B-143381, AUG. 15, 1960

B-143381, AUG. 15, 1960

TO MR. DAVID A. WELSH:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1960, AND A LETTER FROM YOUR ATTORNEY DATED JULY 1, PROTESTING THE ACTION TAKEN BY THE UNITED STATES WEATHER BUREAU, DEPARTMENT OF COMMERCE, IN CONNECTION WITH INVITATION TO BID NO. WB-112.

THE RECORD SHOWS THAT WEATHER BUREAU INVITATION TO BID NO. 112-60 WAS ISSUED ON MAY 17, 1960, WITH AN OPENING DATE OF JUNE 16, 1960. THE INVITATION REQUESTED QUOTATIONS FOR "PORTABLE RADIOSONDE RECORDERS," TO BE MANUFACTURED IN COMPLIANCE WITH WEATHER BUREAU SPECIFICATIONS 451.1003, REVISED MAY 18, 1959, AND SCHEDULE "A" OF THE SAME DATE. IN EVALUATING THE RESPONSES TO THIS INVITATION, IT WAS THE CONSIDERED OPINION OF BOTH THE TECHNICAL STAFF AND THE CONTRACTING OFFICER OF THE WEATHER BUREAU THAT YOUR CORPORATION WOULD HAVE TO BE PLACED IN THE CATEGORY OF A NON- RESPONSIBLE BIDDER, BASED PRIMARILY UPON ITS RECORD OF PAST PERFORMANCE WITH RESPECT TO A CONTRACT RECENTLY COMPLETED FOR THE BUREAU. SPECIFICALLY, THE BUREAU ADVISES THAT THERE HAS BEEN DECIDED LACK OF TECHNICAL COMPETENCY IN FULFILLING THE REQUIREMENTS COVERED BY WEATHER BUREAU CONTRACT CWB-8675, JUST COMPLETED. IT STATES THAT THROUGHOUT THE TERM OF THE LATTER CONTRACT IT WAS NECESSARY ON NUMEROUS OCCASIONS FOR THE ENGINEERING STAFF OF THE WEATHER BUREAU TO ASSIST ENGINEERING ENTERPRISES, INC. (NOW ENGENCO, INC.) IN FULFILLING THE REQUIREMENT OF THE ITEMS TO BE SUPPLIED. IN A COMMUNICATION DATED JULY 13, 1960, THE ADMINISTRATIVE OFFICIALS REPORTED, IN PERTINENT PART, AS FOLLOWS:

"THIS CONTRACT REQUIRED CONTINUED MONITORING ON THE PART OF THE WEATHER BUREAU TO ENABLE THE CONTRACTOR TO MEET THE SPECIFICATION REQUIREMENTS. THIS MONITORING EXTENDED OVER A PERIOD OF APPROXIMATELY FOUR YEARS AND TWO MONTHS, FROM MAY 1956 TO THE CURRENT MONTH. THE FIRST PREPRODUCTION MODEL OF THE RECORDER WAS RECEIVED FROM THE CONTRACTOR ABOUT MAY 1, 1956 AND PLACED ON TEST IN THIS LABORATORY MAY 4, 1956. THE PREPRODUCTION SAMPLE WAS FOUND DEFICIENT IN SEVERAL MAJOR CATEGORIES. AS EVIDENCED BY THE ATTACHED MEMORANDUM, THE RE TRANSMITTER AND RECORDER WERE RE-SUBMITTED FROM TIME TO TIME DURING THE PERIOD, WITH THE PREPRODUCTION SAMPLE OF THE RECORDER BEING ACCEPTED AS LATE AS FEBRUARY 3, 1960.

"IN AN EFFORT TO ASSIST THE CONTRACTOR, A DIVISION WAS MADE PERMITTING DELIVERY OF THE RETRANSMITTERS IN ORDER THAT PAYMENT COULD BE MADE FOR THESE UNITS PRIOR TO COMPLETION OF THE RECORDER PART OF THE CONTRACT.

"BECAUSE OF THE BURDEN PLACED UPON OUR LABORATORY IN TESTING AND CHECKING RESUBMISSION OF THE RECORDER, IT WAS SUGGESTED BY THIS OFFICE THAT INSPECTION OF THE RECORDERS BE ACCOMPLISHED BY A DISINTERESTED THIRD PARTY.

"THE ELECTRICAL TESTING LABORATORIES, 2 EAST END AVENUE IN NEW YORK CITY WAS INDICATED BY THIS OFFICE AS A LABORATORY SATISFACTORY TO THE GOVERNMENT. THE CONTRACTOR AVAILED HIMSELF OF THIS SUGGESTION AND THE RECORDERS WERE ACCORDINGLY TESTED AND INSPECTED BY THE ELECTRICAL TESTING LABORATORY. THE REPORTS CONSTITUTED THE BASIS FOR ACCEPTANCE BY THE WEATHER BUREAU.

"IT IS BELIEVED THE ACTION OF THIS OFFICE IN REFRAINING FROM RECOMMENDING AN AWARD TO THIS COMPANY FOR FUTURE CONTRACTS IS WELL JUSTIFIED ON THE BASIS OF THE COMPANY'S RECORD WHICH IN OUR OPINION CLEARLY INDICATES A LACK OF TECHNICAL PROFICIENCY. WHILE THIS COMPANY HAS HAD UPWARD OF FIVE YEARS EXPERIENCE, TO OUR KNOWLEDGE, LITTLE IN THE WAY OF ADVANCEMENT IN TECHNICAL PROFICIENCY HAS BEEN ACCOMPLISHED. AS LATE AS JANUARY 1960, AS THE TEST REPORT OF ELECTRICAL TESTING LABORATORIES INDICATES, FIVE RECORDERS OF A QUANTITY OF 15 FAILED TO MEET THE SPECIFICATION REQUIREMENTS. THESE UNITS HAD TO BE REWORKED AND RESUBMITTED WHICH FACT SUPPORTS THE CONTENTION THAT THE COMPANY STILL LACKS PROPER ENGINEERING AND MANAGERIAL CAPACITY.'

WITH RESPECT TO THE CURRENT INVITATION FOR BID, THE BUREAU CONCLUDED AS FOLLOWS:

"TECHNICAL ABILITY DEFINITELY IS A FACTOR FOR PASSING OVER ENGENCO, INC. FOR THE RECORDERS LISTED IN WEATHER BUREAU INVITATION FOR BID 112 60. IS TRUE THAT THE RECORDERS DELIVERED UNDER CONTRACT CWB-8675 ARE OF A MORE COMPLICATED DESIGN, HOWEVER, CONSIDERING THE BETTER THAN FOUR YEARS REQUIRED TO ACCOMPLISH THIS FULFILLMENT, THE TECHNICAL RELIABILITY FACTOR MUST, OF COURSE, BE EVALUATED AND RECOGNIZED. THE UNITS TO BE DELIVERED AS A RESULT OF THIS INVITATION TO BID WB112-60 WILL BE ABOARD SHIPS AT SEA AND LIMITED MAINTENANCE FACILITIES WILL BE AVAILABLE. AS A RESULT, RESPONSIBILITY EVALUATION MUST RECOGNIZE THE INADEQUACIES DISPLAYED IN THE PREVIOUS ASSOCIATION BETWEEN ENGINEERING ENTERPRISES (ENGENCO, INC.) AND THE WEATHER BUREAU.

"IN CONCLUSION, THE WEATHER BUREAU CONTRACTING OFFICER COULD NOT IN ALL FAIRNESS TO THE BEST INTERESTS OF THE GOVERNMENT CONSIDER ENGENCO, INC. AS OTHER THAN A NONRESPONSIVE BIDDER BASED ON THE INFORMATION INCLUDED HEREIN AND ATTACHED HERETO.'

THE WEATHER BUREAU FURTHER ADVISED THAT IT HAD EXPERIENCED CONSIDERABLE DIFFICULTY IN ATTEMPTING TO OBTAIN COMPLETE ADHERENCE TO SPECIFICATIONS AS SPELLED OUT IN ITS PREVIOUS CONTRACT WITH YOUR FIRM; AND THAT IN ORDER TO COMPLETE THIS CONTRACT, AN ADMINISTRATIVE DETERMINATION WAS MADE BY THE CONTRACTING OFFICER TO WAIVE CERTAIN IRREGULARITIES CAUSED BY YOUR COMPANY'S COMPLETE DISREGARD FOR SPECIFICATIONS.

THE DETERMINATION OF THE RESPONSIBILITY OF BIDDERS IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICE CONCERNED AND, IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS FOR SUCH DETERMINATION, WE ARE NOT IN A POSITION TO OBJECT TO THE ACTION TAKEN THEREON. CONTRACTING OFFICERS OF THE FEDERAL GOVERNMENT HAVE THE DUTY TO SELECT THE CONTRACTOR MOST ADVANTAGEOUS TO THE GOVERNMENT, AND ADVANTAGE IS NOT MEASURED EXCLUSIVELY IN TERMS OF PRICE; IT INCLUDES OTHER FACTORS SUCH AS JUDGMENT, SKILL, ABILITY, CAPACITY AND INTEGRITY. O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; 36 COMP. GEN. 42. THE FINAL SELECTION OF A CONTRACTOR INVOLVES DISCRETION AND HAS BEEN SAID TO BE NOT SUBJECT TO REVIEW BY THE JUDICIAL BRANCH OF THE GOVERNMENT. FRIEND V. LEE, 95 U.S.APP.D.C. 224, 221 F.2D 96.

UPON THE BASIS OF THE FACTS REPORTED, AND IN VIEW OF THE CRITICAL NATURE OF THE WORK IN WHICH THE EQUIPMENT IS TO BE USED, WE PERCEIVE NO PROPER BASIS FOR TAKING ANY ACTION IN CONNECTION WITH THE REJECTION OF YOUR BID UNDER INVITATION NO. 112-60.