B-160649, DEC. 1, 1967

B-160649, DEC. 1, 1967

BIDDERS - RESPONSIBILITY - PRE-AWARD SURVEY DECISION TO J. CARNER CO., INC. CONCERNING DECISIONS UPHOLDING CONTRACTING OFFICER'S DETERMINATION THAT PROTESTANT WAS NOT RESPONSIBLE BIDDER FOR NASA CONTRACT. PROTESTANT IS GIVEN RESUME OF FINDINGS OF DCASR IN ITS SURVEY OF PROTESTANT'S ABILITY TO PERFORM. INFORMATION DOES NOT FURNISH ANY BASIS TO SET ASIDE COMP. GEN. DECISIONS OF MARCH 27, AND AUG. 7, 1967.

TO J. CARNER CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1967, REQUESTING THAT OUR OFFICE SET ASIDE DECISIONS B-160649 OF MARCH 27 AND AUGUST 7, 1967, UPHOLDING THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER UNDER INVITATION FOR BIDS MSC-WS-67-7-AD, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) MANNED SPACECRAFT CENTER, WHITE SANDS TEST FACILITY, LAS CRUCES, NEW MEXICO.

THE PREVIOUS DECISIONS INDICATED THAT THE CONTRACTING OFFICER'S DETERMINATION WAS BASED UPON INFORMATION FURNISHED IN LARGE PART BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION-LOS ANGELES (DCASR LA). YOU CONTEND THAT NEITHER DECISION IS BASED UPON THE TRUE FACTS OF THE MATTER. IN THAT CONNECTION YOU STATE THAT YOUR COMPANY WAS NEVER QUERIED BY DCASR ABOUT FINANCIAL CAPABILITY NOR ABOUT LATE DELIVERY UNDER OTHER GOVERNMENT CONTRACTS.

OUR OFFICE HAS SECURED ADDITIONAL INFORMATION REGARDING THIS MATTER WHICH IS SET FORTH BELOW. WHILE THE INFORMATION DOES NOT CHANGE OUR CONCLUSION IN THE MATTER, SO THAT YOU MAY HAVE A PROPER PERSPECTIVE OF THE SITUATION, YOU SHOULD UNDERSTAND THAT THE CONTRACTING OFFICER'S DETERMINATION WAS BASED UPON THE PREAWARD SURVEY CONDUCTED BY DCASR AND OTHER INFORMATION AS WELL.

WITH REGARD TO YOUR ALLEGATION ABOUT NEVER BEING QUERIED CONCERNING FINANCIAL CAPABILITY, DCASR HAS FURNISHED INFORMATION AS FOLLOWS: "ON FRIDAY, 28 OCTOBER 1966, THE FINANCIAL ANALYST TELEPHONED MR. GEORGE OWENS, VICE PRESIDENT-GENERAL MANAGER, AND ADVISED HIM OF THE PRE AWARD SURVEY AND THAT A CURRENT FINANCIAL STATEMENT AND BACKLOG OF BUSINESS WOULD BE NEEDED. MR. OWENS STATED THAT THE BOOKS OF ACCOUNT WERE BEING AUDITED BY INDEPENDENT AUDITORS AND A FINANCIAL STATEMENT WAS NOT AVAILABLE. THE FINANCIAL ANALYST RE-STATED THAT A FINANCIAL STATEMENT WAS NECESSARY TO PROPERLY EVALUATE THE CORPORATION'S CAPABILITY TO PERFORM UNDER THE PROPOSED AWARD SINCE THE LATEST FINANCIAL DATA AVAILABLE WAS 31 MARCH 1965. MR. OWENS THEN TRANSFERRED THE FINANCIAL ANALYST TO MR. LAZOR, ACCOUNTANT. AT THAT MOMENT MR. LAZOR WAS ON THE TELEPHONE; THE FINANCIAL ANALYST LEFT HIS NAME AND TELEPHONE NUMBER AND REQUESTED HIM TO RETURN HIS CALL. MR. LAZOR DID NOT RETURN THIS CALL. LATER IN THE AFTERNOON OF THE SAME DAY, THE FINANCIAL ANALYST AGAIN ATTEMPTED TO REACH MR. LAZOR BY TELEPHONE BUT HAD NO RESULTS. "ON MONDAY MORNING, 31 OCTOBER 1966, TWO TELEPHONE CALLS WERE MADE BY THE FINANCIAL ANALYST TO THE PROPOSED CONTRACTOR. AGAIN, THE FINANCIAL ANALYST WAS UNABLE TO REACH THE PARTIES CONCERNED. THE FINANCIAL ANALYST ONCE MORE LEFT HIS NAME AND TELEPHONE NUMBER AND REQUESTED THE INDIVIDUALS TO RETURN HIS CALL. RETURN TELEPHONE CALLS WERE RECEIVED. "THE PRE-AWARD SURVEY UNDER CONSIDERATION WAS DUE ON 31 OCTOBER 1966, AND ACCORDINGLY A NEGATIVE RECOMMENDATION WAS SUBMITTED.'

WITH RESPECT TO ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE, DCASR ADVISED THAT ON OCTOBER 26, 1966, AN ONSITE SURVEY WAS PERFORMED BY MR. C. E. FREED, INDUSTRIAL SPECIALIST, MR. J. SUPPES, JR., QUALITY ASSURANCE REPRESENTATIVE, AND MR. C. BRAMBLETT, INDUSTRIAL ENGINEER, WHO CONTACTED MR. J. CARNER AND MR. N. SILVERMAN OF YOUR COMPANY. THE LATTER PERSONS ARE REPORTED TO HAVE PROVIDED INFORMATION WITH RESPECT TO PRODUCTION, BUT NEITHER PRESENTED A PRODUCTION PLAN OF TIME-PHASED REQUIREMENTS NECESSARY TO MEET THE DELIVERY SCHEDULE OF THE PROSPECTIVE CONTRACT AND THERE WAS NOT PRESENTED DEFINITE DELINEATION OF WHICH ORGANIZATION OR AFFILIATE WAS TO PERFORM WHAT ASPECT OF THE CONTRACT WORK REQUIREMENTS. THE ABSENCE OF A PLAN FOR THE ACCOMPLISHMENT OF THE CONTRACT LED THE SURVEYORS TO RECOMMEND AGAINST AWARD. IN CONNECTION WITH THE FOREGOING, DCASR POINTS OUT THAT ASPR 1 902 PROVIDES "DOUBT AS TO PRODUCTIVE CAPACITY OR FINANCIAL STRENGTH WHICH CANNOT BE RESOLVED AFFIRMATIVELY SHALL REQUIRE A DETERMINATION OF NONRESPONSIBILITY.'

INFORMATION ALSO WAS FURNISHED THE CONTRACTING OFFICER BY DCASR THAT CRYO -SONICS HAD FOUR CONTRACTS (N600/19/62752, N600/19/63291, NOBS-92328 AND AF 41/608/36396) FOR SIMILAR EQUIPMENT IN WHICH THERE WERE DELIVERY DELINQUENCIES RANGING FROM 15 TO 232 DAYS AND THAT EQUIPMENT IN ONE OF THE FOUR CONTRACTS WAS SERIOUSLY DEFICIENT. SEE B 160649, MARCH 27, 1967. ADDITIONALLY, THE CONTRACTING OFFICER HAD INFORMATION INDICATING THAT CRYO -SONICS EQUIPMENT AT WHITE SANDS TEST FACILITY REQUIRED EXCESSIVE MAINTENANCE TO KEEP IT OPERATIONAL. SINCE YOUR COMPANY WOULD USE THE FACILITIES OF CRYO-SONICS AND THE PERFORMANCE RECORD OF CRYO-SONICS WAS UNSATISFACTORY, THE CONTRACTING OFFICER CONSIDERED YOUR COMPANY DID NOT HAVE A SATISFACTORY RECORD OF PERFORMANCE. ADDITIONALLY, THE PERFORMANCE OF A CONSTRUCTION CONTRACT FOR WHITE SANDS TEST FACILITY BY YOUR COMPANY WAS REPORTED AS BEING BELOW PAR. YOUR COMPANY WAS DETERMINED TO BE INELIGIBLE BECAUSE OF THE ABOVE-DESCRIBED UNSATISFACTORY PERFORMANCE. SEE THE CONTRACTING OFFICER'S LETTER OF JANUARY 6, 1966, TO YOU.

THUS, WHILE LATE DELIVERIES UNDER OTHER GOVERNMENT CONTRACTS MAY NOT HAVE BEEN DISCUSSED WITH YOUR COMPANY BY DCASR SURVEYORS, ADVICE IN THAT REGARD WAS FURNISHED TO THE CONTRACTING OFFICER FROM INFORMATION OTHERWISE AVAILABLE TO DCASR. ALSO, AS INDICATED, THE CONTRACTING OFFICER HAD OTHER INFORMATION IN THIS REGARD.

WE TRUST THAT THE FOREGOING WILL CORRECT ANY MISUNDERSTANDING WHICH MAY EXIST AS TO THE INFORMATION WHICH WAS AVAILABLE TO THE CONTRACTING OFFICER AT THE TIME OF HIS DETERMINATION. IN ANY EVENT, IN VIEW OF THE FOREGOING WE DO NOT PERCEIVE OF ANY LEGAL BASIS FOR SETTING ASIDE THE PREVIOUS DECISIONS OF OUR OFFICE IN THIS MATTER.