B-155738, JUL. 22, 1965

B-155738, JUL. 22, 1965

TO THE SECRETARY OF THE ARMY:

IN LETTER B-155738 OF APRIL 29, 1965, WE REQUESTED COMMENTS AND ANSWERS TO QUESTIONS WE PROPOUNDED AS A RESULT OF THE REQUEST FOR RECONSIDERATION OF DECISION B-155738 OF APRIL 5, 1965, BY THE ATTORNEY FOR EASTERN TOOL AND MANUFACTURING COMPANY, A COPY OF WHICH REQUEST WAS ENCLOSED WITH OUR APRIL 29, 1965, LETTER.

ANSWERS AND COMMENTS WERE FURNISHED WITH LETTER OF JUNE 15, 1965, FROM THE DIRECTOR OF PROCUREMENT AND PRODUCTION, HEADQUARTERS, UNITED STATES ARMY MATERIEL COMMAND.

THE REQUEST FOR RECONSIDERATION OF OUR APRIL 5 DECISION INDICATES THAT THE EASTERN TOOL PROTEST IS BASED ON TWO SEPARATE POINTS. THE FIRST POINT IS THAT THE SUCCESSFUL BIDDER IS NOT BELIEVED TO HAVE DECLARED AT THE TIME OF THE SUBMISSION OF ITS BID ALL THE GOVERNMENT FACILITIESIT PLANNED TO UTILIZE IN PERFORMANCE OF ANY CONTRACT AWARDED TO IT. THE SECOND POINT IS THAT A SUBCONTRACTOR TO BE EMPLOYED BY THE SUCCESSFUL BIDDER, WHICH IS THE SAME SUBCONTRACTOR EASTERN TOOL HAD PROPOSED TO USE, WILL BE UNABLE TO COMPLETE THE SUBCONTRACT WORK WITH THE ONE GOVERNMENT-OWNED MACHINE DESIGNATED IN THE SUCCESSFUL BIDDER'S BID. ALTERNATIVELY, ON THE SECOND POINT, IT IS ARGUED THAT IF THE SUCCESSFUL BIDDER IS CORRECT THAT ONLY ONE MACHINE IS ADEQUATE FOR THE WORK THEN THE DESIGNATION OF TWO GOVERNMENT- OWNED MACHINES IN THE EASTERN TOOL BID SHOULD HAVE BEEN TREATED AS A PATENT ERROR WHICH SHOULD HAVE BEEN CORRECTED. WHETHER ONE OR TWO GOVERNMENT-OWNED MACHINES IS TO BE EMPLOYED IS SIGNIFICANT IN THAT AN EVALUATION FACTOR IS ADDED TO THE BID PRICE FOR EACH PIECE OF GOVERNMENT- OWNED EQUIPMENT DESIGNATED IN THE BID. EASTERN TOOL WAS THE LOW BIDDER ON THE BASIS OF PRICE AND WOULD BE THE LOW EVALUATED BIDDER IF AN EVALUATION FACTOR FOR TWO GOVERNMENT-OWNED MACHINES WAS ADDED TO THE SUCCESSFUL BIDDER, INSTEAD OF FOR ONE, OR IF AN EVALUATION FACTOR FOR ONLY ONE MACHINE WAS ADDED TO ITS BID, INSTEAD OF FOR TWO.

ON THE FIRST POINT, THE REPORTS FURNISHED OUR OFFICE INDICATE THAT A RESURVEY WAS MADE OF THE SUCCESSFUL BIDDER'S PLANT. THE RESURVEY CONFIRMED THAT THE SUCCESSFUL BIDDER COULD ACCOMPLISH THE WORK WITH THE GOVERNMENT PROPERTY DESIGNATED CONSIDERING THE OTHER PROPERTY IN ITS POSSESSION. WHILE THE PROTESTANT FINDS THIS DIFFICULT TO BELIEVE, IT HAS NOT FURNISHED ANY EVIDENCE TO SHOW THAT THIS IS NOT SO AND IN THESE CIRCUMSTANCES IT IS OUR PRACTICE TO ACCEPT THE ADMINISTRATIVE DETERMINATION AS CORRECT. 16 COMP. GEN. 325.

HOWEVER, ON THE SECOND POINT, IT APPEARS THAT THE SURVEY WHICH WAS MADE OF THE SUBCONTRACTOR'S PLANT TOOK INTO CONSIDERATION ONLY THE THEORETICAL PERFORMANCE OF WHICH THE MACHINE WAS CAPABLE AND THE PREVIOUS "DOWN-TIME" AND EASY ACCESS TO SPARE PARTS IN THE EVENT OF A BREAKDOWN, BUT THERE IS NO SHOWING THAT THE CAPABILITIES WERE MEASURED AGAINST THE AMOUNT OF WORK WHICH THE SUBCONTRACTOR WOULD HAVE IN ITS PLANT AT THE TIME IT WOULD HAVE TO PERFORM FOR THE PRIME CONTRACTOR WHICH MIGHT ALSO REQUIRE THE USE OF THE TYPE OF MACHINE WHICH WOULD HAVE TO BE USED FOR THE PRIME CONTRACTOR'S WORK. NEVERTHELESS, THE DETERMINATION WHICH WAS MADE DOES NOT APPEAR TO HAVE BEEN MADE IN OTHER THAN GOOD FAITH AND THE BID OF THE SUCCESSFUL BIDDER APPEARS TO HAVE BEEN EVALUATED IN CONSONANCE WITH THE METHOD PRESCRIBED BY THE INVITATION. CONSEQUENTLY, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE AWARD AS MADE. WE DO BELIEVE, HOWEVER, THAT ADMINISTRATIVE PERSONNEL SHOULD BE IMPRESSED WITH THE IMPORTANCE OF MAKING EVALUATIONS OF PERFORMANCE CAPABILITIES UPON THE BASIS OF PRACTICAL EXPECTATIONS RATHER THAN UPON THEORETICAL POSSIBILITIES.

OTHER THAN FURNISHING THE ATTORNEY FOR THE PROTESTANT A COPY OF THIS LETTER, NO FURTHER ACTION IS CONTEMPLATED BY OUR OFFICE.