B-166144, MAR. 20, 1969

B-166144, MAR. 20, 1969

TO CHEMICAL COMPOUNDING CORPORATION:

WE HAVE CONSIDERED YOUR PROTEST OF DECEMBER 13, 1968, AS SUPPLEMENTED, AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) DSA-400-69-B-2134, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, DEFENSE SUPPLY AGENCY.

THE SUBJECT INVITATION DATED NOVEMBER 14, 1968, SOLICITED BIDS FOR 1,499,998 POUCHES OF FOOD DISINFECTANT IN ACCORDANCE WITH SPECIFICATIONS AS STATED IN THE IFB. THE ADVERTISED SCHEDULE REQUIRED DELIVERY OF 500,000 POUCHES BY JUNE 30, 1969, 500,000 BY JULY 30, 1969,AND THE REMAINING 499,998 POUCHES BY AUGUST 31, 1969. THE DELIVERY SCHEDULE, HOWEVER, WAS PREDICATED ON AWARD OF A CONTRACT BY JANUARY 6, 1969, AND THE INVITATION PROVIDED THAT THE DELIVERY SCHEDULE WOULD BE EXTENDED BY THE NUMBER OF CALENDAR DAYS ELAPSING BETWEEN JANUARY 6 AND THE DATE ON WHICH AWARD WAS ACTUALLY MADE. PROVISION WAS ALSO MADE IN SECTION 10 (C) OF THE INVITATION INSTRUCTIONS AND CONDITIONS FOR OFFERS OF LESS THAN THE TOTAL QUANTITIES CALLED FOR.

FIVE BIDS WERE RECEIVED AND OPENED ON DECEMBER 12, 1968, AND IT APPEARED THAT THE BID OF DOUGLAS CHEMICAL DIVISION OF DEICO INDUSTRIES, INC. (DOUGLAS) WAS LOW FOR THE TOTAL INVITATION QUANTITY AND THE BID OF CHEMICAL COMPOUNDING ON 1,339,000 POUCHES WAS THE SECOND LOWEST BID RECEIVED. IN ADDITION TO THE BASIC INVITATION QUANTITIES, THE INVITATION CONTAINED A LABOR SURPLUS SET-ASIDE PROVISION COVERING A LIKE QUANTITY OF DISINFECTANT POUCHES. WE HAVE BEEN INFORMALLY ADVISED BY THE DEFENSE SUPPLY AGENCY (DSA) THAT AWARD WAS MADE TO DOUGLAS ON THE UNRESTRICTED PORTION OF THE INVITATION ON FEBRUARY 11, 1969, AND THAT AWARD WAS MADE TO CHEMICAL COMPOUNDING ON THE RESTRICTED PORTION ON FEBRUARY 25, 1969.

THE SUBSTANCE OF YOUR PROTEST IS THAT NO BIDDER HAS OR WILL HAVE ACCESS TO SUFFICIENT QUANTITIES OF TRICHLOROMELAMINE (TCM), A NECESSARY INGREDIENT FOR THE MANUFACTURE OF THE FOOD DISINFECTANT, TO MEET THE TOTAL INVITATION QUANTITY WITHIN THE REQUIRED DELIVERY DATES AND THAT ONLY CHEMICAL COMPOUNDING, WHICH HAS A SUPPLY ON HAND, IS CAPABLE OF SUPPLYING EVEN THE REDUCED QUANTITY ON WHICH IT BID. IN THIS REGARD, IT IS YOUR CONTENTION THAT THE ONLY PRESENT MANUFACTURER OF TCM IS THE HARCHEM DIVISION OF WALLACE AND TIERNAN AND THAT SUCH FIRM CANNOT FURNISH ADEQUATE QUANTITIES OF TCM FOR THE PRESENT PROCUREMENT BECAUSE OF PRIOR COMMITMENTS, THEREBY PRECLUDING TIMELY DELIVERY BY BIDDERS WHO DO NOT ALREADY HAVE A STOCK OF TCM ON HAND. YOU CONCLUDE THAT SINCE YOUR FIRM WAS THE ONLY ONE OF THE FIVE BIDDERS TO ACTUALLY HAVE A SUPPLY OF TCM ON HAND, YOUR BID WAS THE ONLY ONE WHICH WAS ACTUALLY "RESPONSIVE" TO THE INVITATION.

YOU ALSO COMPLAIN THAT DELAY BEYOND THE CONTEMPLATED AWARD DATE OF JANUARY 6, 1969, HAS THE EFFECT OF GIVING BIDDERS WITHOUT ADEQUATE SUPPLIES OF TCM ON HAND TO MEET THE DELIVERY SCHEDULE PREDICATED ON A JANUARY 6 AWARD AN OPPORTUNITY TO ACQUIRE ADEQUATE SUPPLIES FROM WALLACE AND TIERNAN IN TIME TO MEET A LATER DELIVERY SCHEDULE. IN OTHER WORDS, IT IS YOUR CONTENTION THAT SUCH A DELAY WILL RESULT IN NONRESPONSIBLE BIDDERS BECOMING RESPONSIBLE, AND THEREFORE IS ,VIOLATIVE OF THE SPIRIT AND INTENT OF THE FULL AND FREE COMPETITIVE STATUTES CONCERNING ADVERTISED PROCUREMENTS.' ADDITIONALLY, YOU CONTEND THAT THE URGENT NEED FOR THE SUBJECT DISINFECTANT POUCHES REQUIRED IMMEDIATE AWARD TO YOUR FIRM AS THE ONLY BIDDER WITH CURRENT PRODUCTION CAPABILITY.

THE QUESTION OF A BIDDER'S ABILITY TO PERFORM A PROPOSED CONTRACT, AS OPPOSED TO HIS COMPLIANCE WITH THE MATERIAL TERMS AND CONDITIONS OF AN INVITATION FOR BIDS, IS A QUESTION OF RESPONSIBILITY RATHER THAN OF RESPONSIVENESS. SINCE THERE IS NO INDICATION THAT DOUGLAS DID NOT AGREE TO ALL THE MATERIAL TERMS AND CONDITIONS OF THE SUBJECT INVITATION IN ITS BID, THE QUESTION FOR RESOLUTION IS WHETHER OR NOT THE DETERMINATION BY THE CONTRACTING OFFICER THAT DOUGLAS WAS CAPABLE OF DELIVERING IN ACCORDANCE WITH THE REQUIRED DELIVERY SCHEDULE WAS CORRECT. IN THIS REAGRD, THE DEFENSE SUPPLY AGENCY HAS ADVISED US THAT A PREAWARD SURVEY REVEALED THAT DOUGLAS INTENDED TO ACQUIRE THE NECESSARY QUANTITIES OF TCM FROM THE NEASE CHEMICAL COMPANY RATHER THAN WALLACE AND TIERNAN. SINCE NEASE HAD NOT PREVIOUSLY PRODUCED TCM, A SEPARATE PREAWARD SURVEY WAS CONDUCTED OF ITS PRODUCTION CAPABILITY RESULTING IN A DETERMINATION ON JANUARY 21, 1969, THAT NEASE HAS "THE CAPABILITY TO DELIVER A MINIMUM QUANTITY OF 12,000 LBS. OF TRICHLOROMELAMINE (TCM) PER MONTH WITH AN INITIAL DELIVERY SCHEDULED TO BE MADE ON OR ABOUT APRIL 20, 1969.' SINCE THIS QUANTITY OF TCM WAS DETERMINED TO BE SUFFICIENT TO ENABLE DOUGLAS TO PRODUCE THE REQUIRED QUANTITIES OF FOOD DISINFECTANT POUCHES IN ACCORDANCE WITH DELIVERY DATES PREDICATED ON AWARD IN FEBRUARY 1969, AWARD ON THE UNRESTRICTED PORTION OF THE IFB WAS RECOMMENDED TO DOUGLAS WITH NEASE AS ITS SUPPLIER OF TCM.

THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE PROCURING AGENCY AND WILL BE QUESTIONED BY OUR OFFICE ONLY UPON A SHOWING THAT THE AGENCY'S DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE. SEE B-163607 (1), MARCH 11, 1968. ON THE BASIS OF THE PRESENT RECORD, WE MUST CONCLUDE THAT THE AGENCY'S DETERMINATION THAT DOUGLAS COULD PRODUCE IN ACCORDANCE WITH THE INVITATION AND WAS THEREFORE A RESPONSIBLE BIDDER WAS BASED ON SUBSTANTIAL EVIDENCE, I.E., NEASE'S CAPABILITY TO PRODUCE THE NECESSARY QUANTITIES OF TCM.

CONCERNING THE DELAY OF THE GOVERNMENT IN MAKING AN AWARD IN THE FACE OF A STATED URGENCY OCCASIONED BY THE PREAWARD SURVEY PERFORMED AS TO NEASE CHEMICAL COMPANY'S ABILITY TO FURNISH ADEQUATE QUANTITIES OF TCM, WE MUST CONCLUDE THAT THE DELAY WAS REASONABLE AND NECESSARY, AND THEREFORE IS NOT SUBJECT TO QUESTION BY OUR OFFICE. ALSO, SINCE THE LOW BIDDER WAS PLANNING TO USE A TCM SOURCE OTHER THAN WALLACE AND TIERNAN, WE CANNOT AGREE THAT THE DELAY IN MAKING AWARD, WITH THE ATTENDANT EXTENSION OF THE ORIGINALLY CONTEMPLATED DELIVERY SCHEDULE, HAD THE EFFECT OF GIVING AN INITIALLY NONRESPONSIBLE BIDDER A SECOND CHANCE TO BECOME RESPONSIBLE. FURTHER, THE CRITICAL ELEMENT IN RESPONSIBILITY DETERMINATIONS IS THE BIDDER'S ABILITY TO PERFORM AT THE TIME AWARD IS ACTUALLY MADE RATHER THAN HIS ABILITY TO PERFORM AT THE TIME AWARD WAS ORIGINALLY CONTEMPLATED. ACCORDINGLY, THE FACT THAT A BIDDER MIGHT HAVE BEEN NONRESPONSIBLE AND THEREFORE INELIGIBLE TO RECEIVE AN AWARD MADE AT AN EARLIER DATE HAS NO BEARING ON HIS ABILITY TO PERFORM AT THE TIME AWARD ACTUALLY IS MADE AT A LATER DATE.

IN ACCORDANCE WITH THE ABOVE CONSIDERATIONS, YOUR PROTEST MUST BE DENIED.