B-151543, JAN. 17, 1964

B-151543, JAN. 17, 1964

TO NUCLEAR SUPPLY AND SERVICE COMPANY:

WE REFER TO YOUR LETTER DATED OCTOBER 11, 1963, REQUESTING REVIEW OF OUR DECISION B-151543, OCTOBER 9, 1963. THIS DECISION WAS IN CONNECTION WITH INVITATION FOR BIDS NO. AMC-070-63-173 ISSUED BY THE ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS, ON FEBRUARY 27, 1963, FOR THE PROCUREMENT OF A SILICONE DIODIDE RECTIFIER, AND IN OUR DECISION WE CONCLUDED THAT WE WOULD NOT QUESTION THE RECOMMENDATION IN A PRE AWARD SURVEY THAT AWARD SHOULD NOT BE MADE TO YOU.

YOU HAVE ALLEGED THAT THE PRE-AWARD SURVEY OF NUCLEAR SUPPLY AND SERVICE COMPANY WAS CONDUCTED IN AN UNUSUAL AND IMPROPER MANNER. HOWEVER, WE FIND NO BASIS FOR YOUR OBJECTION IN THIS REGARD. IT IS TRUE THAT THE CONTACTS WITH YOU WERE PRIMARILY BY TELEPHONE; HOWEVER, THIS WAS THE MOST FEASIBLE MODE OF COMMUNICATION AVAILABLE AS THE ADDRESS LISTED IN YOUR BID AS YOUR PLACE OF BUSINESS IS AN ANSWERING SERVICE. IN THIS REGARD THE INITIAL TELEPHONE CONTACTS WITH YOU AND THE FINANCIAL STATEMENTS FURNISHED BY YOU DID NOT SATISFY THE PHILADELPHIA PROCUREMENT DISTRICT AS TO YOUR ABILITY TO FURNISH THE ITEMS SPECIFIED IN THIS PROCUREMENT; CONSEQUENTLY, THE PHILADELPHIA PROCUREMENT DISTRICT ALSO ATTEMPTED TO COMPILE INFORMATION ON YOUR SUPPLIER INDICATED IN YOUR BID TO BE GENERAL NUCLEAR CORPORATION. INVESTIGATION OF YOUR SUPPLIER BY THE PHILADELPHIA PROCUREMENT DISTRICT AND THE NEW YORK PROCUREMENT DISTRICT DISCLOSED THAT YOUR SUPPLIER'S ADDRESS AT 550 FIFTH AVENUE, NEW YORK, NEW YORK, WAS OCCUPIED BY AN ANSWERING SERVICE AND THAT THERE WAS NO TELEPHONE LISTING FOR GENERAL NUCLEAR CORPORATION AT 4360 BULLARD AVENUE, NEW YORK, NEW YORK, THE ADDRESS OF YOUR SUPPLIER LISTED IN YOUR BID. IT SHOULD BE NOTED THAT YOU HAVE INDICATED THAT YOU ARE A DEALER AND THAT YOU WOULD SUBCONTRACT 100 PERCENT OF THE MANUFACTURE OF THE ITEMS IN THIS PROCUREMENT. YOUR BID INDICATED THAT YOUR SHIPPING POINT FOR THE ITEMS WOULD BE 4360 BULLARD AVENUE, NEW YORK, NEW YORK.

YOU HAVE ALSO ALLEGED THAT THE GOVERNMENT HAD NO RIGHT TO ASCERTAIN THE QUALIFICATIONS OF YOUR PROPOSED SUPPLIER IN DETERMINING YOUR ABILITY TO FURNISH THE ITEMS SPECIFIED IN THIS PROCUREMENT. TO SUPPORT THIS CONTENTION YOU HAVE CITED B-149781, OCTOBER 29, 1962, IN WHICH WE MENTIONED THE GENERAL STATEMENT IN 38 COMP. GEN. 778, 780, THAT A PROCURING ACTIVITY MAY NOT EVALUATE THE RESPONSIBILITY OF A BIDDER ON THE BASIS OF THE QUALIFICATIONS OF HIS PROPOSED SUBCONTRACTOR UNLESS THE APPLICABLE INVITATION GIVES THE PROCURING ACTIVITY THE RIGHT TO APPROVE OR DISAPPROVE PROPOSED SUBCONTRACTORS. THIS GENERAL STATEMENT FROM 38 COMP. GEN. 778 HAS RECEIVED SUBSEQUENT CONSIDERATION BY OUR OFFICE IN A RECENT DECISION, B-152515, JANUARY 10, 1964, WHICH IN MANY RESPECTS IS ANALOGOUS TO YOUR SITUATION. THERE WE POINTED OUT THAT THE PROCURING ACTIVITY COULD DETERMINE IF A DEALER HAD A FIRM COMMITMENT WITH A SUPPLIER IN A SITUATION WHERE THE PRE-AWARD SURVEY WAS SOMEWHAT UNFAVORABLE AS TO THE QUALIFICATIONS OF THE DEALER AND WHERE UNFINISHED MATERIALS WERE TO BE WHOLLY MANUFACTURED TO SPECIFICATIONS BY THE SUPPLIER, NOTWITHSTANDING THAT THE INVITATION DID NOT CONTAIN A CLAUSE GIVING THE PROCURING ACTIVITY THE RIGHT TO APPROVE OR DISAPPROVE SUBCONTRACTORS. THIS RULE WOULD BE EQUALLY APPLICABLE TO MAKE A DETERMINATION AS TO YOUR ABILITY TO PERFORM; YOUR BID INDICATED THAT YOU WERE A DEALER; AND THAT YOUR SUPPLIER WOULD MANUFACTURE THE ITEMS IN THIS PROCUREMENT TO SPECIFICATIONS. IN THESE CIRCUMSTANCES THE PROCURING ACTIVITY COULD PROPERLY ASCERTAIN THE QUALIFICATIONS OF YOUR SUPPLIER. AS THE PHILADELPHIA PROCUREMENT DISTRICT AND THE NEW YORK PROCUREMENT DISTRICT COULD NOT LOCATE THE PLANT AND FACILITIES OF YOUR SUPPLIER AFTER REASONABLE ATTEMPTS IN THIS REGARD WE FIND NO BASIS TO QUESTION THE CONCLUSION IN THE PRE-AWARD SURVEY THAT YOUR ABILITY TO PERFORM COULD NOT BE EVALUATED AND IN THESE CIRCUMSTANCES YOUR BID COULD PROPERLY BE REJECTED.

MOREOVER, TO FURTHER SUBSTANTIATE THE DOUBTS REGARDING THE QUALIFICATIONS OF YOUR PROPOSED SUPPLIER WE FIND THAT AT THE TIME THIS INVITATION WAS ISSUED AND AT THE TIME OF AWARD GENERAL NUCLEAR CORPORATION APPEARED ON THE "JOINT CONSOLIDATED LIST OF DEBARRED, INELIGIBLE AND SUSPENDED CONTRACTORS" ISSUED BY THE DEPARTMENTS OF THE ARMY, THE NAVY, AND THE AIR FORCE AND THE DEFENSE SUPPLY AGENCY. THIS LIST INDICATED THAT GENERAL NUCLEAR CORPORATION WAS INELIGIBLE AS TO ALL COMMODITIES AND THAT THE INELIGIBILITY WAS TO BE OF AN INDEFINITE DURATION.

FURTHERMORE, OUR STATEMENTS IN B-149781, OCTOBER 29, 1962, AS EXPLAINED IN B-152515 JANUARY 10, 1964, ARE APPLICABLE ONLY TO THOSE SITUATIONS WHERE THE PROCURING ACTIVITY IN THE FIRST INSTANCE DOES NOT ATTEMPT TO ASCERTAIN THE QUALIFICATIONS OF THE PROPOSED PRIME CONTRACTOR. IN YOUR SITUATION YOU WERE INITIALLY CONTACTED FOR THE PURPOSE OF ASCERTAINING YOUR QUALIFICATIONS AND ONLY AFTER SUCH CONTACTS LEFT IN DOUBT YOUR ABILITY TO PERFORM DID THE GOVERNMENT ATTEMPT TO ASCERTAIN THE QUALIFICATIONS OF YOUR SUBCONTRACTOR. IN THESE CIRCUMSTANCES B-149781, OCTOBER 29, 1962, WOULD HAVE NO APPLICATION TO PRECLUDE THE PROCURING ACTIVITY FROM ASCERTAINING THE QUALIFICATIONS OF YOUR SUPPLIER.

FOR THE FOREGOING REASONS OUR DECISIONS B-151543, OCTOBER 9, 1963, IS AFFIRMED.