, CALIFORNIA.

BIDS WERE OPENED ON MARCH 23, 1964. MERCURY CHEMICAL COMPANY, INC., 4619 SECOND AVENUE, BROOKLYN 32, NEW YORK, SUBMITTED THE LOW BID QUOTING PRICES OF $44.40 PER UNIT FOR ITEM 1; $44.40 PER UNIT F.O.B. ORIGIN AND $48.90 PER UNIT F.O.B. DESTINATION UNDER ITEM 2; $44.40 PER UNIT F.O.B. ORIGIN AND $54.90 PER UNIT F.O.B. DESTINATION UNDER ITEM 3. YOUR BID WAS SECOND LOWEST QUOTING PRICES OF $48.64 PER UNIT UNDER ITEM 1; $48.69 PER UNIT F.O.B. ORIGIN AND $51.79 PER UNIT F.O.B. DESTINATION UNDER ITEM 2; $48.69 PER UNIT F.O.B. ORIGIN AND $60.75 PER UNIT F.O.B. DESTINATION UNDER ITEM 3.

AFTER BID OPENING, IT WAS CONCLUDED IN A PRE-AWARD SURVEY OF MERCURY CHEMICAL COMPANY, DATED APRIL 16, 1964, BY THE NEW YORK PROCUREMENT DISTRICT, THAT MERCURY CHEMICAL WAS NOT A RESPONSIBLE BIDDER. ON APRIL 22, 1964, THE MATTER WAS SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION FOR ISSUANCE OF A CERTIFICATE OF COMPETENCY TO MERCURY CHEMICAL AND ON MAY 12, 1964, SBA ADVISED EDGEWOOD ARSENAL THAT SBA HAD DECLINED TO ISSUE A COC TO MERCURY CHEMICAL.

ON MAY 19, 1964, MERCURY CHEMICAL ADVISED THAT IT HAD OBTAINED NEW CAPITAL OF $25,000; THAT IT HAD $25,000 ON DEPOSIT WITH THE COMMERCIAL BANK OF NORTH AMERICA, THROUGH ITS SUBCONTRACTOR, PYRONICS CORPORATION; AND THAT IT SHOULD THEREFORE BE CONSIDERED A RESPONSIBLE BIDDER UNDER THIS INVITATION. IN VIEW OF THE ADDITIONAL INFORMATION FURNISHED BY MERCURY CHEMICAL COMPANY, OUR OFFICE SUGGESTED THAT THE DEPARTMENT OF THE ARMY AND SBA IF NECESSARY, RECONSIDER THE DETERMINATION REGARDING MERCURY CHEMICAL COMPANY'S RESPONSIBILITY. ON AUGUST 21, 1964, WE WERE ADVISED BY THE ARMY THAT AFTER CONSIDERATION OF ADDITIONAL INFORMATION FURNISHED BY THE NEW YORK PROCUREMENT DISTRICT, MERCURY CHEMICAL WAS DETERMINED TO BE A RESPONSIBLE BIDDER UNDER THIS INVITATION PURSUANT TO THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION SECS. 1-902 AND 1-903. WE ARE ADVISED THAT AN AWARD UNDER THIS INVITATION HAS NOT BEEN MADE.

IN YOUR PROTEST YOU CONTEND IN EFFECT THAT SINCE MERCURY CHEMICAL WAS INITIALLY DETERMINED TO BE NON-RESPONSIBLE THIS DETERMINATION CANNOT NOW BE CHANGED. THE DEPARTMENT OF THE ARMY HAS DETERMINED THAT MERCURY CHEMICAL IS A RESPONSIBLE BIDDER BASED ON ADDITIONAL INFORMATION FURNISHED BY THE NEW YORK PROCUREMENT DISTRICT. IT IS WELL ESTABLISHED THAT INFORMATION RELATING TO THE RESPONSIBILITY OF BIDDERS IS SOLELY FOR THE BENEFIT OF THE GOVERNMENT IN DETERMINING SUCH RESPONSIBILITY AND CAN PROPERLY BE FURNISHED AFTER BID OPENING. SEE 39 COMP. GEN. 655, 658. MOREOVER, DETERMINATIONS REGARDING THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS ARE PRIMARILY THE FUNCTION OF THE PROCURING ACTIVITY AND WE WILL NOT QUESTION SUCH DETERMINATIONS UNLESS, CONTRARY TO THE PRESENT CASE, SUCH DETERMINATIONS ARE SHOWN TO BE ARBITRARY OR CAPRICIOUS. SEE 37 COMP. GEN. 430, 435.

IN THESE CIRCUMSTANCES WE FIND NO BASIS TO QUESTION THE ARMY'S DETERMINATION THAT MERCURY CHEMICAL IS A RESPONSIBLE BIDDER, AND YOUR PROTEST IS THEREFORE DENIED.