B-164384, JAN. 31, 1969

B-164384, JAN. 31, 1969

TO GENERAL ELECTRONIC LABORATORIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 20, 1968, WITH ENCLOSURES, PROTESTING THE CONTEMPLATED AWARD OF A CONTRACT TO INSTRUCTOMATIC, INC., UNDER SOLICITATION NO. FPNHO-K-27628-A-5-10 68,ISSUED BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, WASHINGTON, D.C.

THE SOLICITATION IN QUESTION WAS ISSUED ON APRIL 16, 1968, AND COVERED A REQUIREMENTS CONTRACT FOR 36 ITEMS OF FS CLASS 5830, INTERCOMMUNICATION SETS (LANGUAGE LABORATORY TYPE) FOR THE PERIOD JULY 1, 1968, OR DATE OF AWARD, THROUGH JUNE 30, 1969. BIDS WERE OPENED AS SCHEDULED ON MAY 10, 1968. INSTRUCTOMATIC, INC., WAS THE LOW RESPONSIVE BIDDER ON THE 36 ITEMS (ITEMS 136-34 THROUGH 136-69). IT IS REPORTED THAT THE CONTRACTING OFFICER HAS DETERMINED THAT INSTRUCTOMATIC, INC., IS A RESPONSIBLE BIDDER AND IS CONTEMPLATING AWARDING A CONTRACT ON ITEMS 136-34 THROUGH 136-69 TO THAT CORPORATION. IT ALSO IS REPORTED THAT SUCH AWARD WILL BE HELD IN ABEYANCE PENDING OUR DECISION ON YOUR PROTEST AND THE PROTEST OF ANOTHER BIDDER, THE DUKANE CORPORATION.

YOU CONTEND THAT A CONTRACT FOR FURNISHING THE LANGUAGE LABORATORY EQUIPMENT SHOULD NOT BE AWARDED TO INSTRUCTOMATIC, INC., BECAUSE THAT FIRM MAY HAVE DIFFICULTY IN PRODUCING SUCH EQUIPMENT DUE TO ITS FINANCIAL CONDITION AND ITS LACK OF FACILITIES AND TECHNICAL ABILITY.

THE RECORD SHOWS THAT A PREAWARD SURVEY OF THE PLANT AND FACILITIES OF INSTRUCTOMATIC, INC., WAS CONDUCTED BY THE GENERAL SERVICES ADMINISTRATION AND THAT THE SURVEY INDICATED THAT INSTRUCTOMATIC HAD, AMONG OTHER THINGS, THE REQUIRED PERSONNEL, PLANT, TOOLS PRODUCTION CAPACITY, QUALITY CONTROL PROCEDURES, PURCHASING PROCEDURES, AND PRODUCTION CYCLE. ALSO, IT IS REPORTED THAT A SATISFACTORY REPORT CONCERNING THE FINANCIAL RESPONSIBILITY OF INSTRUCTOMATIC WAS RECEIVED BY THE PROCURING ACTIVITY. THE RECORD SHOWS THAT THE CONTRACTING OFFICER DETERMINED THAT INSTRUCTOMATIC, INC., MET THE STANDARDS OF RESPONSIBILITY SET FORTH IN PARAGRAPH 1-1.310-5 OF THE FEDERAL PROCUREMENT REGULATIONS AND THAT SUCH DETERMINATION WAS BASED ON A PREAWARD SURVEY CONDUCTED BY PERSONNEL OF THE GENERAL SERVICES ADMINISTRATION.

OUR OFFICE, AS WELL AS THE COURTS, HAS CONSISTENTLY HELD THAT THE QUESTION AS TO A BIDDER'S RESPONSIBILITY IS PRIMARILY FOR DETERMANATION BY THE CONTRACTING OFFICER. 43 COMP. GEN. 257, 262; 38 ID. 131, 133; 37 ID. 430, 435; WILLIAM NIKLAUS V FRANK J. MILLER, 66 N.W. 2D 824; KNISKA V SPLAIN, 110 N.Y.S. 2D 267; BROWN V CITY OF PHOENIX, ET AL. 272 P.2D 358; MCNICHOLS V CITY AND COUNTY OF DENVER, 274 P.2D 317. THE RECORD ESTABLISHES THAT THE NECESSARY DETERMINATION REQUIRED BY REGULATION AS TO THE RESPONSIBILITY OF INSTRUCTOMATIC, INC., WAS MADE BY THE CONTRACTING OFFICER AND, IN THE ABSENCE OF EVIDENCE OF CAPRICIOUS OR ARBITRARY ACTION, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION THAT INSTRUCTOMATIC, INC., AS THE SUCCESSFUL BIDDER, IS CAPABLE OF PERFORMING THE PROPOSED CONTRACT.