B-154180, AUG. 3, 1964

B-154180, AUG. 3, 1964

TO FRANK AND WARREN INC.:

WE REFER TO YOUR TELEGRAM OF MAY 13, 1964, PROTESTING AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. 42-600-64-415.

THE INVITATION WAS ISSUED ON MARCH 3, 1964, BY THE DEPARTMENT OF THE AIR FORCE, OGDEN AIR MATERIAL AREA (OOAMA), HILL AIR FORCE BASE, UTAH, CALLING FOR BIDS ON 13,167 EACH,"C" KIT, P/N 218A453 ON BID "A" BASIS FIRST ARTICLE APPROVAL REQUIRED, OR BID "B" FIRST ARTICLE APPROVAL NOT REQUIRED. AWARD WAS SET ASIDE EXCLUSIVELY FOR SMALL BUSINESS CONCERNS.

BIDS WERE OPENED ON APRIL 1, 1964, AND OF THE THIRTY-EIGHT SOURCES SOLICITED, BIDS WERE RECEIVED FROM ELEVEN FIRMS. THE TWO LOW BIDS WERE EVALUATED AT THE FOLLOWING AMOUNTS:

TABLE

BIDDER UNIT PRICE BID BASIS TOTAL PRICE FRANK AND WARREN, INC. $0.87 A

$11,455.29 WALPAK COMPANY 0.95 A 12,508.65

SINCE RECORDS AT THE OOAMA INDICATED THAT YOUR PAST PERFORMANCE UNDER OOAMA CONTRACTS INVOLVED DELINQUENCIES AND THE FURNISHING OF POOR QUALITY MERCHANDISE, A FACILITY CAPABILITY REPORT (FCR) WAS REQUESTED FOR THE PURPOSE OF DETERMINING YOUR RESPONSIBILITY FOR THE REQUIRED WORK. THE NEW YORK CONTRACT MANAGEMENT DISTRICT (NYCMD) PERFORMED THE FCR AND CONCLUDED ON APRIL 23, 1964, THAT YOUR COMPANY WAS NOT IN A POSITION TO OFFER SATISFACTORY PERFORMANCE. THE BASIS FOR THIS CONCLUSION WAS THE OPINION THAT YOU WERE DEFICIENT AS TO FACILITIES, ENGINEERING AND PRODUCTION CAPABILITIES, DELIVERY SCHEDULE, AVAILABILITY OF MATERIAL, AND ADEQUACY OF QUALITY CONTROL. ON APRIL 28, 1964, OOAMA WAS NOTIFIED BY NYCMD THAT YOU WERE FILING FOR A CERTIFICATE OF COMPETENCY AND THAT A TARGET DATE OF MAY 14, 1964, HAD BEEN ESTABLISHED FOR DECISION TO ISSUE OR NOT TO ISSUE A CERTIFICATE OF COMPETENCY.

ON MAY 1, 1964, JUSTIFICATION FOR URGENT PROCUREMENT WAS RECEIVED FROM THE DIRECTORATE OF MATERIAL MANAGEMENT, OOAMA, THAT IT WAS FACED WITH A CRITICAL STOCK STATUS, AND IF IMMEDIATE PROCUREMENT OF THE KITS WAS NOT MADE THEN THE F-100 AIRCRAFT WOULD BE GROUNDED, THEREBY ENDANGERING OUR NATIONAL DEFENSE EFFORT. THEREAFTER, THE CONTRACTING OFFICE DECIDED THAT IT COULD NOT DELAY THE PROCUREMENT FOR SUCH TIME AS WOULD BE INVOLVED IN REFERRING THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR THE PURPOSE OF GIVING THAT ADMINISTRATION AN OPPORTUNITY TO ISSUE A CERTIFICATE OF COMPETENCY ON YOUR BEHALF. THEREFORE, PURSUANT TO THE AUTHORITY IN PARAGRAPH 1-705.6 (B) (I), OF THE ARMED SERVICES PROCUREMENT REGULATION, THE CONTRACTING OFFICER, ON MAY 4, 1964, NOTIFIED THE SBA REPRESENTATIVE IN NEW YORK THAT THE DELAY INCIDENTAL TO THE FILING OF THE CERTIFICATE OF COMPETENCY COULD NOT BE PERMITTED DUE TO URGENCY AND ON MAY 11, 1964, CERTIFIED IN WRITING THAT THE CONTRACT MUST BE AWARDED WITHOUT DELAY. THE CONTRACT WAS THEREAFTER AWARDED TO THE WALPAK COMPANY ON MAY 12, 1964.

YOU SPECIFICALLY PROTEST THIS PLEA OF URGENCY BY THE CONTRACTING OFFICER AND CONTEND THAT AWARD ACTION SHOULD NOT HAVE BEEN TAKEN UNTIL THE SBA HAD PASSED UPON THE MATTER OF YOUR COMPETENCY. IT HAS LONG BEEN AN ESTABLISHED RULE OF OUR OFFICE THAT THE DETERMINATION OF THE QUALIFICATIONS OF A BIDDER IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY, AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION, WE WILL NOT OBJECT TO THE DETERMINATION AS MADE. WE BELIEVE THAT ON THE RECORD BEFORE US THERE WAS A BASIS FOR THE DETERMINATION MADE AS TO YOUR QUALIFICATIONS. MOREOVER, THE DECISION TO AVOID DELAY, WHICH WOULD HAVE BEEN INCIDENT TO OBTAINING THE CERTIFICATE OF COMPETENCY FROM THE SBA, APPEARS TO HAVE BEEN PROPERLY MADE UNDER THE AUTHORITY CONTAINED IN THE CITED ASPR PROVISION. SEE 38 COMP. GEN. 248 AND CASES CITED THEREIN; ALSO B-145487, DATED MAY 19, 1961.

REGARDING YOUR CONTENTION THAT THE PARTS ARE PROPRIETARY, THAT YOUR COMPETITOR WOULD HAVE TO PURCHASE THEM FROM THE SAME SOURCE AS YOU AND, THEREFORE, THE DELIVERY DATE WOULD NOT BE IMPROVED, WE HAVE BEEN ADVISED BY THE CONTRACTING AGENCY THAT THREE OF THE PARTS IN THE KIT ARE TIRE AND RIMASSOCIATION PARTS WHICH ARE MANUFACTURED BY NUMEROUS CONCERNS. THE REMAINING ITEM, AN "O" RING, IS A QUALIFIED PRODUCTS LIST ITEM WITH NUMEROUS FIRMS QUALIFIED TO SUPPLY THE ITEM.