B-157055, SEPT. 2, 1965

B-157055, SEPT. 2, 1965

TO TECHNICAL SUPPORT COMPANY:

YOUR TELEGRAM OF JUNE 21, 1965, PROTESTS AWARD OF A CONTRACT TO FREQUENCY ENGINEERING LABORATORIES (FEL) OF FARMINGDALE, NEW JERSEY, UNDER INVITATION FOR BIDS NO. AMC (A/-36-038-65-1033 WEI, ISSUED MAY 3, 1965, BY FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

THE IFB SOLICITED BIDS, ON A TOTAL SMALL BUSINESS SET-ASIDE BASIS, TO FURNISH A QUANTITY OF COMPUTER LOGIC TEST SET UNITS (FALT), FOR DELIVERY COMMENCING IN APRIL 1966 AND TERMINATING IN JULY 1966, AND A QUANTITY OF PULSE GENERATORS, FOR DELIVERY COMMENCING IN NOVEMBER 1965 AND TERMINATING IN MAY 1966. COPIES OF THE IFB WERE FURNISHED TO 13 FIRMS, 5 OF WHICH SUBMITTED RESPONSIVE BIDS. THE STANDING OF THE BIDDERS IS AS FOLLOWS:

TABLE

NAME BID AMOUNT FREQUENCY ENGINEERING LABORATORIES, INC. $ 677,950.01 TECHNICAL SUPPORT COMPANY

765,037.38 RODALE ELECTRONICS, INC. 789,238.84 CALIFORNIA COMPUTER PRODUCTS, INC. 1,108,627.06 CHRISTIAN PRECISION MFG. CO., INC.

1,144,934.80

YOU CONTEND THAT YOU ARE THE LOWEST RESPONSIBLE BIDDER FOR THE REASONS THAT (1) FEL HAS NOT DELIVERED ON A CURRENT CONTRACT FOR THE PROCUREMENT ITEMS IN QUESTION; (2) THERE IS EVIDENCE THAT FEL WILL NOT BE CAPABLE OF BUILDING UP TO AN ACCEPTABLE DELIVERY RATE WITHIN A REASONABLE PERIOD OF TIME; AND (3) THE POSSIBILITY OF A DEFAULT BY FEL IS PREDICTED. ACCORDINGLY, YOU ASSERT, AN AWARD TO FEL WOULD PLACE THE GOVERNMENT IN THE UNDESIRABLE POSITION OF HAVING AS A SINGLE SOURCE A COMPANY WHOSE PERFORMANCE IS KNOWN TO BE QUESTIONABLE.

FEL IS LOCATED WITHIN THE NEW YORK PROCUREMENT DISTRICT (NYPD). THEREFORE, THE PRE-AWARD SURVEY OF ITS FACILITIES ON JUNE 15 AND 16 WAS CONDUCTED BY NYPD, ASSISTED BY A TECHNICAL REPRESENTATIVE FROM FRANKFORD ARSENAL. SINCE FEL IS BOTH A PAST AND CURRENT PRODUCER OF THE PROCUREMENT ITEMS IN QUESTION, CONSIDERATION WAS GIVEN TO ITS PAST PERFORMANCE AS WELL AS OT ITS CURRENT GOVERNMENT CONTRACTS, OF WHICH SIX WERE REPORTED TO BE DELINQUENT.

THE REPORTS FURNISHED TO THE CONTRACTING OFFICER BY BOTH NYPD AND THE ARSENAL'S REPRESENTATIVE WERE TO THE EFFECT THAT FEL IS CONSIDERED TO HAVE ALL THE FACILITIES AND PERSONNEL REQUIRED TO PERFORM THE PROPOSED CONTRACT; THAT ON ONE PAST SIMILAR CONTRACT IT DELIVERED THE MATERIAL SIX MONTHS AHEAD OF SCHEDULE; THAT ADEQUATE EXPLANATIONS WERE FURNISHED FOR ITS DELINQUENCIES ON FIVE OF THE CURRENT CONTRACTS, ALL OF WHICH WERE SCHEDULED FOR COMPLETION BY JULY 31, 1965, OR FOUR MONTHS PRIOR TO THE FIRST DELIVERY DATE UNDER THE PROPOSED CONTRACT, BASED ON A JUNE 30, 1965, AWARD DATE; AND THAT DELIVERIES UNDER THE SIXTH DELINQUENT CONTRACT WILL HAVE VIRTUALLY NO EFFECT ON FALT PRODUCTION. ACCORDINGLY, IT WAS THE RECOMMENDATION OF BOTH THE NYPD AND THE ARSENAL'S REPRESENTATIVE THAT THE PROPOSED CONTRACT BE AWARDED TO FEL.

IT IS THE POSITION OF THE CONTRACTING OFFICER, BASED ON THE FAVORABLE PRE -AWARD SURVEY REPORT AND OTHER EVIDENCE SHOWING THAT FEL IS WHOLLY CAPABLE OF MEETING THE PROCUREMENT NEEDS, THAT FEL SHOULD BE AWARDED THE CONTRACT. HOWEVER, AWARD IS BEING WITHHELD PENDING OUR DECISION ON YOUR PROTEST.

THE APPLICABLE PROCUREMENT STATUTE, 10 U.S.C. 2305 (C), REQUIRES THAT A CONTRACT AWARD PURSUANT TO FORMAL ADVERTISING BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID IS RESPONSIVE AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES. ARTICLE 8 (A), TERMS AND CONDITIONS OF THE INVITATION FOR BIDS, SMUFA FORM 20-1872-3, CONTAINS LANGUAGE SIMILAR TO THE LANGUAGE OF THE STATUTE. ARMED SERVICES PROCUREMENT REGULATION 1-904 PRECLUDES AWARD OF A CONTRACT UNLESS THE BIDDER IS DETERMINED TO BE RESPONSIBLE.

THE RESPONSIBILITY OF A BIDDER IS PRIMARILY A MATTER FOR DETERMINATION BY THE CONTRACTING AGENCY, AND SUCH DETERMINATIONS ARE NOT QUESTIONED BY OUR OFFICE IN THE ABSENCE OF CONVINCING EVIDENCE OF FRAUD, COLLUSION, BAD FAITH, OR LACK OF ANY SUBSTANTIAL FACTUAL BASIS. 37 COMP. GEN. 703, 705. MOREOVER, WE HAVE FREQUENTLY HELD THAT DEFICIENT PERFORMANCE OF A PARTICULAR CONTRACTOR ON A PAST PROCUREMENT DOES NOT PER SE WARRANT A FINDING THAT THE BIDDER IS NONRESPONSIBLE. NOT ONLY SHOULD THERE BE CONSIDERED THE CIRCUMSTANCES GIVING RISE TO THE DEFICIENT PAST PERFORMANCE, BUT THE DETERMINATION OF RESPONSIBILITY SHOULD BE BASED ON THE SITUATION EXISTING AT THE TIME THE DETERMINATION IS MADE. 43 COMP. GEN. 323; B-155600, FEBRUARY 25, 1965.

THE RECORD BEFORE US INDICATES THAT WHILE THERE HAVE BEEN DEFICIENCIES IN SOME OF FEL'S CONTRACT PERFORMANCES, ACTION HAS BEEN TAKEN BY FEL TO CORRECT SUCH FAILINGS WITH A VIEW TO COMPLETING ALL BUT ONE OF THE DELINQUENT CONTRACTS WELL IN ADVANCE OF THE TIME DELIVERIES WILL BE REQUIRED TO COMMENCE UNDER THE PROPOSED CONTRACT. ACCORDINGLY, AND SINCE THE PERFORMANCE OF THE REMAINING DELINQUENT CONTRACT REPORTEDLY WILL NOT AFFECT FEL'S PERFORMANCE OF THE PROPOSED CONTRACT, IT IS OUR VIEW THAT THE FACTS OF RECORD DO NOT AFFORD A LEGAL BASIS TO QUESTION THE DETERMINATION OF THE CONTRACTING OFFICER THAT FEL IS A RESPONSIBLE BIDDER.

WHILE AN AWARD TO FEL MAY ADD TO A NUMBER OF SIMILAR CONTRACTS ALREADY AWARDED TO THAT FIRM, NEVERTHELESS, THERE IS NO INDICATION, NOR DO YOU ALLEGE, THAT THERE HAS BEEN ANY IMPROPRIETY IN ANY OF THE OTHER AWARDS. FURTHERMORE, SINCE FOUR OTHER FIRMS (INCLUDING AT LEAST ONE PRIOR PRODUCER OF THE ITEM) SUBMITTED RESPONSIVE BIDS ON THE CURRENT PROCUREMENT, IT IS OBVIOUS THAT FEL IS NOT A SOLE SOURCE FOR THE ITEMS INVOLVED.