B-149890, NOV. 21, 1962

B-149890: Nov 21, 1962

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YOU HAVE PROTESTED AGAINST THE PROPOSED AWARD TO ANOTHER BIDDER OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. 000 UNITS WAS TO BE AWARDED PURSUANT TO COMPETITIVE BIDDING WITH AN ADDITIONAL QUANTITY OF 5. FIVE BIDS WERE RECEIVED BY THE SCHEDULED TIME FOR BID OPENING. THE LOW BID WAS FOUND TO BE THAT SUBMITTED BY SEMCO SALES AND SERVICE. WE HAVE BEEN ADVISED BY THE FEDERAL SUPPLY SERVICE THAT AN INVESTIGATION WAS MADE OF THE LOW BIDDER'S PLANT FACILITIES AND IT WAS DETERMINED THAT THE FIRM WAS CAPABLE OF PRODUCING THE QUALITY AND QUANTITY OF CLIPBOARDS IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION. IT IS YOUR POSITION. THAT IN VIEW OF THE TIME REQUIRED FOR TOOLING UP AND OTHER FACTORS IT IS IMPOSSIBLE FOR THE LOW BIDDER TO MEET THE DELIVERY TERMS STATED IN ITS BID.

B-149890, NOV. 21, 1962

TO FELSENTHAL INSTRUMENTS COMPANY:

BY TELEGRAM OF SEPTEMBER 12, 1962, AND SUBSEQUENT CORRESPONDENCE, YOU HAVE PROTESTED AGAINST THE PROPOSED AWARD TO ANOTHER BIDDER OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. FNSO-9P-1686, ISSUED JULY 25, 1962, BY THE FEDERAL SUPPLY SERVICE, FOR THE PROCUREMENT OF A QUANTITY OF CLIPBOARDS. UNDER THE TERMS OF THE INVITATION A CONTRACT FOR 15,000 UNITS WAS TO BE AWARDED PURSUANT TO COMPETITIVE BIDDING WITH AN ADDITIONAL QUANTITY OF 5,000 SET ASIDE FOR AWARD BY NEGOTIATION TO LABOR SURPLUS AREA OR SMALL BUSINESS CONCERNS.

FIVE BIDS WERE RECEIVED BY THE SCHEDULED TIME FOR BID OPENING, AS AMENDED, AUGUST 20, 1962. THE LOW BID WAS FOUND TO BE THAT SUBMITTED BY SEMCO SALES AND SERVICE, INCORPORATED, AT A UNIT PRICE OF $8.19 NET. YOUR FIRM SUBMITTED A BID OF $9.49 PER UNIT WITH A PROMPT PAYMENT DISCOUNT OF 1/2 OF 1 PERCENT FOR PAYMENT WITHIN 20 DAYS. WE HAVE BEEN ADVISED BY THE FEDERAL SUPPLY SERVICE THAT AN INVESTIGATION WAS MADE OF THE LOW BIDDER'S PLANT FACILITIES AND IT WAS DETERMINED THAT THE FIRM WAS CAPABLE OF PRODUCING THE QUALITY AND QUANTITY OF CLIPBOARDS IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE INVITATION. HOWEVER, AWARD TO THAT FIRM HAS BEEN WITHHELD PENDING OUR DISPOSITION OF YOUR PROTEST.

YOU PROTEST AGAINST THE AWARD OF THE QUANTITY OF 15,000 UNITS UNDER THE ADVERTISED PORTION TO SEMCO BECAUSE, YOU CONTEND, THE FIRM CANNOT MEET THE DELIVERY REQUIREMENTS STATED IN ITS BID, .E., TOTAL DELIVERY WITHIN 80 DAYS AFTER NOTICE OF AWARD. IN THIS CONNECTION A LETTER OF SEPTEMBER 20, 1962, WITH ENCLOSURES, FROM YOUR ATTORNEYS, INCLUDED AFFIDAVITS FROM TOOL COMPANIES INDICATING THAT IT WOULD TAKE A SUBSTANTIAL PERIOD OF TIME TO TOOL UP FOR THE CONTRACT. IT IS YOUR POSITION, EXPRESSED AT PAGE 4 OF YOUR LETTER OF SEPTEMBER 13, THAT IN VIEW OF THE TIME REQUIRED FOR TOOLING UP AND OTHER FACTORS IT IS IMPOSSIBLE FOR THE LOW BIDDER TO MEET THE DELIVERY TERMS STATED IN ITS BID. BECAUSE OF YOUR PROTEST THE CAPABILITIES AND PLANT FACILITIES OF THE LOW BIDDER WERE AGAIN INVESTIGATED BY THE FEDERAL SUPPLY SERVICE, AND THE ORIGINAL CONCLUSION THAT SEMCO WAS FULLY QUALIFIED WAS AFFIRMED.

AWARD PURSUANT TO FORMAL ADVERTISING MAY BE MADE ONLY TO THAT RESPONSIBLE BIDDER WHO HAS SUBMITTED THE LOWEST ACCEPTABLE BID. IT HAS LONG BEEN RECOGNIZED THAT THE BIDDER'S RESPONSIBILITY IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICE. 38 COMP. GEN. 131; 33 COMP. GEN. 549. THE RECORD PRESENTED IN THIS CASE ESTABLISHES THAT THE DETERMINATIONS AS TO THE RESPONSIBILITY OF THE LOW BIDDER WERE MADE BY THE CONTRACTING AGENCY AFTER THOROUGH CONSIDERATION OF THE BIDDER'S QUALIFICATIONS. IN THE ABSENCE OF EVIDENCE OF CAPRICIOUS OR ARBITRARY ACTION, WHICH IN THIS INSTANCE HAS NOT BEEN ALLEGED, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION THAT THE SUCCESSFUL BIDDER IS CAPABLE OF PERFORMING IN ACCORDANCE WITH THE TERMS OF HIS BID AND THE INVITATION.

WITH RESPECT TO THE SET-ASIDE, YOU CONTEND THAT SEMCO IS NOT ELIGIBLE FOR PARTICIPATION IN THE NEGOTIATION BECAUSE IT FAILED TO SUBMIT A QUOTE ON THAT PORTION OF THE PROCUREMENT. WHILE THE INVITATION IS SO ARRANGED THAT THE IMPRESSION MAY BE OBTAINED THAT A QUOTE OR BID WAS REQUIRED ON THE SET -ASIDE, THERE IS IN FACT NO SUCH REQUIREMENT, AND NO PURPOSE WOULD BE SERVED BY THE INCLUSION OF SUCH A BID PRICE. THE TERMS OF THE INVITATION AND THE APPLICABLE REGULATIONS GOVERNING THOSE TERMS PROVIDE THAT ELIGIBILITY FOR PARTICIPATION IN THE SET-ASIDE MUST BE BASED ON RESPONSIBILITY, QUALIFICATION EITHER AS A LABOR SURPLUS AREA CONCERN OR A SMALL BUSINESS CONCERN OR BOTH, AND A RESPONSIVE BID ON THE ADVERTISED PORTION WITHIN 120 PERCENT OF THE SUCCESSFUL BID. IT IS FURTHER PROVIDED THAT AWARD OF THE SET-ASIDE WILL BE MADE AT THE HIGHEST PRICE AWARDED ON THE NON-SET-ASIDE. THUS THE INCLUSION OF A QUOTE ON THE SET-ASIDE PORTION WOULD HAVE NO BEARING ON THE BIDDER'S ELIGIBILITY FOR PARTICIPATION IN THE NEGOTIATIONS, NOR WOULD IT AFFECT THE PRICE AT WHICH THE SET-ASIDE MIGHT BE OFFERED TO THE BIDDER. IN SUMMARY, A BID ON THE SET-ASIDE PORTION WOULD BE TOTALLY WITHOUT EFFECT.

IN ACCORDANCE WITH THE FOREGOING WE FIND NO BASIS TO QUESTION THE VALIDITY OF THE PROPOSED AWARD.

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