B-148072, MAY 3, 1962

B-148072, MAY 3, 1962

TO MR. LOUIS E. GOYETTE, VICE PRESIDENT, A.B.C. ALUMINUM MFG.CORP.:

REFERENCE IS MADE TO YOUR LAST LETTER OF APRIL 3, 1962, AND THE SEVERAL LETTERS THAT PRECEDED IT, CONCERNING YOUR PROTEST AGAINST THE CONTRACTING OFFICER'S DISREGARD OF BIDS SUBMITTED BY YOUR FIRM IN RESPONSE TO THE REQUEST FOR QUOTATIONS COVERING MGSA-PRC-4789-62 AND TO THE INVITATIONS NUMBERED QM (MGS) 44-193-62-181 AND QM (MGS) 44-193 62-206.

WITH RESPECT TO THE REQUEST FOR QUOTATIONS COVERING MGSA-PRC-4789 62, YOU STATE THAT ON DECEMBER 19, 1961, THE ASSISTANT BUYER AT THE CONTRACTING FACILITY PLACED AN ORDER BY TELEPHONE WITH ONE OF YOUR PERSONNEL AND THAT YOU WERE THEREAFTER TOLD BY TELEPHONE BY HIM "THAT HIS BOSS WILL NOT PERMIT ANY ORDERS TO BE SENT TO US" AND TO CANCEL THE ORDER. HOWEVER, THE ASSISTANT BUYER DENIES THAT ANY ORDER WAS EVER PLACED WITH ANYONE IN YOUR FIRM FOR THE SUBJECT PROCUREMENT. THE CALL THAT WAS MADE ON DECEMBER 19 WAS TO SOLICIT A PRICE FOR AN ADDITIONAL UNIT THAT WAS ADDED TO THE ORIGINAL PROCUREMENT FOR DELIVERY TO THE COLUMBUS GENERAL DEPOT. THEREFORE, WHEN THE FACILITY RECEIVED A LETTER FROM YOU DATED DECEMBER 20, 1961, ACKNOWLEDGING RECEIPT OF AN ORDER FROM THE ASSISTANT BUYER, HE CALLED YOU BY TELEPHONE AND ADVISED THAT NO ORDER HAD BEEN PLACED AND THAT AN AWARD WOULD BE MADE TO THE LOW BIDDER. THE OFFICIAL RECORD SHOWS THAT THE LOW BIDDER FOR THIS PROCUREMENT WAS THE EMECO CORPORATION. THE PERSON WITH WHOM THE ASSISTANT BUYER CONVERSED WHEN HE MADE THE FIRST TELEPHONE CALL EVIDENTLY MISUNDERSTOOD THE PURPOSE OF THE CALL. IN THE CIRCUMSTANCES IT APPEARS THAT THE BID FROM YOUR FIRM WAS DISREGARDED FOR THE VALID REASON THAT ITS PRICE DISQUALIFIED IT FROM CONSIDERATION.

WITH RESPECT TO INVITATIONS 181 AND 206 UNDER MAJOR SERIAL QM (MGS) 44- 193-62, YOUR PARTICULAR PROTEST IS DIRECTED AGAINST THE DETERMINATION BY THE CONTRACTING OFFICER THAT YOUR FIRM IS NOT A RESPONSIBLE BIDDER. YOU STATE THAT THE CONTRACTING OFFICER HAS PLACED A VEIL OF SECRECY AROUND THE DETERMINATION AND YOU HAVE BEEN UNABLE TO ASCERTAIN THE SPECIFIC REASONS THAT PROMPTED THAT CONCLUSION. YOU POINT OUT THAT OTHER GOVERNMENT AGENCIES CONSIDER YOUR FIRM TO BE RESPONSIBLE BECAUSE IT CONTINUES TO RECEIVE AWARDS FROM THEM. FURTHER, YOU SUGGEST THAT THE FACT THAT IT CONTINUES TO RECEIVE INVITATIONS FOR BIDS FROM THE IMMEDIATE AGENCY SHOWS THAT IT CONSIDERS YOUR FIRM TO BE RESPONSIBLE AND THAT THE CONTRACTING OFFICER MUST HAVE BEEN ARBITRARY IN HIS DETERMINATIONS UNDER INVITATIONS 181 AND 206, PARTICULARLY SINCE THE INVESTIGATOR THAT MADE THE PREAWARD SURVEY OF YOUR COMPANY PLANT SUPPOSEDLY ADVISED YOU AT THAT TIME THAT YOUR FIRM WAS COMPLETELY QUALIFIED TO PERFORM. IN ADDITION, YOU STATE THAT YOU WERE TOLD BY PERSONNEL IN THE CONTRACTING OFFICE THAT IF A DECISION ADVERSE TO YOUR FIRM WOULD BE REACHED, YOU WOULD BE GRANTED A HEARING AND AN OPPORTUNITY TO REBUT THE FINDINGS. YOU STATE THAT IN RELIANCE UPON THIS ADVICE, YOU GRANTED PERIODIC EXTENSIONS IN TIME EXTENDING THE TIME FOR CONSIDERATION OF YOUR COMPANY'S BIDS FOR FOUR MONTHS AND IN ANTICIPATION THAT AWARD WOULD ULTIMATELY BE MADE TO IT, YOU REFRAINED FROM BIDDING ON INVITATIONS FROM OTHER AGENCIES TO KEEP THE PLANT IN READINESS.

AT THE TIME THE CONTRACTING OFFICER MADE A DETERMINATION THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER HE HAD AN EXTENSIVE RECORD BEFORE HIM FOR CONSIDERATION. WHILE YOU HAVE STATED THAT THE SURVEYOR WHO MADE THE PREAWARD SURVEY TOLD YOU THAT YOUR FIRM WAS QUALIFIED, THE REPORT FURNISHED BY THE SURVEYOR TO THE CONTRACTING OFFICER RECOMMENDED THAT NO AWARD BE MADE TO YOUR FIRM ON THE GROUND THAT IT WAS NOT A DEPENDABLE SOURCE OF SUPPLY CITING INADEQUATE AND POORLY MAINTAINED EQUIPMENT AND FACILITIES, INEXPERIENCED PERSONNEL AND LACK OF COMMITMENTS FOR MATERIAL. FURTHER, THE SURVEYOR REPORTED THAT NATHAN CARB WAS PRESENT DURING THE SURVEY AND THAT HE ANSWERED MOST OF THE QUESTIONS DIRECTED TO YOU AND THAT HE ALONE CONDUCTED THE SURVEYOR THROUGH THE PLANT, BUT REQUESTED THAT HIS NAME NOT BE INCLUDED IN THE SURVEY. AT THE CONCLUSION OF THE SURVEY, MR. CARB IS REPORTED TO HAVE ATTEMPTED TO GIVE THE SURVEYOR MONEY TO BUY SOMETHING "FOR HIS MOTHER.' MR. CARB, ALONG WITH CARB MANUFACTURING COMPANY, IS ADMINISTRATIVELY DEBARRED FROM RECEIVING GOVERNMENT CONTRACTS BECAUSE OF A JUDGMENT IN A CIVIL CASE UNDER THE FALSE CLAIMS ACT REFLECTING UNFAVORABLY UPON BUSINESS INTEGRITY. IN A STATEMENT MADE TO THE SURVEYOR YOU IDENTIFIED MR. CARB AS THE SALES MANAGER OF YOUR FIRM.

ALSO BEFORE THE CONTRACTING OFFICER WERE PREAWARD SURVEYS MADE IN CONNECTION WITH EARLIER PROCUREMENTS. THOSE SURVEYS ALSO INCLUDED RECOMMENDATIONS AGAINST AWARD AS WELL AS INFORMATION THAT SHOWS THAT YOUR FIRM OCCUPIES THE SAME PREMISES AND UTILIZES THE SAME FACILITIES AND PERSONNEL AS THE CARB MANUFACTURING COMPANY AND THAT NATHAN CARB HAD AN UNUSUALLY ACTIVE INTEREST AND CONTROL IN YOUR COMPANY.

STILL FURTHER, THE CONTRACTING OFFICER HAD BEFORE HIM COPIES OF OUR DECISIONS B-143635, SEPTEMBER 20, 1960, AND B-138155, FEBRUARY 12, 1959, WHEREIN DECISIONS OF OTHER CONTRACTING OFFICERS REJECTING YOUR COMPANY'S BIDS FOR LACK OF RESPONSIBILITY WERE SUSTAINED.

IN ADDITION, THE CONTRACTING OFFICER SUBMITTED THE MATTER FOR REVIEW BY HIS GENERAL COUNSEL AND RECEIVED FROM HIM A RECOMMENDATION THAT YOUR FIRM BE CONSIDERED NOT RESPONSIBLE.

ON THE BASIS OF THE INFORMATION BEFORE HIM, THE CONTRACTING OFFICER MADE A DETERMINATION UNDER THE PROVISIONS OF ASPR 1-903 THAT YOUR FIRM WAS NOT RESPONSIBLE AND THEREFORE NOT ENTITLED TO AN AWARD UNDER THE SUBJECT INVITATIONS.

THE DETERMINATION AND THE PROCEDURES EMPLOYED IN ASCERTAINING RESPONSIBILITY IS A MATTER LARGELY OF ADMINISTRATIVE DISCRETION. HOWEVER, WHILE WE COULD NOT CONDONE ANY UNNECESSARY SECRECY IN THE ADMINISTRATIVE HANDLING OF A PROCUREMENT NOR ANY FAILURE TO ACCORD YOU A HEARING IF YOU WERE PROMISED ONE (AND IN CONNECTION WITH THE LAST STATEMENT THE CONTRACTING OFFICER DENIES THAT YOU WERE EVER INFORMED THAT YOU WOULD BE GIVEN A HEARING AND AN OPPORTUNITY TO REFUTE ANY ADVERSE INFORMATION) REVIEW OF THESE MATTERS BY OUR OFFICE IS LIMITED MOSTLY TO CONSIDERATION WHETHER THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT THE CONTRACTING OFFICER'S DETERMINATION.

AS THE DETERMINATION OF RESPONSIBILITY IS A MATTER OF DISCRETION, AND AS THE DISCRETION OF DIFFERENT MEN WILL REQUIRE THEM TO REACH DIFFERENT CONCLUSIONS ON THE SAME EVIDENCE OR SHADES OF THE SAME EVIDENCE, IT DOES NOT STRIKE US AS UNUSUAL THAT OTHER CONTRACTING OFFICERS MAY HAVE REACHED CONCLUSIONS CONTRARY TO THE IMMEDIATE OFFICER. OF COURSE, IT MAY BE, TOO, THAT THOSE OTHER CONTRACTING OFFICERS DID NOT HAVE THE BENEFIT OF AS COMPLETELY DEVELOPED A RECORD AS THE IMMEDIATE CONTRACTING OFFICER HAD BEFORE HIM FOR CONSIDERATION. BUT, IN ANY EVENT, AS WAS STATED IN 39 COMP. GEN. 468, AT PAGE 472, "DETERMINATIONS BY EACH AGENCY IN CONNECTION WITH EACH AWARD MUST BE JUDGED UPON THEIR INDIVIDUAL MERITS AND THE MOST THAT CAN BE REQUIRED IN ANY CASE IS THAT THE DETERMINATION MADE BY BASED UPON SUBSTANTIAL EVIDENCE.'

IT IS UNFORTUNATE IF, AS YOU SAY, YOU REFRAINED FROM BIDDING ON OTHER PROCUREMENTS IN ANTICIPATION THAT YOU WOULD RECEIVE AWARDS UNDER INVITATIONS 181 AND 206; HOWEVER, THE OPTIONS THAT YOU EXTENDED FOR THE CONSIDERATION OF YOUR COMPANY'S BIDS WERE VOLUNTARY ON YOUR PART AND IF YOU SERIOUSLY THOUGHT THAT YOU COULD NOT AFFORD TO EXTEND THEM, YOU WERE FREE TO REFUSE TO ISSUE SUCH EXTENSIONS WHEN REQUESTS WERE MADE FOR THEM. BUT THE FACT THAT A BIDDER MAY HAVE EXTENDED OPTIONS AND KEPT ITS PLANT IDLE IN ANTICIPATION OF AN AWARD IS ENTIRELY AT THE BIDDER'S DISCRETION AND CANNOT OBLIGATE THE GOVERNMENT TO MAKE AN AWARD.

ALSO, IT SHOULD BE NOTED THAT THE FACT THAT ANY AGENCY ISSUES AN INVITATION FOR BIDS TO YOUR FIRM DOES NOT MEAN THAT A DETERMINATION HAS BEEN MADE IN THE AGENCY THAT YOUR FIRM IS RESPONSIBLE AS ORDINARILY THE RESPONSIBILITY OF A BIDDER IS NOT ASCERTAINED UNTIL AFTER ALL BIDS ARE RECEIVED AND OPENED.

IN THE IMMEDIATE CASE, UPON REVIEW OF THE RECORD AS SUMMARIZED ABOVE, IT APPEARS THAT THE CONTRACTING OFFICER HAD A SUBSTANTIAL BASIS FOR THE CONCLUSION THAT YOUR FIRM WAS NOT RESPONSIBLE. ACCORDINGLY, THE ACTION TAKEN BY HIM WILL NOT BE DISTURBED.