B-153578, MAY 12, 1964

B-153578, MAY 12, 1964

TO MR. DANIEL R. JORDAN:

REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 25, 1964, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THAT YOUR COMPANY WAS NOT AWARDED THE CONTRACT FOR CERTAIN RUCKSACKS INCLUDED AS ITEM 1 IN DEFENSE CLOTHING AND TEXTILE SUPPLY CENTER REQUEST FOR PROPOSAL DSA-1 64-NEG-668, ISSUED JANUARY 3, 1964.

THE SUBJECT PROCUREMENT WAS NEGOTIATED UNDER 10 U.S.C. 2304 (A) (2) ON THE BASIS OF A DETERMINATION THAT THERE WAS A PUBLIC EXIGENCY FOR THE ARTICLES WHICH WOULD NOT PERMIT OF THE DELAY INCIDENT TO ADVERTISING. IMMEDIATELY FOLLOWING THE ISSUANCE OF THE REQUEST FOR PROPOSALS THE CONTRACTING OFFICER AND THE PURCHASING AGENT CONTACTED THE POTENTIAL OFFERORS AND ADVISED THEM OF THE EMERGENCY NATURE OF THE PROCUREMENT AND THAT IN MAKING THE AWARDS PRIMARY CONSIDERATION WOULD BE GIVEN TO THE ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE WHICH WAS THEN SET OUT IN THE REQUEST FOR PROPOSALS AS WITHIN 60 DAYS AFTER AWARD.

FOLLOWING THE RECEIPT OF PROPOSALS, A PREAWARD SURVEY WAS CONDUCTED AT YOUR PLANT. YOU COOPERATED WITH THE SURVEYORS AND FURNISHED THEM WRITTEN COMMITMENTS YOU HAD RECEIVED FROM PROSPECTIVE SUPPLIERS AND, ALSO, YOU MADE TELEPHONE CALLS IN THEIR PRESENCE TO PROSPECTIVE SUPPLIERS IN AN EFFORT TO OBTAIN BETTER DELIVERY. HOWEVER, FROM THE INFORMATION YOU OBTAINED, IT DEVELOPED THAT THE ALUMINUM FRAME COMPONENTS WOULD NOT BE DELIVERED TO YOU BEFORE 15 OR 16 WEEKS AFTER PLACEMENT OF AN ORDER AND THAT DELIVERY OF THE NYLON DUCK CLOTH WOULD NOT BE COMPLETED BEFORE 12 OR 13 WEEKS. THE PROBABILITY THAT THE DELIVERY SCHEDULE WOULD BE REVISED WAS DISCUSSED WITH YOU SINCE IT APPEARED THAT A 60-DAY DELIVERY MIGHT BE IMPOSSIBLE TO ACHIEVE. IT WAS STATED THAT IF SUCH A CHANGE WAS MADE IN THE FORM OF FURTHER SOLICITATION YOU SHOULD RECONSIDER YOUR COMMITMENTS IN TERMS OF THE REVISED DELIVERY AND ASSURE THE CONTRACTING OFFICER THAT YOUR COMPANY WOULD BE ABLE TO DELIVER THE END ITEMS WITHIN THE REQUIRED TIME. BY TELEGRAM OF FEBRUARY 4 YOU WERE REQUESTED TO REVIEW YOUR COSTS AND SUBMIT YOUR LOWEST QUOTATION BASED ON A 90-DAY DELIVERY REQUIREMENT. ALTHOUGH YOU SUBMITTED THE NEW PROPOSAL REQUESTED, THE CONTRACTING OFFICER DENIES YOUR CONTENTION THAT HE WAS FURNISHED INFORMATION INDICATING THAT YOU MIGHT BE ABLE TO GET THE FRAMES MORE QUICKLY THAN THE SURVEY INDICATED. SINCE YOU DID NOT DEMONSTRATE THAT YOU WERE CAPABLE OF MEETING THE DELIVERY REQUIREMENT ESTABLISHED FOR THE PROCUREMENT, YOUR COMPANY WAS REJECTED AS A NONRESPONSIBLE PROPONENT.

THE DETERMINATION OF EACH BIDDER'S RESPONSIBILITY IS PRIMARILY A MATTER FOR THE CONTRACTING OFFICER. OUR OFFICE DOES NOT INTERFERENCE IN SUCH DETERMINATIONS UNLESS THEY ARE ARBITRARY OR CAPRICIOUS. WE DO NOT FIND THAT THE DETERMINATION WITH RESPECT TO YOUR COMPANY'S RESPONSIBILITY WAS ARBITRARY OR CAPRICIOUS. THE CONTRACTING OFFICER DECIDED THAT IN VIEW OF THE URGENCY OF THE PROCUREMENT THERE SHOULD BE REASONABLE ASSURANCES THAT DELIVERY WOULD BE ACCOMPLISHED AS REQUIRED. YOU DID NOT PROVIDE HIM WITH ANY EVIDENCE THAT YOUR COMPANY WOULD BE ABLE TO PERFORM TIMELY.

THEREFORE, IN THESE CIRCUMSTANCES, WE MUST CONCLUDE THAT THERE IS NO PROPER BASIS UPON WHICH OUR OFFICE WOULD BE JUSTIFIED IN OBJECTING TO THE REJECTION OF YOUR COMPANY'S BID ON ITEM 1.