B-158123, FEB. 28, 1966

B-158123, FEB. 28, 1966

TO METZ OF CALIFORNIA:

BY TELEGRAM OF DECEMBER 1, 1965, AND LETTER DATED DECEMBER 16, 1965, YOU PROTESTED THE AWARD OF A CONTRACT TO ANY OTHER FIRM OF A PORTION OF THE REQUIREMENTS OF INVITATION FOR BIDS NO. DSA-100-66-601, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA. YOU CONTEND THAT YOU WERE THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER AND THAT THE AWARD TO M AND B HEADWEAR CO., INC., ON NOVEMBER 29, 1965, OF A PORTION OF THE PROCUREMENT WAS IMPROPER.

THE INVITATION, CALLING FOR PRODUCTION OF 320,760 UTILITY CAPS AND THEIR DELIVERY IN SPECIFIED QUANTITIES TO SEVEN DESTINATIONS, WAS ISSUED OCTOBER 15, 1965, AND THE FOUR BIDS RECEIVED WERE OPENED ON NOVEMBER 4. AS LOW BIDDER, YOUR FIRM BID $0.69 PER ITEM TO FOUR DESTINATIONS AND $0.71 TO THE REMAINING THREE; THE SECOND LOW BIDDER, M AND B HEADWEAR CO., INC., BID $0.763 TO ALL DESTINATIONS, WITH A MINIMUM ACCEPTABLE QUANTITY OF 250,000 ITEMS; THE THIRD LOW BIDDER BID $0.97 ON ALL ITEMS; AND THE FOURTH BIDDER BID $0.98 TO FOUR DESTINATIONS AND $1.00 TO THREE.

ON NOVEMBER 8, 1965, A PRE-AWARD SURVEY WAS REQUESTED OF YOUR FACILITIES AND ON NOVEMBER 15, THE INVESTIGATION WAS PERFORMED. IT WAS DETERMINED, THAT, IN ORDER TO PRODUCE THE ENTIRE QUANTITY, 40 SKILLED AND 6 UNSKILLED WORKERS WERE REQUIRED BUT THAT METZ HAD ONLY 6 SKILLED AND 4 UNSKILLED PERSONNEL. THEREFORE, THE SURVEY OFFICER DETERMINED THAT YOU WERE CAPABLE OF PRODUCING ONLY ONE-HALF OF THE REQUIRED AMOUNT. YOU ALLEGE THAT THE SURVEY WAS IMPROPER BOTH IN FORM AND SUBSTANCE, IN THAT, FIRST, THE INSPECTING OFFICER SEEMED TO KNOW VERY LITTLE ABOUT THE MANUFACTURE OF THESE HATS AND THAT HE SPENT ONLY ONE HOUR ON HIS INSPECTION AND, SECONDLY, THERE WERE 150 QUALIFIED MACHINE OPERATORS AVAILABLE FOR EMPLOYMENT TO WORK ON THIS PROCUREMENT.

THERE IS NOTHING IN OUR FILES TO INDICATE THAT THE SURVEY OFFICER SENT TO INSPECT THE CAPABILITIES OF YOUR FACILITIES WAS NOT FULLY QUALIFIED TO DO SO. FURTHER, THERE IS NO PRESCRIBED TIME IN WHICH TO CONDUCT SUCH A SURVEY. IN THIS CASE, YOUR PLANT WAS NOW, AND, WE ARE ADVISED, NOT IN FULL OPERATION, SO THAT AN HOUR WAS ALL THAT WAS NECESSARY TO CONDUCT AN ADEQUATE SURVEY. SECONDLY, IT WAS BROUGHT TO THE ATTENTION OF THE SURVEY OFFICER THAT YOUR PLANT WAS LOCATED IN A POOR TRANSPORTATION AREA, WHICH WOULD PROBABLY PROHIBIT YOUR OBTAINING THE NECESSARY COMPLIMENT OF PERSONNEL TO PRODUCE MORE THAN ONE-HALF OF THE PROCUREMENT. WE HAVE CONSISTENTLY HELD THAT IT IS THE DUTY OF THE CONTRACTING OFFICER TO DETERMINE, TO HIS SATISFACTION, THE RESPONSIBILITY OF A BIDDER; 37 COMP. GEN. 430; 38 ID. 248; 39 ID. 468; 43 ID. 228; AND THAT SUCH DETERMINATION WILL NOT BE QUESTIONED BY THIS OFFICE IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 36 COMP. GEN. 52; 37 ID. 430; ID. 798; 38 ID. 131; ID. 778. WE FIND NO ERROR IN THE SURVEY OFFICER'S PROCEDURE OR FINDINGS.

YOU ALLEGE, ALSO, THAT THE MATTER SHOULD HAVE BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION AS PROVIDED IN ARMED SERVICES PROCUREMENT REGULATION 1-705.4 (C), WHICH PROVIDES THAT WHERE A COMPANY IS DETERMINED NONRESPONSIBLE SOLELY BECAUSE OF LACK OF CAPACITY OR CREDIT, THE MATTER IS TO BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR REVIEW AND THAT, THE AWARD IS TO BE WITHHELD UNTIL SBA ACTION CONCERNING A CERTIFICATE OF COMPETENCY OR FOR 15 WORKING DAYS, WHICHEVER IS EARLIER. SUBSECTION (IV), HOWEVER, PROVIDES AN EXCEPTION WHERE THE CONTRACTING OFFICER DETERMINES THE PROCUREMENT TO BE URGENT SO THAT THE AWARD MUST BE MADE WITHOUT DELAY AND SO CERTIFIES IN WRITING. SEE IN THIS CONNECTION 43 COMP. GEN. 298. THE PRE-AWARD SURVEY IS DATED NOVEMBER 17, 1965, (WEDNESDAY) AND ON MONDAY, NOVEMBER 22, A DISPOSITION FORM FROM THE DIVISION OF SUPPLY OPERATIONS STATED THAT THESE UTILITY CAPS WERE IN CRITICAL SHORTAGE AND REQUESTED THAT AWARD UNDER THIS INVITATION BE MADE WITHOUT DELAY. THE CONTRACTING OFFICER FAILED TO CERTIFY THE URGENCY OF THE PROCUREMENT IN WRITING UNTIL AFTER AWARD HAD BEEN MADE. IN OUR DECISION B-156392, DATED MAY 10, 1965, A CASE WHERE THE URGENCY EXISTED PRIOR TO AWARD BUT, AS HERE, THE CERTIFICATION WAS NOT MADE UNTIL AFTER AWARD, WE HELD THAT, ALTHOUGH THE AGENCY SHOULD HAVE FOLLOWED THE PRESCRIBED PROCEDURE, SINCE THE FAILURE TO CERTIFY PRIOR TO AWARD RESULTED FROM INADVERTENCE RATHER THAN FROM AN INTENT TO CIRCUMVENT THE SMALL BUSINESS ACT, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE VALIDITY OF THE ACTIONS TAKEN. FURTHER, THIS OFFICE, AS A GENERAL RULE, WILL NOT QUESTION THE DETERMINATIONS OF URGENCY MADE BY CONTRACTING OFFICERS. B-149293, DATED AUGUST 14, 1952; B 145487, DATED OCTOBER 20, 1961; B-136754, DATED MARCH 12, 1959. UNDER THE CIRCUMSTANCES, WE CAN FIND NO ERROR IN THE ACTIONS TAKEN BY THE CONTRACTING OFFICER WITH RESPECT TO YOUR RESPONSIBILITY.

THE DETERMINATION OF YOUR FIRM'S RESPONSIBILITY HAD THE EFFECT OF LIMITING CONSIDERATION OF YOUR BID TO A PRODUCTION OF 160,380 UTILITY CAPS AND REQUIRING THE CONTRACTING OFFICER TO TURN TO THE NEXT LOW BIDDER, M AND B HEADWEAR CO., INC., FOR THE REMAINDER. THE COMPANY, HOWEVER, HAD SPECIFIED A MINIMUM LIMITATION OF 250,000 UNITS IN ITS BID, SO THAT, IF YOUR FIRM RECEIVED AN AWARD FOR 160,380, THE REMAINDER WOULD HAVE TO GO TO THE THIRD LOW BIDDER, SOBOROFF SONS COMPANY, AT $0.97 EACH. THIS WOULD RESULT IN A TOTAL CONTRACT COST OF $266,230.80. ON NOVEMBER 23, 1965, THE CONTRACTING OFFICER REQUESTED THE BID AND PRICE ANALYSIS BRANCH TO FORMULATE THE METHOD OF AWARD MOST ADVANTAGEOUS TO THE GOVERNMENT. NOVEMBER 26, THAT BRANCH ADVISED THAT AN AWARD OF 250,000 UNITS TO M AND B AND 70,760 TO METZ WOULD RESULT IN A COST TO THE GOVERNMENT OF $239,574.40, A SAVING OF $26,656.40. ON NOVEMBER 29, AWARDS WERE MADE ON THE BASIS OF THAT COMBINATION. IN THAT CONNECTION, ON THE INFORMATION TO BIDDERS SHEET (DSA FORM 299-R), UNDER THE PARAGRAPH "BLOCK BIDS," IS THE FOLLOWING PROVISION:

"* * * ANY BIDDER INTENDING TO LIMIT THE QUANTITY THE GOVERNMENT MAY ACCEPT AT A SPECIFIC QUOTED PRICE MUST AFFIRMATIVELY SO STATE. FAILURE OF A BIDDER TO LIMIT THE QUANTITY AT ANY STATED PRICE WILL RESULT IN THE GOVERNMENT ACCEPTING ANY OR ALL OF THE QUANTITY OFFERED AT THE LOWEST QUOTED PRICES.'

UNDER THE SPECIAL TERMS AND CONDITIONS, PARAGRAPH 8,"AWARD OF CONTRACT" PROVIDES, IN PART:

"/A) THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

"/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS. UNLESS OTHERWISE PROVIDED IN THE SCHEDULE, BIDS MAY BE SUBMITTED FOR ANY QUANTITIES LESS THAN THOSE SPECIFIED; AND THE GOVERNMENT RESERVES THE RIGHT TO MAKE AN AWARD ON ANY ITEM FOR A QUANTITY LESS THAN THE QUANTITY BID UPON AT THE UNIT PRICES OFFERED UNLESS THE BIDDER SPECIFIES OTHERWISE IN HIS BID.'

PAGE THREE OF THE SCHEDULE CONTAINS THE FOLLOWING WARNING:

"FAILURE TO INDICATE A MINIMUM QUANTITY WILL BE DEEMED AN OFFER TO ACCEPT AN AWARD FOR THE TOTAL QUANTITY BID UPON OR ANY PART THEREOF.'

THESE PROVISIONS FURNISHED YOU MORE THAN SUFFICIENT WARNING THAT THE GOVERNMENT MIGHT AWARD LESS TO YOU THAN THE AMOUNT BID UPON. THIS OFFICE HAS CONSIDERED THIS QUESTION MANY TIMES AND HAS HELD, IN A LONG LINE OF DECISIONS, THAT AWARDS MUST BE MADE ON THE BASIS OF BIDS MOST ADVANTAGEOUS TO THE GOVERNMENT AND HAS SANCTIONED THE USE OF MULTIPLE AWARDS. SEE 42 COMP. GEN. 415; 40 ID. 79; B-154644, DATED SEPTEMBER 28, 1964; B-153367, DATED FEBRUARY 28, 1964; B-153158, DATED FEBRUARY 3, 1964; B-149085, DATED AUGUST 28, 1962; B-130908, DATED APRIL 11, 1957. CONSEQUENTLY, WE FIND NO ERROR IN THE MULTIPLE AWARDS MADE IN THIS CASE.