B-141428, JAN. 19, 1960

B-141428, JAN. 19, 1960

TO MANHATTAN LIGHTING EQUIPMENT CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1959, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. IFB-155-/7-1/-615-60 ISSUED ON SEPTEMBER 18, 1959, BY THE GENERAL STORES SUPPLY OFFICE, DEPARTMENT OF THE NAVY.

THE INVITATION, OPENED ON OCTOBER 6, 1959, REQUESTED BIDS FOR FURNISHING A QUANTITY OF 300 HAND SLEDGE HAMMERS, AMONG OTHER ITEMS. YOU SUBMITTED A BID OF $3.379 EACH OR A TOTAL OF $1,013.70, LESS A DISCOUNT OF 1 PERCENT FOR PAYMENT WITHIN 30 CALENDAR DAYS. THE UNIT RAIL ANCHOR CORPORATION OFFERED TO FURNISH THE HAMMERS AT $3.46 EACH OR A TOTAL OF $1,038, LESS A DISCOUNT OF 2 PERCENT FOR PAYMENT WITHIN 20 CALENDAR DAYS. HOWEVER, YOUR BID WAS REJECTED BY THE CONTRACTING OFFICER ON THE BASIS THAT YOU WERE A NON-RESPONSIBLE BIDDER. THEREAFTER, ON NOVEMBER 24, 1959, AWARD OF THE ITEM WAS MADE TO THE UNIT RAIL ANCHOR CORPORATION IN THE TOTAL AMOUNT OF $1,038.

YOU CONTEND THAT AS LOW BIDDER YOU WERE ENTITLED TO THE AWARD, ESPECIALLY SINCE THE DEPARTMENT OF LABOR, WAGE AND HOUR AND PUBLIC CONTRACTS DIVISIONS, HAD RULED ON NOVEMBER 16, 1959, THAT UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT YOUR FIRM IS QUALIFIED AS A REGULAR DEALER IN GENERAL HARDWARE AND SMALL HAND TOOLS AND HARDWARE COMMODITIES OF A COMMERCIAL NATURE. FURTHER, YOU TAKE EXCEPTION TO THE DETERMINATION MADE BY THE CONTRACTING OFFICER THAT YOUR FIRM IS NOT A RESPONSIBLE BIDDER.

WHILE YOUR FIRM MAY HAVE BEEN QUALIFIED AS A REGULAR DEALER INHAND SLEDGE HAMMERS BY VIRTUE OF THE DETERMINATION MADE BY THE DEPARTMENT OF LABOR, YOUR NON-RESPONSIBILITY WAS DETERMINED ON THE BASIS OF YOUR PAST PERFORMANCE RECORD. HENCE, THE REGULAR DEALER STATUS OF YOUR FIRM WAS NOT DETERMINATIVE OF YOUR QUALIFICATIONS UNDER THE INSTANT INVITATION.

AS YOU HAVE BEEN ADVISED PREVIOUSLY WITH RESPECT TO SIMILAR MATTERS CONSIDERED BY OUR OFFICE AT YOUR REQUEST, THE FUNCTION OF DETERMINING WHETHER A PARTICULAR PERSON OR FIRM IS A RESPONSIBLE BIDDER, WITHIN THE INTENT OF MEANING OF THE ADVERTISING STATUTES OF THE UNITED STATES, AND THUS ELIGIBLE TO RECEIVE AN AWARD OF GOVERNMENT CONTRACTS, IS ESSENTIALLY AN ADMINISTRATIVE ONE INVOLVING THE DETERMINATION OF SUCH FACTUAL ISSUES AS THE BIDDER'S REPUTATION FOR PAST PERFORMANCE, HIS OVER-ALL EXPERIENCE IN THE PARTICULAR INDUSTRY INVOLVED, HIS PLANT FACILITIES AND EQUIPMENT, INTEGRITY, FINANCIAL RESPONSIBILITY, AND LIKE CONSIDERATIONS, SUCH AS CAN BE DETERMINED ONLY BY, AND TO THE SATISFACTION OF, THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT ACTIVITY DIRECTLY CONCERNED. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; 14 COMP. GEN. 305; 34 ID. 86.

THE MATTER OF YOUR RESPONSIBILITY IN THIS INSTANCE WAS THE SUBJECT OF AN EXHAUSTIVE INVESTIGATION BY THE DEPARTMENT. THE DETERMINATION OF NON- RESPONSIBILITY IS SATISFACTORILY SUPPORTED BY THE RECORD WHICH IS REPLETE WITH INSTANCES OF PRIOR UNSATISFACTORY PERFORMANCE. IT APPEARS THAT 81.8 PERCENT OF ALL CONTRACTS AWARDED TO YOU DURING THE PERIOD JULY 1956 THROUGH JULY 1958 WERE EITHER DELINQUENT IN DELIVERY OR WERE TERMINATED FOR DEFAULT. IN CONNECTION WITH 21 PURCHASE ORDERS ISSUED BY THE ELECTRONICS SUPPLY OFFICE, GREAT LAKES, ILLINOIS, DURING THE FISCAL YEAR 1959, YOU WERE 56 DAYS LATE IN DELIVERY ON ONE ORDER, 105 DAYS ON ANOTHER, AND 78 DAYS ON A THIRD. YOU WERE OTHERWISE DELINQUENT TO SOME DEGREE IN DELIVERY UNDER ELEVEN OTHER PURCHASE ORDERS. MOREOVER, THE DELAYS ENCOUNTERED IN CONNECTION WITH THE PERFORMANCE OF CONTRACT NO. N155-47462 WERE DUE, NOT AS YOU ALLEGE TO THE STEEL STRIKE, BUT, TO OTHER CAUSES AS SET OUT IN LETTER OF DECEMBER 2, 1959, FROM GENERAL ELECTRIC TO YOU.

ACCORDINGLY, WE FIND NO BASIS TO OBJECT TO THE AWARD MADE UNDER THE INSTANT INVITATION.