B-163967, SEP. 26, 1968

B-163967, SEP. 26, 1968

TO MARK A. CARROLL AND SON, INCORPORATED:

REFERENCE IS MADE TO THE LETTER OF AUGUST 14, 1968, REQUESTING RECONSIDERATION OF OUR DECISION B-163967, JULY 3, 1968, DENYING THE PROTEST OF MARK A. CARROLL AND SON, INCORPORATED, AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER AN INVITATION FOR THE ALTERATION OF THE MODIFICATION/PRECISION MEASUREMENT EQUIPMENT LABORATORY AT OTIS AIR FORCE BASE, MASSACHUSETTS.

BASICALLY YOUR LETTER OF AUGUST 14, 1968, QUESTIONS THE RECOMMENDATION IN THE PREAWARD SURVEY THAT AN AWARD SHOULD NOT BE MADE TO YOUR CONCERN. YOU HAVE BROUGHT TO OUR ATTENTION CERTAIN INFORMATION WITH RESPECT TO THE PRIOR BUSINESS HISTORY OF MARK A. CARROLL AND SON AND BACKGROUND INFORMATION REGARDING THE EDUCATION AND EXPERIENCE OF THE PRESIDENT AND TREASURER OF YOUR CONCERN. YOU REQUEST THAT YOU BE FURNISHED WITH A COMPLETE RECORD OF THE INFORMATION IN THE PREAWARD SURVEY OF YOUR CONCERN.

YOUR LETTER OF AUGUST 14, 1968, ALSO REQUESTS A COPY OF THE PREAWARD SURVEY OF THE SECOND LOW BIDDER.

WITH RESPECT TO THE DETERMINATION NOT TO REFER THE QUESTION OF MARK A. CARROLL AND SON'S RESPONSIBILITY TO THE SMALL BUSINESS ADMINISTRATION UNDER THE AUTHORITY OF ARMED SERVICES PROCUREMENT REGULATION 1-705.4 (C) (IV), YOUR CONTENTION IS THAT NO REAL URGENCY WAS PRESENT WHICH WOULD JUSTIFY THE INVOCATION OF THIS SECTION OF ASPR.

THE CONTENTION AGAIN IS MADE THAT YOUR TELEGRAM OF PROTEST WAS SUBMITTED PRIOR TO AWARD AND THAT THE AIR FORCE VIOLATED ASPR 2-407.9 (B) (2).

IN CONNECTION WITH THE REQUEST THAT YOU BE FURNISHED WITH A COPY OF THE PREAWARD SURVEY OF YOUR CONCERN, YOU ARE ADVISED THAT ASPR 1-907 PROVIDES THAT DATA, INCLUDING INFORMATION OBTAINED FROM A PREAWARD SURVEY, ACCUMULATED FOR PURPOSES OF DETERMINING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR SHALL NOT BE RELEASED OUTSIDE THE GOVERNMENT AND SHALL NOT BE MADE AVAILABLE FOR INSPECTION BY INDIVIDUALS, FIRMS, OR TRADE ORGANIZATIONS. THE LETTER OF APRIL 5, 1968, TO YOU FROM THE PROCURING ACTIVITY ADVISES YOU OF THE ADDRESS OF THE PREAWARD SURVEY ACTIVITY AND ALSO ADVISES THAT THE CONTRACTING OFFICER HAS ASKED THIS ACTIVITY TO PROVIDE YOU WITH DETAILS IF REQUESTED BY YOU.

A REVIEW OF THE INFORMATION IN YOUR LETTER OF AUGUST 14, 1968, DOES NOT ESTABLISH THAT THERE WAS NOT A FACTUAL BASIS FOR THE FINDINGS IN THE PREAWARD SURVEY OR THAT THE INFORMATION IN THE PREAWARD SURVEY WOULD NOT REASONABLY SUPPORT THE CONTRACTING OFFICER'S DETERMINATION THAT YOU WERE NOT A RESPONSIBLE BIDDER.

REGARDING THE DETERMINATION OF THE RESPONSIBILITY OF THE SECOND LOW BIDDER THE CONTRACTING OFFICER HAD SUFFICIENT INFORMATION TO MAKE A DETERMINATION THAT THE SECOND LOW BIDDER WAS A RESPONSIBLE BIDDER; CONSEQUENTLY, NO PREAWARD SURVEY OF THE SECOND LOW BIDDER WAS REQUESTED. IT HAS NOT BEEN SHOWN THAT THE CONTRACTING OFFICER'S DETERMINATION IN THIS REGARD WAS ARBITRARY, CAPRICIOUS OR IN BAD FAITH.

IN REGARD TO THE INVOCATION OF ASPR 1-705.4 (C) (IV) BY THE PROCURING ACTIVITY, THE QUESTION OF WHETHER OR NOT A PROCUREMENT IS URGENTLY REQUIRED IS A MATTER OF JUDGMENT. IN THIS CASE AWARD WAS REQUIRED WITHOUT DELAY SINCE THE LACK OF A PROPER ENVIRONMENTAL CONTROLLED DIMENSIONAL AREA AT OTIS AIR FORCE BASE REQUIRED THIS ACTIVITY TO SEND ALL MATERIAL AND EQUIPMENT REQUIRING DIMENSIONAL CALIBRATION AND CHECKING TO ANOTHER FACILITY AT GREAT EXPENSE. ALSO IT WAS DETERMINED THAT AN AWARD WAS REQUIRED BEFORE THE EXISTING WAGE RATES EXPIRED ON APRIL 8, 1968. BASED ON THE RECORD WE CANNOT SAY THAT THE ADMINISTRATIVE OFFICE ABUSED ITS DISCRETION IN THIS REGARD.

WE HAVE BEEN ADVISED BY THE AIR FORCE THAT THE CONTRACT WITH THE SECOND LOW BIDDER WAS FINALIZED ON APRIL 5, 1968. CONSEQUENTLY, YOUR PROTEST WAS A PROTEST AFTER AWARD AND FOR THE REASONS SET FORTH IN THE PENULTIMATE PARAGRAPH IN OUR DECISION OF JULY 3, 1968, WE DO NOT FIND ANY VIOLATION OF ASPR 2-407.9 (B) (2).

FOR THE ABOVE REASONS OUR DECISION OF JULY 3, 1968, DENYING YOUR PROTEST, IS AFFIRMED.