B-141327, JAN. 7, 1960

B-141327, JAN. 7, 1960

TO THE NEIL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1959, FROM THE LAW FIRM OF FAIRCHILD, FOLEY AND SAMMOND, PROTESTING ON YOUR BEHALF AGAINST THE CONSIDERATION OF A BID SUBMITTED BY CONSOLIDATED DIESEL ELECTRIC CORPORATION TO THE MEMPHIS AIR FORCE DEPOT UNDER INVITATION FOR BIDS NO. 40-604-60-278. IT IS THE CONTENTION OF YOUR ATTORNEYS, IN SUBSTANCE, THAT THE SAID FIRM IS NOT REGULARLY ENGAGED IN THE MANUFACTURER OF THE END PRODUCT, AN AIRCRAFT REFUELER TANK TRUCK, AND THEREFORE IS NOT A QUALIFIED OR RESPONSIBLE BIDDER WITHIN THE MEANING AND INTENT OF NOTE 9 OF THE ABOVE CITED INVITATION.

THE SAID PROVISION, IN PERTINENT PART, STATES THAT---

"BIDDERS MUST BE REGULARLY ENGAGED IN THE BUSINESS COVERED BY THESE SPECIFICATIONS AND POSSESSED OF SATISFACTORY FINANCIAL AND TECHNICAL ABILITY, EQUIPMENT AND AN ORGANIZATION TO INSURE SATISFACTORY COMPLETION OF THE CONTRACT AND MUST HAVE ESTABLISHED A SATISFACTORY RECORD IN THE PAST FOR COMPLETION OF CONTRACTS OF SIMILAR CHARACTER AND EXTENT. THE CONTRACTING OFFICER SHALL BE THE JUDGE OF THE FACTS SUBMITTED IN SUPPORT OF BIDDER'S CLAIM AS TO COMPETENCY. * * *"

THE INSTANT PROCUREMENT COVERS EQUIPMENT NOT HERETOFORE PRODUCED FOR THE GOVERNMENT AND NO DETAILED DRAWINGS AND SPECIFICATIONS WERE AVAILABLE TO BE MADE A PART OF THE BID PROVISIONS. FOR THAT REASON TECHNICAL PROPOSALS, WITHOUT PRICES, WERE SOLICITED FROM APPROXIMATELY THIRTY SOURCES, TO DETERMINE, INITIALLY, WHETHER THESE CONCERNS SUBMITTING PROPOSALS EVIDENCED THE NECESSARY ABILITY TO DESIGN AND PRODUCE A TRUCK WHICH WOULD MEET THE PERFORMANCE REQUIREMENTS OF SPECIFICATIONS MIL-T- 26192A. RIGHT OF THE PROPOSALS RECEIVED WERE FOUND, UPON EVALUATION, TO BE ACCEPTABLE, INCLUDING CONSOLIDATED DIESEL ELECTRIC CORPORATION. THEREAFTER, INVITATIONS FOR BIDS WERE ISSUED TO EIGHT SELECTED SOURCES SEEKING QUOTATIONS ON VARIOUS QUANTITIES OF SUCH TRUCKS. A COMPUTATION OF THE EIGHT BIDS SUBMITTED, BASED UPON THE PRESENT ESTIMATED REQUIREMENTS OF 663 UNITS, SHOWS THE OFFER OF THE ABOVE-NAMED FIRM TO BE THE LOWEST BID RECEIVED BY APPROXIMATELY $300,000.

PURSUANT TO ADMINISTRATIVE OFFICE REGULATIONS, A PREAWARD SURVEY, WAS CONDUCTED TO DETERMINE WHETHER THE LOWEST BIDDER WAS PHYSICALLY AND FINANCIALLY ABLE TO PERFORM THE PROPOSED CONTRACT. THE REPORT PREPARED ON THE BASIS OF SUCH SURVEY DISCLOSES THAT THE SAID CORPORATION POSSESSES ADEQUATE FACILITIES, ENGINEERING AND PRODUCTION CAPABILITIES, AVAILABLE MANPOWER AND SUFFICIENT FINANCIAL STABILITY, AND IS QUALIFIED IN EVERY RESPECT TO PERFORM THE CONTEMPLATED CONTRACT. BASED UPON THE FACTS DISCLOSED BY THE SUBJECT REPORT THE CONTRACTING OFFICER CONCLUDED THAT THE CONSOLIDATED DIESEL ELECTRIC CORPORATION MET ALL OF THE REQUIREMENTS OF A RESPONSIBLE BIDDER WITHIN THE PURVIEW OF ABOVE-QUOTED TERMS OF THE INVITATION. THE STAFF JUDGE ADVOCATE, MEMPHIS AIR FORCE DEPOT, AND THE ASSISTANT DEPUTY FOR PROCUREMENT AND PRODUCTION, OFFICE OF THE SECRETARY OF THE AIR FORCE, CONCUR WITH THE CONTRACTING OFFICER'S FINDINGS.

WITH RESPECT TO THE QUESTION WHETHER THE LOW BIDDER PROPERLY MAY BE CONSIDERED AS BEING REGULARLY ENGAGED, OR EXPERIENCED, IN THE PRODUCTION OF THE DESIRED REFUELER TRUCK, IT IS NOTED THAT THE SUBJECT EQUIPMENT MUST INCORPORATE TECHNICAL FEATURES NOT HERETOFORE PROCURED. HOWEVER, THE SUCCESSFUL BIDDER HAS FURNISHED TO THE GOVERNMENT GROUND POWER, PUMPING, HYDRAULIC AND FUEL TESTING EQUIPMENT, AS WELL AS OTHER SPECIAL PURPOSE VEHICLES. IN VIEW THEREOF, AND HAVING REGARD FOR THE FACT THAT THE PERFORMANCE SPECIFICATIONS REQUIRE THE DESIGN AND FABRICATION OF NEW COMPONENT ASSEMBLIES, THE INCLUSION OF CONSOLIDATED DIESEL ELECTRIC CORPORATION AS A RESPONSIBLE BIDDER, AMONG THE OTHER SOURCES OF SUPPLY, APPEARS WARRANTED.

QUESTIONS PERTAINING TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR, PRIMARILY, ARE FOR DETERMINATION BY THE PROCUREMENT AGENCY INVOLVED, AND IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH, OR THE LACK OF ANY REASONABLE BASIS FOR A PARTICULAR FINDING, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO SUCH DETERMINATION. IN THIS CASE, WE FEEL THAT THE ADMINISTRATION FINDINGS THAT THE LOW BIDDER WAS QUALIFIED CONSTITUTED A BONA FIDE DETERMINATION ADEQUATELY SUPPORTED BY SUBSTANTIAL EVIDENCE.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE PROTEST OF YOUR ATTORNEYS FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING THE ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE.