B-165263, DEC. 5, 1968

B-165263, DEC. 5, 1968

TO TRANSLATION CONSULTANTS, LIMITED:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 13, 1968, PROTESTING THE AWARDING OF ANY CONTRACTS UNDER DEFENSE SUPPLY SERVICE WASHINGTON (DEPARTMENT OF THE ARMY), INVITATIONS FOR BIDS NOS. DAHC15 68-B -0106, DAHC15-68-B-0107, DAHC15-68-B-0108 AND DAHC15-68-B-0119, ISSUED IN JULY 1968 FOR TRANSLATION SERVICES TO BE PERFORMED BY SUCCESSFUL BIDDERS FROM THE EFFECTIVE DATES OF THEIR CONTRACTS THROUGH JUNE 30, 1969.

YOUR PROTEST WAS BASED ON THE GROUND THAT BIDDERS WERE BEING, OR HAD BEEN, CONSIDERED FOR AWARD IN VIOLATION OF PROVISIONS IN THE INVITATIONS HAVING REFERENCE TO SECURITY REQUIREMENTS (ARTICLE V OF THE FIRST INVITATION AND ARTICLE IX OF THE THIRD INVITATION), AND TO A PROSPECTIVE CONTRACTOR'S LOCATION AND QUALIFICATIONS (ARTICLE VIII OF EACH OF THE FOUR INVITATIONS).

WE REQUESTED AND RECEIVED AN ADMINISTRATIVE REPORT ON YOUR PROTEST FROM THE DEPARTMENT OF THE ARMY. THE LOWEST BIDS WERE SUBMITTED UNDER THE RESPECTIVE INVITATIONS BY YOUR COMPANY; TECHTRAN CORPORATION, GLEN BURNIE, MARYLAND; MCGREGOR AND WERNER, INCORPORATED, WASHINGTON, D.C.; AND B.T. PASH AND ASSOCIATES, SAN FRANCISCO, CALIFORNIA. AN AWARD WAS MADE TO MCGREGOR AND WERNER, INCORPORATED, ON AUGUST 27, 1968, AND AN AWARD WAS MADE TO YOUR COMPANY ON SEPTEMBER 20, 1968. THE DEPARTMENT OF THE ARMY CONSIDERS THAT AWARDS SHOULD BE MADE TO THE TWO OTHER COMPANIES. HOWEVER, AWARD ACTIONS UNDER INVITATIONS NOS. DAHC15-68-B 0107 AND DAHC15-68-B-0119 HAVE BEEN SUSPENDED PENDING THE CONSIDERATION OF YOUR PROTEST BY OUR OFFICE.

THE RECORD SHOWS THAT THE CONTRACTING OFFICER BELIEVED THAT IT WAS UNNECESSARY TO REQUEST THAT A PREAWARD SURVEY BE MADE FOR THE PURPOSE OF DETERMINING YOUR QUALIFICATIONS FOR RECEIVING A CONTRACT AWARD UNDER INVITATION NO. DAHC15-68-B-0106. HOWEVER, HE REQUESTED THE APPROPRIATE DISTRICT OFFICE OF DEFENSE CONTRACT ADMINISTRATIVE SERVICES, AN AGENCY OF THE DEPARTMENT OF DEFENSE, TO PERFORM PREAWARD SURVEYS CONCERNING THE CAPABILITIES OF THE LOW BIDDERS UNDER THE OTHER THREE INVITATIONS. IT WAS DETERMINED THAT THOSE BIDDERS QUALIFIED AS RESPONSIBLE PROSPECTIVE CONTRACTORS UNDER THE TERMS OF THE INVITATIONS AND THE STANDARDS FOR DETERMINING RESPONSIBILITY AS SET FORTH IN PART 9, SECTION I, ARMED SERVICES PROCUREMENT REGULATION (ASPR).

MCGREGOR AND WERNER, INCORPORATED, PROPOSED TO PERFORM THE TRANSLATION SERVICES AS DESCRIBED IN INVITATION NO. DAHC15-68-B-0108 AT AN EXISTING FACILITY LOCATED IN WASHINGTON, D.C. THIS MET THE REQUIREMENT OF ARTICLE VIII, PARAGRAPH (B) OF THE INVITATION WHICH PROVIDES FOR THE MAINTENANCE BY THE SUCCESSFUL BIDDER OF FACILITIES WITHIN THE WASHINGTON, D.C. METROPOLITAN AREA, DEFINED IN PARAGRAPH (B) AS THAT AREA WITHIN 20 MILES OF THE NEAREST DISTRICT OF COLUMBIA BOUNDARY LINE. MCGREGOR AND WERNER, INCORPORATED, ALSO INSERTED IN ITS BID CERTAIN INFORMATION REGARDING THE SECURITY REQUIREMENTS OF ARTICLE IX OF THE INVITATION. SUBSEQUENT TO AN AWARD OF A CONTRACT TO THAT FIRM AND RECEIPT OF NOTICE OF YOUR PROTEST, THE COMPANY SUBMITTED ADDITIONAL INFORMATION RELATIVE TO THE NUMBER AND NAMES OF ITS EMPLOYEES WHO HAD BEEN GRANTED SECURITY CLEARANCES BUT IT DOES NOT APPEAR THAT THE FURNISHING OF SUCH ADDITIONAL INFORMATION TENDS IN ANY MANNER TO INDICATE THAT THE ORIGINAL DETERMINATION OF COMPLIANCE WITH THE INFORMATIONAL REQUIREMENTS OF ARTICLE IX OF THE INVITATION WAS ERRONEOUS IN ANY RESPECT.

NO SPECIAL SECURITY REQUIREMENTS WERE PROVIDED FOR UNDER THE TERMS OF INVITATIONS NOS. DAHC15-68-B-0107 AND DAHC15-68-B-0119, EXCEPT IN REGARD TO A PROHIBITION AGAINST THE DISSEMINATION OR PUBLICATION OF INFORMATION, OTHER THAN BETWEEN CONTRACTORS AND THEIR SUBCONTRACTORS, WITHOUT THE PRIOR WRITTEN APPROVAL OF THE PROJECT OFFICER. IT WAS DETERMINED THAT THE TWO LOW BIDDERS UNDER THOSE INVITATIONS HAD THE NECESSARY QUALIFICATIONS AND INFORMATION WAS DEVELOPED DURING OR AFTER THE PREAWARD SURVEYS THAT EACH OF THOSE BIDDERS PROPOSED TO PERFORM THE REQUIRED SERVICES AT A FACILITY LOCATED WITHIN THE WASHINGTON, D.C. METROPOLITAN AREA. THE TECHTRAN CORPORATION ADVISED THAT IT WOULD USE THE FACILITIES OF ITS WHEATON, MARYLAND, OFFICE, WHICH IS LESS THAN 20 MILES FROM THE NEAREST DISTRICT OF COLUMBIA BOUNDARY LINE. B.T. PASH AND ASSOCIATES INDICATED IN ITS BID THAT THE CONTACT FOR PROMPT ADMINISTRATION OF THE CONTRACT WAS LOCATED IN MCLEAN, VIRGINIA. HOWEVER, IN SEPTEMBER, THE FIRM DESIGNATED A DIFFERENT CONTACT REPRESENTATIVE WITHIN THE CITY OF WASHINGTON, D.C.

ARTICLE VIII OF INVITATION NO. DAHC15-68-B-0119 DOES NOT REQUIRE THE ESTABLISHMENT OF A FACILITY WITHIN THE WASHINGTON, D.C. METROPOLITAN AREA PRIOR TO CONTRACT AWARD. THE ESTABLISHMENT AND MAINTENANCE OF SUCH A FACILITY WOULD BE REQUIRED FOR CONTRACT PERFORMANCE, HOWEVER, AND IT IS PROVIDED THAT FAILURE TO MAINTAIN SUCH A FACILITY WITHIN THE WASHINGTON, D.C. METROPOLITAN AREA WOULD BE CAUSE FOR TERMINATION OF THE CONTRACT AWARDED PURSUANT TO THE INVITATION IN ACCORDANCE WITH CLAUSE 11 OF THE GENERAL PROVISIONS ENTITLED "DEFAULT.'

WHETHER A BIDDER POSSESSED AN ADEQUATE FACILITY WITHIN THE PRESCRIBED AREA WOULD BE A MATTER FOR CONSIDERATION IN DETERMINING THAT BIDDER'S RESPONSIBILITY. HOWEVER, UNDER THE APPLICABLE PROVISION OF PART 9, SECTION I, ASPR, THERE MUST BE CONSIDERED IN THE USUAL CASE, WHERE A PROSPECTIVE CONTRACTOR DOES NOT ALREADY POSSESS THE NECESSARY TECHNICAL EQUIPMENT AND FACILITIES, THE QUESTION WHETHER THE PROSPECTIVE CONTRACTOR HAS THE ABILITY TO OBTAIN THEM. SEE ASPR 1 903.2 (II).

AS INDICATED IN 43 COMP. GEN. 228, A DECISION WHETHER A PROSPECTIVE CONTRACTOR IS TO BE CONSIDERED RESPONSIBLE TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH OF NECESSITY MUST BE A MATTER OF JUDGMENT AND THE ADMINISTRATIVE DETERMINATION SHOULD BE ACCORDED FINALITY ABSENT A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR. THE CIRCUMSTANCES HERE INVOLVED, WE FIND NO BASIS FOR QUESTIONING THE REASONABLENESS OF THE DETERMINATIONS OF RESPONSIBILITY ON THE PART OF ANY OF THE FOUR LOW BIDDERS. NEITHER DO WE FIND ANY BASIS FOR QUESTIONING THE RESPONSIVENESS OF ANY OF THE FOUR BIDS SO FAR AS CONCERNS YOUR APPARENT BELIEF THAT MCGREGOR AND WERNER, INCORPORATED, DID NOT PROVIDE ADEQUATE INFORMATION IN THE FIRST INSTANCE CONCERNING THE ARTICLE IX SECURITY REQUIREMENTS OF INVITATION NO. DAHC15-68-B-0108. FURTHERMORE, IN OUR OPINION, THERE EXISTS NO PROPER BASIS FOR ANY DETERMINATION THAT THE FAVORABLE CONSIDERATION OF THE LOW BIDS SUBMITTED BY THE THREE FIRMS OTHER THAN YOUR COMPANY HAD OR WOULD HAVE THE EFFECT OF VIOLATING THE ARTICLE VIII PROVISIONS OF THE THREE INVITATIONS ON WHICH THEY WERE THE LOW BIDDERS, OR THE ARTICLE IX SECURITY REQUIREMENTS PROVISIONS OF INVITATION NO. DAHC15-68 B-0108.

ACCORDINGLY, YOUR PROTEST TO OUR OFFICE IN THE MATTER MUST BE, AND IS, HEREBY DENIED.