B-161494, OCT. 23, 1967

B-161494, OCT. 23, 1967

BIDDERS - RESPONSIBILITY - PRIOR UNSATISFACTORY SERVICE A DECISION TO FRANK AND WARREN, INC., PROTESTING AWARD BY GSA TO A HIGHER BIDDER FOR AN OPEN-END PROCUREMENT OF WRENCHES. A LOW BIDDER WHO WAS DETERMINED TO BE NONRESPONSIBLE BECAUSE OF PRIOR UNSATISFACTORY PERFORMANCE AND WHO DID NOT HAVE MATTER REFERRED TO SBA UNDER CERTIFICATE OF COMPETENCY PROCEDURES BECAUSE BIDDER PROPOSED TO FURNISH ITEMS FOR FOREIGN MANUFACTURE AND BECAUSE ITEMS OF DOMESTIC ORIGIN WOULD BE PROCURED IN AN AMOUNT LESS THAN $10,000 MAY NOT HAVE DETERMINATION OF RESPONSIBILITY QUESTIONED SINCE SUCH DETERMINATION INVOLVES CONSIDERABLE RANGE OF DISCRETION AND IN ABSENCE OF EITHER ARBITRARY OR CAPRICIOUS ACTION OR LACK OF SUBSTANTIAL EVIDENCE DETERMINATION WILL NOT BE QUESTIONED.

TO FRANK AND WARREN, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1967, PROTESTING AGAINST THE AWARD OF CONTRACT TO A HIGHER BIDDER OTHER THAN YOUR FIRM UNDER INVITATION FOR BIDS NO. FPNTT-D6-56191-A-3-30-67, AS AMENDED, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), FEDERAL SUPPLY SERVICE.

THE RECORD SHOWS THAT THE SUBJECT INVITATION, ISSUED ON FEBRUARY 24, 1967, REQUESTED BIDS TO SATISFY THE GOVERNMENT'S REQUIREMENTS FOR 79 ITEMS OF CLASS 5120, WRENCHES, OPEN END (NONADJUSTABLE). YOUR FIRM, OFFERING ITEMS OF FOREIGN MANUFACTURE (EXCEPT FOR ITEMS 68 AND 69), WAS LOW BIDDER ON ITEMS 3, 4, 7 THROUGH 10, 12, 14, 16 THROUGH 20, 26, 28, 30, 37 THROUGH 40, 42 THROUGH 45, 47 THROUGH 57, 68, 69 AND 77 THROUGH 79.

IN ORDER TO PROVIDE A BASIS FOR A DETERMINATION THAT YOU WERE A RESPONSIBLE PROSPECTIVE CONTRACTOR, A PREAWARD SURVEY WAS CONDUCTED OF YOUR FACILITIES AND BY REPORT DATED JUNE 30, 1967, YOUR FIRM WAS RECOMMENDED FOR AWARD OF ITEMS 18 AND 51 ONLY BECAUSE YOU HAD IN STOCK SUFFICIENT QUANTITIES OF THOSE ITEMS TO MEET CONTEMPLATED CONTRACT REQUIREMENTS. YOUR FIRM WAS NOT RECOMMENDED FOR AWARD ON THE REMAINING ITEMS ON WHICH YOU WERE LOW BIDDER BECAUSE DELIVERY COMMITMENTS FROM YOUR SUPPLIER WERE LACKING ON ALL ITEMS OF FOREIGN ORIGIN. NEITHER DID YOU HAVE ANY PURCHASE COMMITMENTS REGARDING THE MATERIALS AND DIES REQUIRED TO PRODUCE ITEMS 68 AND 69 WHICH WERE TO BE OF DOMESTIC ORIGIN.

IN VIEW OF THE FOREGOING INFORMATION AND YOUR FIRM'S PREVIOUS RECORD OF UNSATISFACTORY PERFORMANCE ON PRIOR CONTRACTS, THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM WAS NONRESPONSIBLE AND REJECTED THE BID ON ALL ITEMS EXCEPT ITEMS 18 AND 51. THIS RECORD OF UNSATISFACTORY PRIOR CONTRACT PERFORMANCE WAS DISCUSSED IN OUR DECISION OF JUNE 9, 1967, B- 161167 THROUGH B-161170, TO YOU, AND NEED NOT BE RESTATED HERE.

WITH REGARD TO ITEMS 18 AND 51, WE ARE ADVISED THAT SINCE THE ESTIMATED REQUIREMENTS FOR THESE ITEMS ARE RELATIVELY SMALL, AND BECAUSE YOUR FIRM HAS MORE THAN SUFFICIENT STOCK ON HAND TO MEET THOSE REQUIREMENTS, AN AWARD COVERING THOSE ITEMS IS BEING MADE TO YOUR FIRM. IT IS ALSO REPORTED THAT THE MATTER OF YOUR FIRM'S NONRESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION UNDER THE CERTIFICATE OF COMPETENCY PROCEDURES IN VIEW OF THE FACT THAT YOUR FIRM PROPOSED TO FURNISH ITEMS OF FOREIGN MANUFACTURE, AND BECAUSE THE ITEMS OF DOMESTIC ORIGIN (68 AND 69) WOULD BE PROCURED IN AN AMOUNT LESS THAN $10,000. SEE SECTIONS 1-1.701 1 (D) (3) AND 1-1.708-2 (A) (3) OF THE FEDERAL PROCUREMENT REGULATIONS. B-161167 THROUGH B-161170, JUNE 9, 1967.

SUBSECTION 253 (B) OF TITLE 41, U.S.C. 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 REQUIREMENT 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 NONRESPONSIBILITY 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. WE FIND NO BASIS ON THE RECORD BEFORE US TO QUESTION THE ADVERSE DETERMINATION MADE BY THE CONTRACTING OFFICER WITH REFERENCE TO YOUR FIRM'S RESPONSIBILITY.