B-132736, AUG. 23, 1957

B-132736, AUG. 23, 1957

TO WUNDERLICH RADIO COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1957, PROTESTING YOUR FAILURE TO RECEIVE AN AWARD OF A CONTRACT AS THE LOW BIDDER IN RESPONSE TO REQUEST FOR PROPOSALS NO. 01-601-57-157, ISSUED BY THE MOBILEAIR MATERIEL AREA, BROOKLEY AIR FORCE BASE, ALABAMA, FOR FURNISHING ALL LABOR AND MATERIALS NECESSARY TO DESIGN AND INSTALL A COMPLETE COMMUNICATIONS SYSTEM FOR THE GULF MISSILE TESTING RANGE.

YOUR PROTEST IS BASED ON THE CONTENTIONS THAT YOU WERE THE LOW BIDDER; THAT YOU COMPLIED WITH ALL REQUIREMENTS OF THE BID; AND THAT YOU ARE FINANCIALLY AND TECHNICALLY ABLE TO PERFORM THE CONTRACT.

PERTINENT PROVISIONS OF THE REQUEST FOR PROPOSALS ARE AS FOLLOWS:

"C. STATEMENT OF WORK

"IT IS REQUESTED THAT A FIRM STATEMENT OF WORK BE SUBMITTED WITH YOUR COST ESTIMATE. THE STATEMENT OF WORK SHOULD BE IN SUFFICIENT DETAIL TO ADEQUATELY DESCRIBE EACH ELEMENT OF TASK. IT IS SUGGESTED THAT THE CONTRACTOR COVER EACH PHASE OF WORK IN SUCH A MANNER AS TO CLEARLY DEFINE AND EXPLAIN ANTICIPATED DESIGN CRITERIA, ENGINEERING TASK, DIRECT LABOR REQUIREMENTS AND OTHER PERTINENT AREAS OF EFFORT. IN NARRATIVE FORM, FORECAST OF PROBLEM AREAS, EXTENT OF SAME AND SUGGESTED SOLUTIONS.

"D. IT IS ALSO REQUIRED, IN ORDER TO PROPERLY EVALUATE YOUR FIRM'S CAPABILITIES TO PERFORM THE WORK INVOLVED, THAT YOU INCLUDE WITH YOUR PROPOSALS SUFFICIENT DATA OR OTHER EVIDENCE ESTABLISHING SUCH CAPABILITIES AND INCLUDING CITATIONS OF ALL SPECIFIC DEPARTMENT OF DEFENSE PROJECTS OF THIS NATURE WHICH YOUR FIRM HAS ACCOMPLISHED IN THE PAST.'

IN RESPONSE TO OUR INQUIRY CONCERNING THE MATTER, THE SECRETARY OF THE AIR FORCE REPORTS THAT EVALUATION OF THE TECHNICAL DATA SUBMITTED BY BIDDERS WAS COMMENCED ON JUNE 3 AND PROCEEDED UNTIL JULY 1, 1957, AND THAT YOUR ORIGINAL PROPOSAL IN THE FIXED PRICE AMOUNT OF $1,850,000 WAS IN THE FORM OF A LETTER DATED MAY 30, 1957, WHICH CONTAINED NO TECHNICAL DATA THAT COULD BE USED BY AIR FORCE ENGINEERS TO DETERMINE THAT THE SYSTEM PROPOSED WOULD MEET THE REQUIREMENTS. IT IS REPORTED FURTHER THAT YOU WERE ADVISED OF THE INSUFFICIENCY OF YOUR TECHNICAL DATA BY TELEPHONE ON JULY 5, 1957, AND WERE ADVISED BY WIRE ON THE SAME DATE OF THE DATA REQUIRED. YOU FURNISHED SOME TECHNICAL DATA ON JULY 6, 1957, WHICH IS REPORTED AS BEING SO INSUFFICIENT AS TO ALLOW EVEN A CURSORY EVALUATION. THE RECORD SHOWS THAT FROM JULY 12 TO 17, 1957, SEVERAL UNSUCCESSFUL ATTEMPTS WERE MADE TO CONTACT YOU AND ADVISE YOU THAT THE DATA FURNISHED WAS INSUFFICIENT. A TELEPHONE CONVERSATION BETWEEN YOU AND TWO REPRESENTATIVES OF THE AIR FORCE ON JULY 18 FAILED TO RESOLVE THE MATTER. ON JULY 26, 1957, YOU WERE ADVISED BY LETTER THAT THE REQUEST FOR PROPOSALS HAD NOT BEEN CANCELLED, AS YOU MISTAKENLY BELIEVED, AND THAT NEGOTIATIONS WOULD BE CONDUCTED WITH ANOTHER BIDDER DUE TO YOUR FAILURE TO FURNISH THE REQUIRED TECHNICAL INFORMATION.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE CONTENTIONS URGED IN SUPPORT OF YOUR PROTEST BUT WE ARE UNABLE TO CONCLUDE THAT THE ACTION TAKEN BY THE CONTRACTING OFFICIALS WAS WITHOUT JUSTIFICATION. THE RECORD SHOWS THAT, WHILE ALL THE OTHER BIDDERS FURNISHED THE REQUIRED TECHNICAL INFORMATION BEFORE THE DEADLINE DATE OF JUNE 3, 1957, AND ALTHOUGH YOU WERE GRANTED SEVERAL WEEKS ADDITIONAL TIME, YOU FAILED TO FURNISH TECHNICAL DATA SUFFICIENT TO MEET THE REQUIREMENTS OF THE PROCURING OFFICIALS. IN THE CIRCUMSTANCES, AND HAVING IN MIND THE IMPORTANCE AND URGENCY OF THE PROJECT, WHICH HAS BEEN DESIGNATED AN OVERALL PRIORITY OF 1-A, THE DECISION TO DISREGARD YOUR BID AS BEING NONRESPONSIVE AND TO NEGOTIATE WITH ANOTHER BIDDER APPEARS TO HAVE BEEN A LOGICAL COURSE OF ACTION TO TAKE.

ALTHOUGH THE PROCUREMENT WAS NOT INITIATED UNDER THE FORMAL ADVERTISING PROCEDURE, BUT BY REQUESTS FOR PROPOSALS FOR NEGOTIATION UNDER THE AUTHORITY OF 10 U.S.C. 230 4 (A) (10), THE RECORD INDICATES THAT ADEQUATE COMPETITION WAS OBTAINED AND THAT REJECTION OF YOUR BID WAS JUSTIFIED EVEN UNDER THE LESS FLEXIBLE RULES OF FORMAL ADVERTISING REQUIRING AWARD "TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.'

THE QUESTION AS TO THE RESPONSIBILITY AND CAPABILITY OF A BIDDER ON A PROPOSED GOVERNMENT CONTRACT IS A MATTER FOR DETERMINATION BY THE CONTRACTING AGENCY AND SUCH DETERMINATION, WHEN MADE, IS NOT SUBJECT TO REVIEW BY THE COURTS OR OUR OFFICE, IN THE ABSENCE OF A SHOWING OF FRAUD OR BAD FAITH AMOUNTING TO FRAUD. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 96; 20 COMP. GEN. 862. YOUR EX PARTE COMPLAINT THAT THE ACTION OF THE CONTRACTING OFFICIALS IN DETERMINING TO DISREGARD YOUR BID WAS NOT TAKEN IN GOOD FAITH MAY NOT BE ACCEPTED AS SUFFICIENT TO JUSTIFY OUR QUESTIONING THE PROPOSED AWARD, IN VIEW OF THE REPORTED FACT THAT YOU FAILED TO FURNISH INFORMATION SPECIFICALLY CALLED FOR BY THE REQUEST FOR PROPOSALS, WHICH WAS ..END :