B-171659, JUN 21, 1971

B-171659, JUN 21, 1971

BID PROTEST - BIDDER RESPONSIBILITY - PAST PERFORMANCE DENIAL OF PROTEST OF IRVIN INDUSTRIES, INC., LOW BIDDER, AGAINST AWARD OF CONTRACT TO TELEDYNE INC., THIRD LOW BIDDER, UNDER SOLICITATION ISSUED BY NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENN. AS URGENT NEED EXISTED AND AS PROTESTANT HAD PROVED LESS THAN SATISFACTORY IN FULFILLING A THEN CURRENT CONTRACT FOR THE SAME ITEM, THE REASSESSMENT OF PROTESTANT'S RESPONSIBILITY BY THE PROCURING AGENCY, WHILE AWAITING RESULTS OF A BID PROTEST OF TELEDYNE REGARDING THE SAME SOLICITATION, AND ITS CONSEQUENT DECISION TO AWARD THE CONTRACT TO TELEDYNE CANNOT BE SAID TO HAVE BEEN IMPROPER.

TO IRVIN INDUSTRIES, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF MAY 6 AND 7, 1971, RESPECTIVELY, PROTESTING AGAINST ANY AWARD UNDER SOLICITATION NO. N00156-71-B-0185, ISSUED BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA, AND REQUESTING THAT THE SOLICITATION BE CANCELLED AND THE REQUIREMENT READVERTISED.

YOU CONTEND THAT SINCE AWARD WAS NOT MADE TO YOUR FIRM AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER WITHIN A REASONABLE PERIOD OF TIME AFTER BID OPENING, IT WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT, PRICE, DELIVERY, AND OTHER FACTORS CONSIDERED, TO MAKE AN AWARD TO ANY OTHER BIDDER. IN THIS CONNECTION, YOU ARGUE THAT AWARD PROPOSED UNDER THE SUBJECT SOLICITATION WILL RESULT IN A SUBSTANTIALLY HIGHER PRICE, DELIVERY WOULD COMMENCE 18 TO 24 MONTHS LATER, AND THE TECHNICAL RISK WOULD BE SUBSTANTIAL SINCE THE OTHER BIDDER, PRESUMABLY REFERRING TO TELEDYNE-INET, HAS NOT QUALIFIED OR PRODUCED THE ITEM BEING PROCURED.

THE RECORD SHOWS THAT BIDS WERE OPENED ON JANUARY 7, 1971, AND YOU WERE THE LOW BIDDER. TELEDYNE-INET, THE THIRD LOW BIDDER, FILED A PROTEST WITH OUR OFFICE ON JANUARY 11, 1971, CONTENDING THAT NO AWARD SHOULD BE MADE TO YOUR FIRM AS YOUR BID WAS A SUBTERFUGE FOR AN OTHERWISE UNQUALIFIED FIRM AND THAT YOU DID NOT QUALIFY AS A "MANUFACTURER" UNDER THE WALSH-HEALEY ACT. ALTHOUGH THE PROTEST HAD NOT BEEN RESOLVED AS OF APRIL 13, 1971, THE CONTRACTING OFFICER WAS CONSIDERING AWARD TO YOUR FIRM UNDER AUTHORITY OF SUBPARAGRAPH (I) OF ASPR 2-407.8(B)(3), WHICH PERMITS AWARD TO BE MADE PRIOR TO RESOLUTION OF A PROTEST UPON A DETERMINATION THAT THE ITEM IS URGENTLY NEEDED. HOWEVER, UPON REASSESSMENT OF YOUR RESPONSIBILITY IN LIGHT OF YOUR UNSATISFACTORY PROGRESS IN PERFORMANCE UNDER A CURRENT CONTRACT FOR THE SAME ITEM, AND BECAUSE OF DOUBT AS TO YOUR ELIGIBILITY AS A MANUFACTURER, AWARD WAS NOT MADE AT THAT TIME. THE CONTRACTING OFFICER REPORTS THAT YOUR BID EXPIRED ON APRIL 26, 1971, AFTER YOU REFUSED THE NAVY'S REQUEST TO EXTEND THE ACCEPTANCE PERIOD PENDING RESOLUTION OF THE PROTEST.

THE CONTRACTING OFFICER HAS DETERMINED THAT SINCE THE ITEM IS URGENTLY NEEDED AND RESOLICITATION WOULD ENTAIL ADDITIONAL DELAY, IT WOULD BE CONTRARY TO THE GOVERNMENT'S BEST INTEREST TO CANCEL THE SOLICITATION AND READVERTISE. IN ADDITION, IT IS HIS OPINION THAT DUE TO THE PASSAGE OF TIME AND INFLATIONARY TREND SINCE THE SOLICITATION WAS ISSUED, RESOLICITATION WOULD RESULT IN HIGHER PRICES. FURTHERMORE, HE REPORTS THAT TELEDYNE-INET MEETS THE BIDDER RESPONSIBILITY CLAUSE OF THE SOLICITATION AS IT HAS MANUFACTURED THE SAME OR SIMILAR ITEM THAT IS BEING PROCURED. THEREFORE, HE IS OF THE OPINION THAT IT IS IN THE GOVERNMENT'S BEST INTEREST TO PROCEED WITH CONSIDERATION OF AN AWARD UNDER THE SUBJECT INVITATION.

IN THE CIRCUMSTANCES REPORTED HERE, WE SEE NO BASIS FOR DISAGREEING WITH THE ADMINISTRATIVE POSITION THAT THE GOVERNMENT'S BEST INTEREST WOULD BE SERVED BY MAKING AWARD UNDER THE INSTANT INVITATION.

ACCORDINGLY, YOUR PROTEST IS DENIED.