B-161085, JUL. 31, 1967

B-161085, JUL. 31, 1967

BIDDERS - RESPONSIBILITY - ADMINISTRATIVE DETERMINATION DECISION TO HITOCQUE MANUFACTURING CO., INC., PROTESTING REJECTION OF BIDS FOR VARIOUS NAVY, DEFENSE SUPPLY AGENCY AND AVIATION SUPPLY OFFICE CONTRACTS ON BASIS OF NON RESPONSIBILITY. WHERE CONTRACTING OFFICER'S DETERMINATION THAT LOW BIDDER LACKS RESPONSIBILITY AND EVIDENCE SUPPORTS THE DETERMINATIONS, THE BIDDER'S NONRESPONSIBILITY WILL NOT BE QUESTIONED.

TO MR. SAL FARRUGIA, HI-TORQUE MANUFACTURING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF APRIL 17 AND MAY 8, 1967, PROTESTING THE REJECTION OF YOUR BIDS SUBMITTED IN RESPONSE TO INVITATIONS FOR BIDS ISSUED BY VARIOUS MILITARY DEPARTMENTS.

WE HAVE RECEIVED REPORTS CONCERNING TWO INVITATIONS FOR BIDS ISSUED BY THE DEFENSE SUPPLY AGENCY AND THREE ISSUED BY THE DEPARTMENT OF THE NAVY.

WITH REGARD TO INVITATIONS FOR BIDS DSA-700-67-B-4196 AND DSA-400 67-B- 4985, WE HAVE BEEN ADVISED BY HEADQUARTERS, DEFENSE SUPPLY AGENCY, THAT AWARDS UNDER THESE TWO INVITATIONS FOR BIDS WERE MADE TO YOU ON JUNE 8 AND JUNE 28, 1967, RESPECTIVELY.

INVITATION FOR BIDS NO. N00383-67-716 WAS ISSUED BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA. AN AWARD WAS MADE TO YOU ON JUNE 1, 1967, PURSUANT TO A CERTIFICATE OF COMPETENCY ISSUED BY THE SMALL BUSINESS ADMINISTRATION ON MAY 26, 1967.

INVITATION FOR BIDS NO. N00104-67-B-1014 WAS ISSUED BY THE UNITED STATES NAVY SHIP PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, ON JANUARY 13, 1967, FOR 114 SHAFT SLEEVES FOR CENTRIFUGAL PUMPS, DELIVERY TO BE ACCOMPLISHED WITHIN 180 DAYS FROM DATE OF CONTRACT. YOUR BID OF $18.32 EACH WAS LOW. HOWEVER, THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER AND YOUR BID WAS REJECTED. THIS DETERMINATION WAS BASED UPON A PRE-AWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, NEW YORK, NEW YORK, WHICH SHOWED THAT HI-TORQUE MANUFACTURING COMPANY, INC. (INCLUDING FRANK AND WARREN, INC., AND B. W. FRANK, INC., ALL LOCATED IN THE SAME BUILDING AND OCCUPYING THE SAME AND/OR ADJOINING PREMISES AND BEING, TO ALL INTENTS AND PURPOSES, THE SAME COMPANY) HAS A HISTORY REPLETE WITH UNSATISFACTORY REPORTS, REQUESTS FOR WAIVERS, REJECTIONS BY GOVERNMENT QUALITY CONTROL INSPECTORS, FAILURE TO MEET CONTRACTUAL DELIVERY COMMITMENTS, DD 375 ACTION DOCUMENTS, TERMINATION ACTIONS, ETC., ALL OF WHICH HAVE DELAYED THE TIMELY AVAILABILITY OF ACCEPTABLE MATERIAL TO THE USING ACTIVITIES AND HAVE IMPOSED TIME CONSUMING AND COSTLY ADMINISTRATIVE AND TECHNICAL BURDENS ON DOD CONTRACT ADMINISTRATION ACTIVITIES AND ON THE PROCURING ACTIVITIES. IT WAS FURTHER REPORTED THAT IN VIEW OF THE PRESENT DELINQUENT BACKLOG THERE WAS NO ASSURANCE THAT YOU COULD MEET THE PRESCRIBED DELIVERY SCHEDULE. THIS MATTER WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION UNDER ASPR 1-705.4/C), SINCE THE PROCUREMENT WAS FOR LESS THAN $10,000.

INVITATION FOR BIDS NO. N00156-67-B-0449 WAS ISSUED BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA, FOR 30 SHUTTLE RAMPS. YOUR BID OF $192 EACH OR A TOTAL OF $5,760 WAS LOW. HOWEVER, THE CONTRACTING OFFICER HAS DETERMINED THAT YOUR FIRM IS NOT A RESPONSIBLE CONTRACTOR ON THE BASIS OF A PRE-AWARD SURVEY WHICH WAS SIMILAR TO THE REPORT SET FORTH ABOVE.

SECTION 2305/C) OF TITLE 10, U.S.C. WHICH IS APPLICABLE TO FORMALLY ADVERTISED PROCUREMENTS OF THE MILITARY DEPARTMENTS, PROVIDES, IN PART, THAT "AWARDS SHALL BE MADE WITH REASONABLE PROMPTNESS BY GIVING WRITTEN NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.' CONSISTENT WITH THE STATUTORY PROVISIONS, ASPR 1-904.1 PRECLUDES AWARDS UNLESS THE CONTRACTING OFFICER FIRST MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE UNDER THE CRITERIA SET OUT IN ASPR 1-903. ONE OF THE CRITERIA, SET OUT AT ASPR 1- 903/III) IS THAT A PROSPECTIVE CONTRACTOR TO QUALIFY AS RESPONSIBLE MUST HAVE A SATISFACTORY RECORD OF PERFORMANCE.

DETERMINATION OF A BIDDER'S RESPONSIBILITY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION AND WE HAVE CONSISTENTLY ADHERED TO THE RULE THAT DETERMINATIONS OF RESPONSIBILITY OR NONRESPONSIBILITY WILL NOT BE QUESTIONED UNLESS THE DETERMINATIONS ARE EITHER ARBITRARY OR CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE. IN THE TWO CASES WHERE YOUR BIDS WERE REJECTED IT APPEARS THAT THE CONTRACTING OFFICER'S DETERMINATIONS OF NONRESPONSIBILITY WERE BASED UPON SUFFICIENT EVIDENCE TO SUPPORT A REASONABLE CONCLUSION THAT YOUR FIRM DID NOT QUALIFY AS A RESPONSIBLE BIDDER. ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN.

UPON RECEIPT OF REPORTS FROM THE ADMINISTRATIVE OFFICES CONCERNING THE OTHER PROCUREMENTS, THE MATTER WILL BE GIVEN CONSIDERATION AND YOU WILL BE ADVISED OF OUR CONCLUSIONS REGARDING SUCH PROTESTS.