B-165304, OCT. 31, 1968

B-165304, OCT. 31, 1968

TO DANIEL SHERMAN:

WE REFER TO YOUR LETTER OF SEPTEMBER 19, 1968, WITH ENCLOSURE, PROTESTING ON BEHALF OF TECHNICAL DEVELOPMENT COMPANY, THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. DSA 700-68-B-3334 TO COROMATIC, INC., ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO.

THE SUBJECT IFB, DATED MAY 15, 1968, CALLED FOR PREPAID FREIGHT DELIVERY OF 192 SIGHT LIQUID INDICATORS, TO BE MANUFACTURED IN ACCORDANCE WITH TECHNICAL DEVELOPMENT CO. DRAWING NO. S 85PA. THREE BIDS WERE RECEIVED AND OPENED ON JUNE 14, 1968, AS FOLLOWS:

COMPANY PRICE

A.C. BALL COMPANY $27.50 LESS 1 PERCENT 20 DAYS

TECHNICAL DEVELOPMENT COMPANY 16.75 NET 30 DAYS

COROMATIC, INC. 10.00 LESS 2 PERCENT 20 DAYS

ON JULY 16, 1968, THE CONTRACT WAS AWARDED TO COROMATIC, INC., FOR THE TOTAL AMOUNT OF $1,920.00. IT APPEARS THAT YOUR PROTEST IS BASED ON THE CONTENTION THAT COROMATIC IS NOT A RESPONSIBLE CONTRACTOR.

YOU QUESTION THE AWARD OF THE CONTRACT BECAUSE COROMATIC DOES NOT HAVE AN ENGINEERING OR MANUFACTURING PLANT. YOU ALSO MAILED US A COPY OF A DUN AND BRADSTREET BUSINESS REPORT, DATED JUNE 28, 1968, WHICH STATES THAT COROMATIC HAS ONLY TWO EMPLOYEES.

WITH RESPECT TO THE PROPRIETY OF AN AWARD TO COROMATIC, THE CONTRACTING OFFICER STATES, IN PART, THAT:

"INFORMATION AVAILABLE AT THIS CENTER AT THE TIME OF AWARD REVEALS THAT COROMATIC IS A NEW JERSEY CORPORATION WHICH HAS BEEN IN BUSINESS SINCE ABOUT SEPTEMBER OF 1967. IT IS A SMALL BUSINESS MANUFACTURER WITH A NET WORTH OF APPROXIMATELY $15,000 AS OF 19 APRIL 1968. THIS INFORMATION FURTHER REVEALS THAT COROMATIC HAD APPROXIMATELY 2,000 SQ. FEET AVAILABLE AS MANUFACTURING SPACE AND 1,000 SQ. FEET AVAILABLE AS WAREHOUSE SPACE. THE FIRM EMPLOYED 5 PERSONS.

"NO PRE-AWARD SURVEY WAS CONDUCTED FOR THE INSTANT PROCUREMENT. DUE TO THE PROTEST, DCASD, NEWARK WAS CONTACTED FOR FURTHER INFORMATION ON COROMATIC. A PRE-AWARD SURVEY CONDUCTED BY DCASD, NEWARK, DATED 24 SEPTEMBER 1968 WAS FORWARDED TO THE CONTRACTING OFFICER. THIS SURVEY WAS CONDUCTED FOR THE U.S. ARMY MISSILE COMMAND (* * *) FOR A PROPOSED CONTRACT FOR AN ITEM OF SIMILAR COMPLEXITY AND DOLLAR AMOUNT AS HERE INVOLVED AND IT REFLECTS THAT COROMATIC HAD A TOTAL OF 14 EMPLOYEES AND A NET WORTH OF $19,809. THIS SURVEY WAS MADE TO DETERMINE THE RESPONSIBILITY OF THE FIRM TO SUPPLY COMPRESSION TUBES, AND THE PROPOSED CONTRACT WAS OF THE TOTAL VALUE OF $2,825. AWARD WAS RECOMMENDED ON A FINDING THAT COROMATIC SATISFIED THE RESPONSIBILITY REQUIREMENTS OF ASPR 1 -900 ET SEQ.'

THE RECORD ALSO INDICATES THAT THE COMPONENTS OF THE LIQUID SIGHT INDICATORS WILL BE MANUFACTURED BY SUBCONTRACTORS, AND THAT ONLY ASSEMBLY, PACKING AND SHIPPING WILL OCCUR AT THE COROMATIC FACILITIES. IN ADDITION, THE PRE-AWARD SURVEY OF COROMATIC, DATED SEPTEMBER 24, 1968, STATED THAT THE CONTRACTOR WAS CURRENTLY PERFORMING 12 PRIME GOVERNMENT CONTRACTS AND HAD PREVIOUSLY MADE DELIVERY ON SOME 15 TO 20 CONTRACTS AND SUBCONTRACTS.

SINCE THIS PROCUREMENT IS LESS THAN $10,000 IN AMOUNT, THE STIPULATION THAT THE CONTRACTOR IS A REGULAR DEALER OR MANUFACTURER REQUIRED BY THE WALSH-HEALEY PUBLIC CONTRACTS ACT (41 U.S.C. 35-45) IN SUPPLY CONTRACTS IN EXCESS OF THAT AMOUNT IS NOT REQUIRED AND HAS NO BEARING ON COROMATIC'S RESPONSIBILITY.

OUR DECISION OF AUGUST 19, 1958, 38 COMP. GEN. 131, AT 133 STATED THAT:

"CONCERNING THE MATTER OF THE RESPONSIBILITY OF THE SUCCESSFUL BIDDER, OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF A BIDDER'S OVER -ALL RESPONSIBILITY IS PRIMARILY THAT OF THE CONTRACTING OFFICER AND NOT OF THE GENERAL ACCOUNTING OFFICE. SEE 33 COMP. GEN. 549. THE RECORD ESTABLISHES THAT THE NECESSARY DETERMINATION REQUIRED BY REGULATION AS TO THE RESPONSIBILITY * * * WAS MADE BY THE CONTRACTING OFFICER AND, IN THE ABSENCE OF EVIDENCE OF CAPRICIOUS OR ARBITRARY ACTION TAKEN, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION THAT THE SUCCESSFUL BIDDER WAS FINANCIALLY ABLE AND TECHNICALLY CAPABLE OF PERFORMING THE TRACT.'

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO QUESTION THE CONTRACTING OFFICER'S CONCLUSION THAT COROMATIC IS A RESPONSIBLE BIDDER WITHIN THE MEANING OF SECTION 1-903 OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH PRESCRIBES THE STANDARDS FOR THE AFFIRMATIVE DETERMINATION OF RESPONSIBILITY REQUIRED BY SECTION 1-904 AS A PREREQUISITE TO AWARD OF A CONTRACT.