B-161712, OCT. 9, 1967

B-161712: Oct 9, 1967

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SECOND LOW OFFEROR WHO ALLEGES THAT PRE AWARD SURVEY TEAM WAS UNDULY INFLUENCED TO CHANGE OFFEROR'S CAPABILITY REPORT TO UNFAVORABLE BY PROCURING AGENCY REPRESENTATIVE BUT RECORD INDICATES NEGATIVE RESPONSIBILITY REPORT WAS BASED ON OTHER FACTORS MUST HAVE DETERMINATION OF NONRESPONSIBILITY CONSIDERED PROPER AND SINCE CONTRACTING OFFICER ISSUED CERTIFICATE OF URGENCY NONREFERRAL OF OFFEROR RESPONSIBILITY TO SBA WAS PROPER UNDER ASPR 1-705.4 (C) (IV). INC.: THIS IS IN REFERENCE TO YOUR TELEGRAM DATED JUNE 5. A DETAILED DELIVERY SCHEDULE FOR THE SUBJECT ITEMS WAS LISTED ON PAGE 14 OF CONTRACT NOTES. FOLLOWED BY A WARNING THAT DELIVERY IN ACCORD WITH THE STATED TERMS WAS OF PRIME IMPORTANCE.

B-161712, OCT. 9, 1967

BIDDERS - RESPONSIBILITY - PREAWARD SURVEY DECISION TO HENRY SPEN AND CO., INC. CONCERNING PROTEST AGAINST REJECTION OF BIDDER FOR FURNISHING TRAILER COMMUNICATIONS EQUIPMENT AS NONRESPONSIBLE BY FORT MONMOUTH PROCURMENT DIVISION, N.J. AND FAILURE TO REFER MATTER TO SBA. SECOND LOW OFFEROR WHO ALLEGES THAT PRE AWARD SURVEY TEAM WAS UNDULY INFLUENCED TO CHANGE OFFEROR'S CAPABILITY REPORT TO UNFAVORABLE BY PROCURING AGENCY REPRESENTATIVE BUT RECORD INDICATES NEGATIVE RESPONSIBILITY REPORT WAS BASED ON OTHER FACTORS MUST HAVE DETERMINATION OF NONRESPONSIBILITY CONSIDERED PROPER AND SINCE CONTRACTING OFFICER ISSUED CERTIFICATE OF URGENCY NONREFERRAL OF OFFEROR RESPONSIBILITY TO SBA WAS PROPER UNDER ASPR 1-705.4 (C) (IV). THEREFORE PROTEST MUST BE DENIED.

TO HENRY SPEN AND COMPANY, INC.:

THIS IS IN REFERENCE TO YOUR TELEGRAM DATED JUNE 5, 1967, WHEREIN YOU PROTEST THE REJECTION OF YOUR BID UNDER REQUEST FOR QUOTATION (RFQ) NO. DAAB07-67-Q-0596, ISSUED ON APRIL 10, 1967, BY THE FORT MONMOUTH PROCUREMENT DIVISION, FORT MONMOUTH, NEW JERSEY. THE RFQ LISTED A REQUIREMENT FOR 187, EACH, TRAILER, COMMUNICATION EQUIPMENT V-397) ( (MRC- 115 AND VARIOUS SUB-ITEMS IN ACCORD WITH SPECIFICATION MIL-T 55542/EL) DATED MARCH 30, 1967, AND MODEL S/N2 CONSTRUCTED BY THE TOBYHANNA ARMY DEPOT. A DETAILED DELIVERY SCHEDULE FOR THE SUBJECT ITEMS WAS LISTED ON PAGE 14 OF CONTRACT NOTES, FOLLOWED BY A WARNING THAT DELIVERY IN ACCORD WITH THE STATED TERMS WAS OF PRIME IMPORTANCE. OF THE 70 FIRMS SOLICITED, NINE SUBMITTED BIDS PRIOR TO THE CLOSING DATE OF APRIL 25, 1967.

IN ACCORD WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-902 THE CONTRACTING OFFICER PROCEEDED TO DETERMINE THE RESPONSIBILITY OF THE LOWEST OFFERORS, INCLUDING YOUR COMPANY, PRIOR TO MAKING AN AWARD. ORDER TO OBTAIN INFORMATION CONCERNING THE CAPABILITIES OF THE SUBJECT CONCERNS THE CONTRACTING OFFICER REQUESTED PREAWARD SURVEYS OF THEIR PLANTS. DUE TO AN UNFAVORABLE REPORT SUBMITTED BY A PREAWARD SURVEY TEAM THE LOWEST OFFEROR WAS DETERMINED NONRESPONSIBLE. YOU WERE ALSO DETERMINED TO BE NONRESPONSIBLE PURSUANT TO A PREAWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), NEW YORK, AND THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH. REFERRAL TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION OF THE ISSUANCE OF A CERTIFICATE OF COMPETENCY WAS CONSIDERED BUT WAS REJECTED BECAUSE OF THE URGENT NEED FOR THE REQUIREMENT, AND A WRITTEN STATEMENT SETTING FORTH THE REASONS FOR NONREFERRAL TO THE SBA WAS MADE PART OF THE CONTRACT FILE IN ACCORD WITH ASPR 1-705.4 (C) (IV) QUOTED AS FOLLOWS: "A REFERRAL NEED NOT BE MADE TO THE SBA IF THE CONTRACTING OFFICER CERTIFIES IN WRITING THAT THE AWARD MUST BE MADE WITHOUT DELAY, INCLUDES SUCH CERTIFICATE AND SUPPORTING DOCUMENTATION IN THE CONTRACT FILE, AND PROMPTLY FURNISHES A COPY TO THE SBA REPRESENTATIVE.'

YOU CONTEND THAT THE REPRESENTATIVE OF THE FORT MONMOUTH ELECTRONICS COMMAND WHO ACCOMPANIED THE DCASR SURVEY TEAM TO YOUR PLANT "BULLDOZED" THE DCASR REPRESENTATIVES INTO CHANGING THEIR FAVORABLE REPORTS REGARDING YOUR CAPABILITY, AND THAT THERE WAS NO JUSTIFICATION FOR NONREFERRAL OF THE QUESTION OF YOUR CAPACITY TO THE SBA. YOU ALSO MAINTAIN THAT THE PROCUREMENT OFFICIALS IMPROPERLY RELEASED INFORMATION CONTAINED IN YOUR PROPOSAL BEFORE THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS.

IN RESPONSE TO YOUR ALLEGATIONS REGARDING THE "BULLDOZING" OF DCASR PERSONNEL, WE ARE ADVISED THAT THE DCASR ENGINEER SUBMITTED A FAVORABLE REPORT ON YOUR FACILITIES BUT THAT THE CRITICISMS CONTAINED IN THE REPORT OF THE FORT MONMOUTH PROJECT ENGINEER WERE GIVEN MORE WEIGHT BECAUSE THE FORMER HAD NOT SEEN THE MODEL OF THE REQUIRED ITEM AND THEREFORE COULD NOT JUDGE THE COMPLEXITY OF THE WORK INVOLVED. ACCORDINGLY, ON MAY 9, 1967, THE PREAWARD SURVEY BOARD ISSUED A REPORT RECOMMENDING THAT NO AWARD BE MADE TO YOU BECAUSE OF DEFICIENCIES IN YOUR PRODUCTION CAPABILITY, PURCHASING AND SUBCONTRACTING, AND ABILITY TO MEET THE REQUIRED SCHEDULE. THE PERTINENT PROVISIONS OF THE REPORT ARE QUOTED AS FOLLOWS: "2. PRODUCTION CAPABILITY - UNSATISFACTORY. WHILE THE COMPANY HAS PRODUCED AND IS PRESENTLY PRODUCING ITEMS OF A SIMILAR MATTER REQUIRING BOTH ELECTRICAL AND MECHANICAL COMPONENTS, BIDDER FAILED TO FURNISH DETAILED PLANNING REGARDING CAPACITY OR TIME REQUIRED TO PERFORM THE IN-HOUSE PROCESSING OPERATIONS INVOLVED IN FABRICATING, ASSEMBLY AND TESTING. ALSO TAKING INTO CONSIDERATION WAS THE TECHNICAL ADVICE FROM MR. J. PICCO, PROJECT ENGINEER FOR THIS EQUIPMENT AT FT. MONMOUTH, N.J. WHO STATED -THAT THE BIDDER'S REQUIREMENT OF 8,800 MANHOURS FOR FABRICATION TIME WAS SERIOUSLY UNDERESTIMATED AND THAT APPROXIMATELY 22,000 MANHOURS WOULD BE REQUIRED. AS SUCH, THE BIDDER DOES NOT HAVE A FULL UNDERSTANDING OF THE REQUIRED MANUFACTURING AND WIRING MANHOURS PERTINENT TO THIS PROCUREMENT.-

* * * * * * * "5. PURCHASING AND SUBCONTRACTING - UNSATISFACTORY. BIDDER HAD NOT MADE A -MAKE OR BUY- DETERMINATION AND AS SUCH, WAS UNABLE TO FURNISH SATISFACTORY EVIDENCE AS TO HIS ABILITY TO SUBCONTRACT THE WIRING REQUIREMENTS.

* * * * * * * "13. ABILITY TO MEET REQUIRED SCHEDULE - UNSATISFACTORY. BASED UPON THE DEFICIENCIES DETAILED IN FACTOR NBRS 2 AND 5 ABOVE, THERE IS SERIOUS DOUBT AS TO THE BIDDER'S ABILITY TO MEET THE PRESCRIBED DELIVERY SCHEDULE.'

THE EXTENT TO WHICH THE BOARD CONSIDERED THE PROJECT ENGINEER'S REPORT AND WAS INFLUENCED BY IT IS EXPLAINED IN THE FOLLOWING PORTION OF A REPORT SUBMITTED TO THIS OFFICE BY DCASR, NEW YORK, UNDER DATE OF SEPTEMBER 1, 1967:

"THE DCASR TEAM WHICH CONDUCTED THIS PRE-AWARD SURVEY WAS ASSISTED BY TECHNICAL SPECIALISTS, INCLUDING THE PROJECT ENGINEER, FROM THE PROCURING ACTIVITY. IT SHOULD BE NOTED THAT PARTICIPATION BY PROCURING ACTIVITY PERSONNEL IN A DCASR SURVEY IS A NORMAL PRACTICE AUTHORIZED BY ASPR APPENDIX K-203.1 (B). THIS ASSISTANCE WAS DEEMED NECESSARY FOR THIS SURVEY INASMUCH AS THE DCASR PERSONNEL HAD NOT VIEWED THE MODEL UNIT AND, AS SUCH, WERE UNABLE TO JUDGE THE DEGREE OF COMPLEXITY OF THE WIRING OR THE RELATED PRODUCTION EFFORT. EACH PARTICIPANT IN THE SURVEY INVESTIGATED THE AREAS PERTINENT TO HIS SPECIALTY AND THEN SUBMITTED A REPORT DETAILING THE FINDINGS APPLICABLE TO EACH AREA PLUS AN OVERALL RECOMMENDATION AS TO AWARD. WHILE THE DCASR PERSONNEL WERE ABLE TO FINALIZE THEIR COMMENTS ON CERTAIN AREAS, THE AFOREMENTIONED LIMITATIONS MADE IT NECESSARY FOR THEM TO AWAIT THE WRITTEN REPORT FROM THE PROJECT ENGINEER IN ORDER TO FINALIZE THOSE OTHER AREAS WHICH INVOLVED HIS SPECIALIZED KNOWLEDGE. AS AN EXAMPLE, THE INDUSTRIAL SPECIALIST HAD TO WITHHOLD COMPLETING HIS COMMENTS ON THREE (3) OF THE SEVEN (7) AREAS PERTINENT TO THE BIDDER'S PRODUCTIVE CAPABILITY.

"ALL OF THE FOREGOING WAS REFLECTED IN THE INDIVIDUAL REPORTS WHICH WERE SUBSEQUENTLY SUBMITTED TO THE PRE-AWARD REVIEW BOARD. THE BOARD CAREFULLY EVALUATED ALL OF THE EVIDENCE AND AGREED THAT THE FINDINGS OF THE FORT MONMOUTH PROJECT ENGINEER WERE PERTINENT. THE BOARD CONCLUDED THAT THERE WAS NO REASONABLE ASSURANCE THAT THIS BIDDER COULD EFFECT DELIVERIES IN ACCORDANCE WITH THE PRESCRIBED SCHEDULE. ACCORDINGLY, A NEGATIVE RECOMMENDATION WAS FORWARDED TO THE PROCURING ACTIVITY.'

IN VIEW OF THE FOREGOING, AND SINCE THE BOARD'S NEGATIVE EVALUATION WAS BASED ON SIGNIFICANT FACTORS OTHER THAN THE ONE DETAILED BY THE PROJECT ENGINEER, YOUR ALLEGATIONS OF "BULLDOZING" WOULD NOT APPEAR TO BE SUBSTANTIATED BY THE RECORD. MOREOVER, WHILE THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO ACCEPT THE FINDINGS OF THE PREAWARD SURVEY BOARD, ASPR 1-905.4 (A) (III) SPECIFICALLY PROVIDES THAT THE CONTRACTING OFFICER MAY UTILIZE SUCH REPORTS IN MAKING RESPONSIBILITY DETERMINATIONS. IN VIEW THEREOF, AND SINCE THE NEGATIVE FINDINGS CITED IN THE BOARD'S REPORT WOULD APPEAR TO JUSTIFY A DETERMINATION OF NONRESPONSIBILITY, WE CANNOT CONSIDER THE CONTRACTING OFFICER'S ACCEPTANCE OF THE REPORT IN THIS CASE AS ARBITRARY.

REGARDING YOUR CONTENTION THAT THERE WAS INSUFFICIENT JUSTIFICATION TO AVOID REFERRAL TO THE SBA FOR A RESPONSIBILITY DETERMINATION WE ARE ADVISED THE REQUIREMENT CARRIED AN 02 PRIORITY AND THAT AN IMMEDIATE AWARD WAS DEEMED ESSENTIAL IN PERMITTING DELIVERY WITHIN THE TIME SCHEDULE. LIGHT OF THESE FACTORS, AND SINCE THE CONTRACTING OFFICER EXECUTED A CERTIFICATE TO THAT EFFECT, IN ACCORD WITH ASPR 1 705.4 (C) (IV), ON MAY 22, 1967, WE SEE NO VALID BASIS ON WHICH TO OBJECT TO THE NONREFERRAL OF THE QUESTION OF YOUR RESPONSIBILITY TO THE SBA.

WITH REGARD TO YOUR ALLEGATIONS OF IMPROPER RELEASE OF BID INFORMATION PRIOR TO THE CLOSING DATE SET FOR RECEIPT OF PROPOSALS, THE FORT MONMOUTH PROCUREMENT DIVISION MAINTAINS THAT ALL INFORMATION REGARDING THE PROCUREMENT WAS HANDLED IN ACCORD WITH ASPR 3-507.2 "DISCLOSURE OF INFORMATION DURING THE PRE-AWARD OR PRE-ACCEPTANCE PERIOD," AND THAT ONLY THE IDENTITY OF OFFERORS WAS DIVULGED TO AUTHORIZED GOVERNMENT PERSONNEL FOR THE PURPOSES OF THE PREAWARD SURVEY IN ACCORD WITH THIS REGULATION. IN DISPUTES OF THIS NATURE, IT IS THE LONG ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE FACTS AS ESTABLISHED BY THE ADMINISTRATIVE RECORDS, UNLESS THERE IS SUFFICIENT EVIDENCE TO REFUTE THE PRESUMPTION OF CORRECTNESS OF SUCH RECORDS. 37 COMP. GEN. 568. WE DO NOT FIND SUCH EVIDENCE IN THE PRESENT RECORD.

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