B-161167, B-161168, B-161169, B-161170, JUN. 9, 1967

B-161167, B-161168, B-161169, B-161170, JUN. 9, 1967

TO FRANK AND WARREN, INCORPORATED:

REFERENCE IS MADE TO OUR LETTER TO YOU OF MAY 2, 1967, ADVISING THAT WE HAD REQUESTED ADMINISTRATIVE REPORTS FROM THE GENERAL SERVICES ADMINISTRATION ON YOUR PROTESTS AGAINST THE POSSIBLE REJECTION OF YOUR BIDS SUBMITTED IN RESPONSE TO SIX INVITATIONS DESIGNATED AS INVITATION FOR BIDS NOS. FPNTT-D4-91084-A, FPNTT-D6-91584-A, FPNTT-D2 93471-A, FPNTT-D9- 93334-A, FPNTT-D2-56129-A AND FPNTT-D3-56159-A.

WE HAVE RECEIVED A REPORT FROM THE GENERAL SERVICES ADMINISTRATION CONCERNING THE PROTESTS MADE IN THE FIRST FOUR CASES AS RECORDED IN THE ABOVE-REFERENCED FILES OF OUR OFFICE.

THE RECORD NOW SHOWS THAT THE FOUR INVITATIONS FOR BIDS COVERED PROPOSED PROCUREMENTS OF A TOTAL OF 25 ITEMS OF WRENCHES, COMBINATION BOX AND OPEN END, THREE ITEMS OF WRENCHES, ADJUSTABLE AND TORQUE, AND THREE ITEMS OF WRENCH SETS. YOU OFFERED PRODUCTS OF FOREIGN MANUFACTURE. YOU WERE THE ONLY BIDDER ON ITEM NO. 2 OF INVITATION NO. FPNTT-D4-91084-A AND, AFTER THE APPLICATION OF BUY AMERICAN ACT CRITERIA FOR BID EVALUATIONS WHERE IT IS NECESSARY TO COMPARE BID PRICES ON FOREIGN MADE PRODUCTS WITH BID PRICES ON PRODUCTS MANUFACTURED IN THE UNITED STATES, YOU WERE CONSIDERED TO BE THE LOW BIDDER ON ITEMS NOS. 7, 8, 9 AND 10 OF THE INVITATION. THE SAME BASIS, YOU WERE DETERMINED TO BE THE LOW BIDDER ON ITEM NO. 1 OF INVITATION NO. FPNTT-D6-91584-A; ON ITEM NO. 3 OF INVITATION NO. FPNTT D2- 93471-A; ON ITEMS NOS. 2 AND 10 OF INVITATION NO. FPNTT-D9-93334-A; AND ON PARTIAL QUANTITIES OF ITEMS NOS. 8 AND 9 OF INVITATION NO. FPNTT-D9-93334- A.

ON THE PRESENT RECORD THERE APPEARS TO BE NO BASIS FOR YOUR PROTEST CONCERNING INVITATION NO. FPNTT-D2-93471-A. IT IS NOT PROPOSED TO MAKE AN AWARD ON ITEM NO. 3 OF THAT INVITATION DUE TO THE FACT THAT THE REQUISITIONING OFFICE DETERMINED ON THE BASIS OF AN ANALYSIS OF ITS CURRENT STOCK POSITION THAT PROCUREMENT OF THE PARTICULAR QUANTITY OF WRENCH SETS WAS NOT NECESSARY.

AWARDS HAVE BEEN MADE TO OTHER BIDDERS ON ITEMS NOS. 7, 8, 9 AND 10 OF INVITATION NO. FPNTT-D4-91084-A BUT NO AWARD HAS BEEN MADE ON ITEM NO. 2 OF THAT INVITATION. YOUR BID, SO FAR AS IT CONCERNS ITEMS NOS.7, 8, 9 AND 10, WAS REJECTED ON THE GROUND OF NONRESPONSIBILITY. YOUR BID ON ITEM NO. 1 OF INVITATION NO. FPNTT-D6-91584-A WAS ALSO REJECTED ON THE GROUND OF NONRESPONSIBILITY AND IT IS PROPOSED TO PROCURE THE QUANTITY OF WRENCHES AS DESCRIBED UNDER ITEM NO. 1 THROUGH NEGOTIATION OF A CONTRACT BECAUSE THE OTHER BIDDERS ON ITEM NO. 1 EITHER FAILED TO SUBMIT SAMPLES OR QUOTED PRICES WHICH APPEARED TO BE EXCESSIVE. IT APPEARS THAT NO AWARDS HAD BEEN MADE AS OF MAY 22, 1967, ON THE ITEMS AND PARTS OF ITEMS AS TO WHICH YOU WERE DETERMINED TO BE THE LOW BIDDER UNDER INVITATION NO. FPNTT-D9-93334- A. HOWEVER, THE CONTRACTING OFFICER DETERMINED THAT YOUR BID SHOULD BE REJECTED ON THE GROUND OF NONRESPONSIBILITY.

THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY IN THE CASE OF INVITATION NO. FPNTT-D4-91084-A WAS BASED IN PART UPON A BELIEF THAT YOUR FIRM COULD NOT MEET THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS. THE CONTRACTING OFFICER HAD BEEN ADVISED IN A FACILITIES REPORT ON YOUR FIRM THAT THE PLATING THICKNESS OF WRENCHES DELIVERED UNDER CONTRACT NO. GS-OOS-58434, DATED DECEMBER 16, 1965, WITH YOUR FIRM DID NOT CONFORM TO PLATING REQUIREMENTS, THAT THE CONTRACT ITEMS WERE SIMILAR TO THOSE BID ON THAT "MATERIAL FOR THIS BID WILL BE PRODUCED BY THE SAME JAPANESE SUPPLIER AND TO DATE THERE IS NO EVIDENCE THIS CONDITION HAS BEEN CORRECTED.'

OTHERWISE, THE CONTRACTING OFFICER'S DETERMINATIONS OF NONRESPONSIBILITY IN THE CASES OF INVITATIONS NOS. FPNTT-D4-91084-A, FPNTT-D6-91584-A AND FPNTT-D9-93334-A WERE BASED UPON A CONCLUSION THAT YOUR FIRM DOES NOT HAVE A SATISFACTORY RECORD OF PERFORMANCE BECAUSE OF FAILURE TO MEET DELIVERY REQUIREMENTS UNDER CONTRACT NO. GS OOS-58434 AND SEVERAL OTHER CONTRACTS AND PURCHASE ORDERS WHICH HAD BEEN AWARDED BY THE GENERAL SERVICES ADMINISTRATION TO YOUR COMPANY. THUS, IN THE CONTRACTING OFFICER'S FINDINGS AND DETERMINATION OF NONRESPONSIBILITY AS RELATED TO YOUR BID UNDER INVITATION NO. FPNTT-D9 93334-A, THE FOLLOWING INFORMATION IS SET FORTH:

1. THAT YOU WERE DELINQUENT IN MAKING DELIVERY ON 45 ORDERS FOR DELIVERY OF APPROXIMATELY 55,000 WRENCHES UNDER CONTRACT NO. GS-OOS 61878, AND THAT CONTRACT TERMINATION ACTION WAS THEN IN PROCESS.

2. THAT YOU WERE DELINQUENT IN MAKING DELIVERY OF APPROXIMATELY 150,000 WRENCHES UNDER CONTRACT NO. GS-OOS-67725, AND THAT THE CONTRACT WAS TERMINATED IN ITS ENTIRETY ON MAY 2, 1967.

3. THAT YOU WERE DELINQUENT IN MAKING DELIVERIES UNDER CONTRACT NO. GS- OOS-67547, WHICH WAS STILL IN EFFECT, AND UNDER TWO CURRENT PURCHASE ORDERS DESIGNATED AS REGION 1 PURCHASE ORDER NO. B-23292 AND REGION 9 PURCHASE ORDER NO. S-04842A-1.

4. THAT CONTRACTS NOS. GS-OOS-58548 AND GS-OOS-57733 WERE TERMINATED ON MAY 13, 1966, FOR FAILURE TO PERFORM AND THAT 32 ORDERS, INVOLVING A TOTAL OF 166,338 WRENCHES REQUIRED FOR DELIVERY UNDER CONTRACT NO. GS-OOS-58434, WERE TERMINATED DURING THE MONTH OF AUGUST 1966 FOR FAILURE TO PERFORM.

5. THAT YOU WERE DELINQUENT IN MAKING DELIVERIES UNDER ALL ORDERS ISSUED UNDER COMPLETED CONTRACT NO. GS-OOS-56928.

THE REPORT OF THE GENERAL SERVICES ADMINISTRATION FURNISHES ADDITIONAL INFORMATION ON CERTAIN OF THE ABOVE-LISTED CONTRACTS AND THE REPORT STATES THE POSITION OF THE ADMINISTRATION TO BE THAT THE CONTRACTING OFFICER PROPERLY DETERMINED THAT YOUR FIRM COULD NOT BE CONSIDERED AS A RESPONSIBLE BIDDER UNDER INVITATION NOS. FPNTT-D4-91084 A, FPNTT-D6-91584- A AND FPNTT-D9-93334-A. THE CASES WERE NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION IN VIEW OF THE FACT THAT YOU PROPOSED TO FURNISH FOREIGN MADE PRODUCTS.

SUBSECTION 253 (B) OF TITLE 41, U.S.C. WHICH IS APPLICABLE TO FORMALLY ADVERTISED PROCUREMENTS OF THE GENERAL SERVICES ADMINISTRATION, PROVIDES, IN PART, THAT "AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY WRITTEN NOTICE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.' CONSEQUENTLY, IN ORDER TO JUSTIFY THE ACCEPTANCE OF THE LOWEST RESPONSIVE BID IN A PARTICULAR CASE, IT MUST BE AFFIRMATIVELY DETERMINED BY THE CONTRACTING OFFICER THAT THE BIDDER IS RESPONSIBLE. SECTION 1-1.310-5 OF THE FEDERAL PROCUREMENT REGULATIONS PROVIDES THAT CERTAIN MINIMUM STANDARDS MUST BE MET BY A BIDDER IN ORDER TO QUALIFY AS A RESPONSIBLE PROSPECTIVE CONTRACTOR, INCLUDING THE STANDARDS THAT THE BIDDER HAVE THE NECESSARY EXPERIENCE AND TECHNICAL QUALIFICATIONS, OR THE ABILITY TO OBTAIN THEM, AND THAT THE BIDDER HAVE A SATISFACTORY RECORD OF PERFORMANCE. SECTION 1-1.310-5 STATES, WITH REFERENCE TO THE MATTER OF HAVING A SATISFACTORY RECORD OF PERFORMANCE, THAT "CONTRACTORS WHICH ARE SERIOUSLY DELINQUENT IN CURRENT CONTRACT PERFORMANCE, CONSIDERING THE NUMBER OF CONTRACTS AND THE EXTENT OF DELINQUENCIES OF EACH, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR COMPELLING CIRCUMSTANCES, BE PRESUMED TO BE UNABLE TO FULFILL THIS REQUIREMENT.'

A DETERMINATION OF A BIDDER'S RESPONSIBILITY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION AND OUR OFFICE HAS CONSISTENTLY ADHERED TO THE RULE THAT THE DETERMINATION OF RESPONSIBILITY OR NON RESPONSIBILITY WILL NOT BE QUESTIONED UNLESS THE DETERMINATION IS EITHER ARBITRARY OR CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE. 38 COMP. GEN. 131; 37 ID. 430, 435. IN THIS CASE IT APPEARS THAT THE CONTRACTING OFFICER'S DETERMINATIONS OF NONRESPONSIBILITY WERE BASED UPON SUFFICIENT EVIDENCE TO SUPPORT A REASONABLE CONCLUSION THAT YOUR COMPANY DID NOT QUALIFY AS A RESPONSIBLE BIDDER UNDER THREE OF THE ABOVE-REFERENCED INVITATIONS FOR BIDS.

ACCORDINGLY, AND IN VIEW OF THE CANCELLATION OF ITEM NO. 3 OF THE FOURTH INVITATION FOR BIDS, THE PROTESTS MADE TO OUR OFFICE CONCERNING INVITATIONS NOS. FPNTT-D4-91084-A, FPNTT-D6-91584-A, FPNTT-D2-93471-A AND FPNTT-D9-93334-A ARE HEREBY DENIED.

WE HAVE NOT RECEIVED ADMINISTRATIVE REPORTS ON YOUR PROTESTS CONCERNING INVITATIONS FOR BIDS NOS. FPNTT-D2-56129-A AND FPNTT-D3-56159-A. UPON RECEIPT OF THE REQUIRED ADMINISTRATIVE REPORTS IN THOSE CASES, THE FACTS AND CIRCUMSTANCES INVOLVED WILL BE GIVEN CAREFUL CONSIDERATION AND YOU WILL BE ADVISED OF OUR CONCLUSIONS REGARDING SUCH PROTESTS.