B-164821, SEPT. 12, 1968

B-164821, SEPT. 12, 1968

TO PLATT MANUFACTURING CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER OF JULY 11, 1968, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ADVANCE DEVELOPMENT MANUFACTURING COMPANY (ADVANCE) UNDER INVITATION FOR BIDS NO. N00156 68-B- 0807, ISSUED ON MAY 3, 1968, BY THE NAVAL AIR ENGINEERING CENTER, PHILADELPHIA, PENNSYLVANIA.

THE SUBJECT INVITATION CALLED FOR THE MANUFACTURE AND DELIVERY OF 300 SHEAVE SUB-ASSEMBLIES. YOUR FIRM OFFERED THE LOWEST PRICE OF $477.50 EACH, F.O.B. ORIGIN, OR A TOTAL BID OF $143,250. THE SECOND LOWEST BIDDER WAS ADVANCE WITH A BID OF $520 EACH, F.O.B. ORIGIN, FOR A TOTAL BID OF $156,000.

ON JUNE 10, 1968, THE CONTRACTING OFFICER DETERMINED IN WRITING THAT YOUR COMPANY WAS NONRESPONSIBLE, ON THE BASIS OF INFORMATION CONTAINED IN A NEGATIVE PRE-AWARD SURVEY REPORT ON YOUR COMPANY FURNISHED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), DAYTON, OHIO, DATED MAY 13, 1968. WHILE THAT SURVEY WAS CONDUCTED IN CONNECTION WITH INVITATION NO. N00156-68-B-0337, CALLING FOR ITEMS SIMILAR TO THOSE SOLICITED IN THIS PROCUREMENT, INFORMATION WAS RECEIVED BY THE CONTRACTING OFFICER INDICATING THAT NO MATERIAL CHANGE IN YOUR SITUATION HAD OCCURRED IN THE FEW WEEKS SINCE THE REPORT.

THE "NO AWARD" RECOMMENDATION MADE BY THE SURVEY TEAM IN THE MAY 13 REPORT WAS BASED ON ITS FINDINGS THAT YOUR COMPANY'S PERFORMANCE RECORD ON OTHER CONTRACTS SHOWED A DELINQUENCY RATE OF 79 PERCENT THROUGH THE YEAR 1967 AND JANUARY THROUGH APRIL OF 1968. IN SUMMARY, THE SURVEY TEAM STATED:

"OWING TO PAST PERFORMANCE OF BIDDER UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903.1 (III) REGARDING FAILURE TO APPLY THE NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB, POOR PERFORMANCE IN THE QUALITY ASSURANCE AREA AND IN GENERAL FAILURE TO PROPERLY COMPLY WITH CONTRACTUAL REQUIREMENTS, A NO AWARD RECOMMENDATION WAS MADE.'

IN VIEW OF THE FOREGOING INFORMATION, AND THE ADVICE FURNISHED ON JUNE 5, 1968, BY A REPRESENTATIVE OF THE SURVEY TEAM THAT THERE WAS NO CHANGE OR ADDITIONAL FACTS TO CHANGE THE MAY 13 PRE-AWARD FINDING OF "NO AWARD," THE CONTRACTING OFFICER MADE HIS DETERMINATION THAT YOUR FIRM WAS NONRESPONSIBLE, WITHIN THE MEANING OF ASPR 1-903.1 (III), FOR FAILURE TO APPLY THE NECESSARY TENACITY AND PERSEVERANCE TO ASSURE DELIVERY WITHIN THE TERMS OF THE CONTRACT. ACCORDINGLY, AWARD WAS MADE TO ADVANCE ON JUNE 27, 1968, THE NEXT LOWEST RESPONSIBLE BIDDER.

ASPR 1-903.1 (III) PROVIDES THAT A PROSPECTIVE CONTRACTOR MUST: "/III) HAVE A SATISFACTORY RECORD OF PERFORMANCE (CONTRACTORS WHO ARE SERIOUSLY DEFICIENT IN CURRENT CONTRACT PERFORMANCE, WHEN THE NUMBER OF CONTRACTS AND THE EXTENT OF DEFICIENCY OF EACH ARE CONSIDERED, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR CIRCUMSTANCES PROPERLY BEYOND THE CONTROL OF THE CONTRACTOR, BE PRESUMED TO BE UNABLE TO MEET THIS REQUIREMENT). PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB, SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY AND IN THE CASE OF SMALL BUSINESS CONCERNS, SHALL NOT REQUIRE SUBMISSION OF THE CASE TO THE SMALL BUSINESS ADMINISTRATION * * *"

WHERE A CONTRACT HAS BEEN AWARDED TO OTHER THAN THE LOW BIDDER ON THE GROUND THAT THE LOW BIDDER IS NOT RESPONSIBLE, THE ONLY QUESTION BEFORE OUR OFFICE ON A PROTEST BY THE REJECTED BIDDER IS WHETHER OR NOT THERE IS IN THE RECORD ANY REASONABLE SUPPORT FOR THE ACTION TAKEN. THE RESPONSIBILITY FOR MAKING THE DECISION AS TO A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY, AND FOR REJECTION OR ACCEPTANCE OF ITS BID, LIES PRIMARILY WITH THE CONTRACTING OFFICER, 37 COMP. GEN. 430, 43 ID. 228, AND 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. 42; 37 ID. 430; 38 ID. 131. THUS, THE ONLY QUESTION FOR CONSIDERATION IS WHETHER THE DETERMINATION ADMINISTRATIVELY MADE OF YOUR NONRESPONSIBILITY MEETS THE CRITERIA DISCUSSED.

PARAGRAPH 1-902 OF ASPR PROVIDES THAT PURCHASES SHALL BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. ASPR 1-904.1 REQUIRES THE CONTRACTING OFFICER TO MAKE A DECISION REGARDING THE RESPONSIBILITY OF THE PROSPECTIVE CONTRACTOR. THIS REGULATION FURTHER PROVIDES THAT THIS DETERMINATION OF RESPONSIBILITY IS TO BE MADE WITHIN THE FRAMEWORK OF ASPR 1-902 AND ASPR 1-903. ASPR 1-903 PROVIDES FOR MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS. ASPR 1-903.1 (II) PROVIDES THAT PROSPECTIVE CONTRACTORS MUST BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE, TAKING INTO CONSIDERATION ALL EXISTING BUSINESS COMMITMENTS, COMMERCIAL AS WELL AS GOVERNMENTAL. ASPR 1 -903.1 (III) REQUIRES THAT THE PROSPECTIVE CONTRACTOR HAVE A SATISFACTORY RECORD OF PERFORMANCE.

IN YOUR PROTEST YOU HAVE URGED THAT REVIEW SHOULD HAVE BEEN MADE OF THE MATTER BY THE SMALL BUSINESS ADMINISTRATION (SBA). IN THIS CONNECTION, IT SHOULD BE POINTED OUT THAT UNDER ASPR 1-903.1 (III), IN THE CASE OF A FINDING OF NONRESPONSIBILITY BASED ON A RECORD OF UNSATISFACTORY PERFORMANCE, REFERRAL TO SBA IS REQUIRED ONLY IF THE DELINQUENT PERFORMANCE WAS DUE SOLELY TO INADEQUATE CAPACITY OR CREDIT. SINCE THE CONTRACTING OFFICER ATTRIBUTED YOUR DELINQUENCY TO OTHER CAUSES ON THE BASIS OF INFORMATION IN THE SURVEY REPORT WHICH REASONABLY SUPPORTED HIS CONCLUSION, REFERENCE TO SBA WAS EXCUSED BY THE REGULATION CITED. IT ALSO APPEARS THAT THE CONTRACTING OFFICER HAD BEEN ADVISED BY SBA THAT YOUR FIRM HAD ELECTED NOT TO APPLY FOR A CERTIFICATE OF COMPETENCY ON THE PRIOR PROCUREMENT, AND THERE IS NO RECORD OF YOUR HAVING PROTESTED THE CONTRACTING OFFICER'S FINDINGS IN THAT INSTANCE.

SINCE BIDS UNDER THIS INVITATION WERE OPENED ON JUNE 4, 1968, THE DETERMINATION OF YOUR RESPONSIBILITY ON THE BASIS OF THE DCASD SURVEY REPORT OF MAY 13, 1968, AS UPDATED ON JUNE 5, 1968, DOES NOT APPEAR TO HAVE BEEN UNREASONABLE OR UNAUTHORIZED.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED. WITH RESPECT TO FUTURE PROCUREMENTS, THE DETERMINATION OF YOUR FIRM'S RESPONSIBILITY WILL HAVE TO BE BASED ON THE CIRCUMSTANCES AS OF THAT TIME.