B-165562, JAN. 6, 1969

B-165562, JAN. 6, 1969

TO PLYMOUTH-RUSCO, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 1, 1968, PROTESTING THE ACTION OF THE DEPARTMENT OF THE NAVY IN REJECTING YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N00163-69-B-0161.

THE NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA, BY THE CITED INVITATION ISSUED ON SEPTEMBER 5, 1968, REQUESTED BIDS FOR FURNISHING 1,420 PANEL RELAY CASTINGS UNDER ITEMS 1 AND 2 IN ACCORDANCE WITH NAVAIR DRAWINGS 68A27F61 AND 68A27F63, REVISION "A.' PROSPECTIVE BIDDERS WERE ADVISED THAT DELIVERY OF THE CASTINGS WAS TO COMMENCE WITHIN 50 DAYS AFTER DATE OF AWARD OF THE CONTRACT.

THE RECORD SHOWS THAT 15 BIDS WERE RECEIVED ON THE CASTINGS AND THAT THE FIVE LOWEST BIDS WERE AS FOLLOWS:

BIDDER ITEM 1 ITEM 2 TOTAL

------ ------ ------ ----- THE R.P. COLEMAN CO., INC.

$ 5.35 $ 4.28 $ 6,837.30 ACRA-CAST INC. 9.50 8.00 12,425.00 PLYMOUTH- RUSCO, INC. 10.42 9.96 14,469.80 SUFFOLK ENVIRONMENTAL

MAGNETICS, INC. 11.69 10.83 15,989.20 TRUECAST PRECISION

CASTINGS, INC. 13.65 12.56 18,609.10

THE LOW BID OF R.P. COLEMAN WAS REJECTED AS BEING NONRESPONSIVE BECAUSE THE FIRM HAD OFFERED DELIVERY OF THE CASTINGS WITHIN 90 DAYS RATHER THAN 50 DAYS AS REQUIRED BY THE DELIVERY PROVISIONS OF THE INVITATION FOR BIDS. ALSO, THE BIDS OF YOUR FIRM, ACRA-CAST INC., AND SUFFOLK ENVIRONMENTAL MAGNETICS, INC., WERE REJECTED BECAUSE THE CONTRACTING OFFICER HAD DETERMINED THAT YOUR FIRM AND THE OTHER COMPANIES WERE NONRESPONSIBLE FOR PURPOSES OF THIS PROCUREMENT. REFERRAL TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION OF THE ISSUANCE OF A CERTIFICATE OF COMPETENCY WAS CONSIDERED BUT WAS REJECTED BECAUSE OF THE URGENT NEED FOR THE CASTINGS, AND A WRITTEN STATEMENT SETTING FORTH THE REASONS FOR NONREFERRAL TO SBA WAS MADE PART OF THE CONTRACT FILE IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4 (C) (IV). THAT SUBSECTION PROVIDES:

"A REFERRAL NEED NOT BE MADE TO THE SBA IF THE CONTRACTING OFFICER CERTIFIES IN WRITING THAT THE AWARD MUST BE MADE WITHOUT DELAY, INCLUDES SUCH CERTIFICATE AND SUPPORTING DOCUMENTATION IN THE CONTRACT FILE, AND PROMPTLY FURNISHES A COPY TO THE SBA.'

ON OCTOBER 28, 1968, A CONTRACT FOR FURNISHING THE CASTINGS WAS AWARDED TO TRUECAST PRECISION CASTINGS, INC.

YOU CONTEND THAT THE CONTRACT SHOULD HAVE BEEN AWARDED TO YOUR FIRM BECAUSE YOUR BID WAS $4,139.30 LOWER THAN THE BID SUBMITTED BY TRUECAST PRECISION CASTINGS, INC.

IN A DETERMINATION DATED OCTOBER 25, 1968, WHEREIN HE FOUND THAT YOUR FIRM WAS NONRESPONSIBLE FOR PURPOSES OF THIS PROCUREMENT, THE CONTRACTING OFFICER MADE THE FOLLOWING COMMENTS WITH RESPECT TO YOUR FIRM'S RESPONSIBILITY: "4. THE ITEMS TO BE FURNISHED ARE ALUMINUM ALLOY CASTINGS IN ACCORDANCE WITH THE DRAWINGS SHOWN ABOVE, AND THE HOLDING OF SOME DIMENSIONS TO AS LOW AS PLUS OR MINUS .010 IS REQUIRED. THE CASTINGS ARE DESIGNED TO FACILITATE AND THE SPECIFICATIONS REQUIRE THE CASTINGS TO BE FABRICATED BY THE INVESTMENT CASTING PROCESS. ON 9 OCTOBER 1968 A TECHNICAL PERSON FROM THE NAVAL AVIONICS FACILITY FAMILIAR WITH DIFFICULTIES INVOLVED IN FABRICATING CASTINGS OF THIS TYPE VISITED PLYMOUTH-RUSCO BY REQUEST OF THE CONTRACTING OFFICER. A COPY OF THE TRIP REPORT DATED 17 OCTOBER 1968, ATTACHED AS ENCLOSURE (1), STATES THAT PLYMOUTH-RUSCO IS NOT AN ACCEPTABLE SOURCE FOR THESE CASTINGS SINCE HE INTENDED TO PURCHASE THE CASTINGS FROM A PLASTER CAST FOUNDRY AND MACHINE THEM TO DIMENSIONS AT PLYMOUTH-RUSCO. AS INDICATED ABOVE, THE SPECIFICATIONS REQUIRE THE INVESTMENT CASTING PROCESS, AND IT IS THE OPINION OF THE TECHNICAL PEOPLE AT THIS FACILITY THAT AN ATTEMPT TO MAKE THESE CASTINGS BY THE PLASTER CAST METHOD AND MACHINE TO DIMENSION WOULD NOT BE SUCCESSFUL SINCE THE PLASTER CAST METHOD REQUIRES -DRAFT- AND THE SPECIFICATIONS DO NOT ALLOW FOR DRAFT AS SUCH. ANY DRAFT ATTEMPTED WOULD HAVE TO COME FROM THE TOLERANCES AND IT IS MOST UNLIKELY THAT THE PRODUCT DELIVERED WOULD MEET THE DIMENSIONAL REQUIREMENTS OF THE DRAWINGS. "5. ON 10 OCTOBER 1968 A PREAWARD SURVEY OF PLYMOUTH-RUSCO WAS REQUESTED FROM DCASR DETROIT. THE REPORT WAS REQUESTED BY 22 OCTOBER 1968. BY DCASR DETROIT FORM LETTER DATED 21 OCTOBER 1968, THIS FACILITY WAS ADVISED THAT THE ANTICIPATED FORWARDING DATE FOR THE REPORT WAS 30 OCTOBER 1968. TELEPHONE ON 25 OCTOBER 1968 DCASR DETROIT ADVISED THEY WERE WAITING ON A FINANCIAL REPORT. THE FINANCIAL REPORT WILL DETERMINE WHETHER OR NOT THEY WILL RECOMMEND AWARD. THEY DID ADVISE THAT ELEMENTS OTHER THAN FINANCIAL WERE AFFIRMATIVE. "6. THE EXACT DETAILS OF HOW THE DCASR COULD DETERMINE PLYMOUTH-RUSCO RESPONSIBLE FOR THIS PROCUREMENT AND MAYBE RECOMMEND COMPLETE AWARD PROVIDING THE FINANCIAL PORTION IS AFFIRMATIVE IS UNKNOWN BUT IN VIEW OF THE DETAILS PRESENTED IN THE NAFI REPRESENTATIVE'S TRIP REPORT, THE CONTRACTING OFFICER IS NOT CONVINCED THAT AWARD OF THIS CONTRACT TO PLYMOUTH-RUSCO WOULD RESULT IN DELIVERY OF ACCEPTABLE CASTINGS WITHIN THE TIME FRAME ALLOWED.'

WHILE THE ABOVE-QUOTED DETERMINATION INDICATES THAT THE PREAWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, DETROIT, WAS FAVORABLE TO YOUR FIRM, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO ACCEPT THE FINDINGS OF THE PREAWARD SURVEY TEAM AS CONCLUSIVE SINCE HE HAD OTHER INFORMATION BEARING ADVERSELY ON YOUR RESPONSIBILITY. THERE IS NO REGULATORY REQUIREMENT THAT AN AWARD BE MADE TO A BIDDER SOLELY BECAUSE OF A FAVORABLE PREAWARD SURVEY. B 164187, OCTOBER 25, 1968.

ASPR 1-902 PROVIDES THAT PURCHASES SHALL BE MADE FROM, AND CONTRACTS SHALL BE AWARDED TO, RESPONSIBLE PROSPECTIVE CONTRACTORS ONLY. RESPONSIBLE PROSPECTIVE CONTRACTOR IS ONE WHICH MEETS THE MINIMUM STANDARDS SET FORTH IN ASPR 1-903.1 AND 1-903.2 AND APPLICABLE SPECIAL STANDARDS. THAT SECTION FURTHER PROVIDES THAT THE AWARD OF A CONTRACT TO A SUPPLIER BASED ON LOWEST EVALUATED PRICE ALONE CAN BE FALSE ECONOMY IF THERE IS SUBSEQUENT DEFAULT, LATE DELIVERIES, OR OTHER UNSATISFACTORY PERFORMANCE RESULTING IN ADDITIONAL PROCUREMENT OR ADMINISTRATIVE COSTS. UNDER ASPR 1-902, DOUBT AS TO PRODUCTIVE CAPACITY WHICH CANNOT BE RESOLVED AFFIRMATIVELY BY THE CONTRACTING OFFICER REQUIRES A DETERMINATION OF NONRESPONSIBILITY.

WE HAVE CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO DETERMINE THE RESPONSIBILITY OF A BIDDER (37 COMP. GEN. 430; 38 ID. 248; 39 ID. 468; 43 ID. 228), AND THAT SUCH DETERMINATION WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 39 COMP. GEN. 705; 43 ID. 228. WE FIND NO BASIS ON THE RECORD BEFORE US TO QUESTION THE CONTRACTING OFFICER'S DETERMINATION IN THIS CASE.