B-161765, AUG. 31, 1967

B-161765, AUG. 31, 1967

BIDDERS - RESPONSIBILITY - PERFORMANCE CAPABILITY DECISION TO GULF AEROSAPCE CORPORATION PROTESTING DETERMINATION OF NONRESPONSIBILITY OF BIDDER BY WHITE SANDS MISSILE RANGE. LOW BIDDER, SMALL BUSINESS FIRM WHO WAS DELINQUENT ON A CONSIDERABLE NUMBER OF CURRENT CONTRACTS AND WHO WAS FOUND BY PREAWARD SURVEY TO BE NONRESPONSIBLE MAY NOT HAVE AWARD TO NEXT LOW BIDDER QUESTIONED SINCE ONE OF FACTORS OF RESPONSIBILITY IN ASPR 1-903 (III) IS APPARANT ABILITY TO PERFORM AND RECORD SUPPORTS DETERMINATION OF CONTRACTING OFFICER. COMP. GEN. 228; ID 298.

TO GULF AEROSPACE CORPORATION:

FURTHER REFERENCE IS MADE TO A COPY OF YOUR LETTER OF JUNE 5, 1967, ADDRESSED TO THE WHITE SANDS MISSILE RANGE, NEW MEXICO, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. DAAD07-67-B-0136.

THE INVITATION DATED APRIL 11, 1967, REQUESTED BIDS FOR 2 PAM/PDM DECOMMUTATORS. TWENTY-FOUR BIDS WERE SOLICITED AND FOUR BIDS WERE RECEIVED AND OPENED ON MAY 10, 1967, AS FOLLOWS:

GULF AEROSPACE CORPORATION

HOUSTON, TEXAS $ 9,450.00 EACH

GJM, INC., ARNOUX PRODUCTS DIV.,

GLENDALE, CALIFORNIA 11,499.98 EACH

STELLARMETRICS, INC.,

SANTA BARBARA, CALIFORNIA 12,492.00 EACH

ASTRODATA, INC.,

ANAHEIM, CALIFORNIA 12,750.00 EACH

ALTHOUGH YOUR COMPANY--A SMALL BUSINESS CONCERN--SUBMITTED THE LOW BID, YOUR BID WAS NOT ACCEPTED SINCE IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT YOU WERE A NONRESPONSIBLE PROSPECTIVE CONTRACTOR.

BECAUSE OF YOUR COMPANY'S POOR PERFORMANCE UNDER CONTRACT NO. DA29 040- AMC-1701/R) WHICH WAS FINALLY TERMINATED FOR DEFAULT IN DELIVERY DESPITE THREE EXTENSIONS OF THE DELIVERY DATE, THE CONTRACTING OFFICER REQUESTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE, HOUSTON, TEXAS, TO CONDUCT A PREAWARD SURVEY OF YOUR FIRM. IT WAS FOUND THAT YOUR GENERAL PERFORMANCE RECORD WAS UNSATISFACTORY. OF EIGHT CONTRACTS CURRENTLY BEING PERFORMED, FOUR WERE DELINQUENT AND AT THAT TIME IT APPEARED THAT TWO OTHER CONTRACTS WOULD BE IN A DELINQUENT STATUS BEFORE THE END OF MAY 1967. OF FOUR CONTRACTS COMPLETED BY YOUR COMPANY DURING THE PAST 18 MONTHS, THREE WERE INEXCUSABLY DELINQUENT IN DELIVERY, THE AVERAGE PERIOD OF DELINQUENCY BEING 90 DAYS. THE PREAWARD SURVEY THEREFORE RECOMMENDED THAT NO AWARD BE MADE TO YOUR COMPANY. FURTHER, THE CONTRACTING OFFICER HAD BEEN INFORMED BY KIRTLAND AIR FORCE BASE, NEW MEXICO, THAT IT HAD TERMINATED TWO CONTRACTS WITH YOUR COMPANY DURING 1964 FOR POOR ENGINEERING AND LACK OF QUALITY CONTROL. THE FIRST OF THESE CONTRACTS WAS 74 DAYS LATE IN DELIVERY AND THE SECOND 102 DAYS LATE IN DELIVERY. THE CONTRACTING OFFICER THEREFORE DETERMINED THAT YOUR COMPANY WAS NONRESPONSIBLE BECAUSE PAST UNSATISFACTORY PERFORMANCES AND DELINQUENCIES IN DELIVERY SHOWED A FAILURE TO APPLY THE NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB. SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903.1 (III). IT WAS FURTHER DETERMINED THAT IT WAS NOT NECESSARY TO SUBMIT THE QUESTION OF YOUR COMPANY'S RESPONSIBILITY TO THE SMALL BUSINESS ADMINISTRATION SINCE YOUR NONRESPONSIBILITY WAS NOT ATTRIBUTABLE TO A LACK OF CAPACITY OR CREDIT. SEE ASPR 1-705.4 (C) (V) AND (VI); 37 COMP. GEN. 798. THEREAFTER, CONTRACT DAAD07-67-C-0347 WAS AWARDED ON JUNE 2, 1967, TO THE ARNOUX PRODUCTS DIVISION OF GJM, INC., OF GLENDALE, CALIFORNIA, AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. FIND NO LEGAL BASIS TO QUESTION THIS AWARD.

IT IS PROVIDED AT 10 U.S.C. 2305 (C) THAT CONTRACTS SHALL BE AWARDED PURSUANT TO FORMAL ADVERTISING ONLY TO "THE RESPONSIBLE BIDDER.' CONSISTENT WITH THIS STATUTORY REQUIREMENT, ASPR 1 904.1PRECLUDES AWARDS UNLESS THE CONTRACTING OFFICER FIRST MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE MEANING OF ASPR 1-902. ONE OF THE FACTORS OF RESPONSIBILITY SET OUT AT ASPR 1-903.1 (III) IS THAT A PROSPECTIVE CONTRACTOR TO QUALIFY AS RESPONSIBLE MUST HAVE A SATISFACTORY RECORD OF PERFORMANCE. THE DETERMINATION OF NONRESPONSIBILITY MADE BY THE CONTRACTING OFFICER HERE WAS BASED UPON THE RECORD OF PRIOR POOR CONTRACT PERFORMANCE BY YOUR COMPANY. ONE OF THE SIGNIFICANT FACTORS IN DETERMINING THE RESPONSIBILITY OF A BIDDER IS HIS APPARENT ABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS SET OUT IN THE INVITATION. SUCH ABILITY IS FOR DETERMINATION PRIMARILY BY THE CONTRACTING AGENCY AND, ABSENT A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR, WE WILL NOT QUESTION THE VALIDITY OF THE DETERMINATION. 37 COMP. GEN. 430, 435. THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S PROBABLE ABILITY TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH MUST, OF NECESSITY, BE A MATTER OF JUDGMENT. SUCH JUDGMENT SHOULD, OF COURSE, BE BASED ON FACT AND REACHED IN GOOD FAITH; HOWEVER, IT IS ONLY PROPER THAT IT BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICER INVOLVED SINCE HE IS IN THE BEST POSITION TO ASSESS RESPONSIBILITY. ALSO, HE IS THE OFFICIAL WHO MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED IN OBTAINING REQUIRED PERFORMANCE AND THE ONE WHO MUST MAINTAIN DAY-TO-DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF. 39 COMP. GEN. 705, 711.

IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED. 43 COMP. GEN. 228; ID. 298.