B-166485, APR. 23, 1969

B-166485, APR. 23, 1969

TO POLARAD ELECTRONIC INSTRUMENTS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO AUL INSTRUMENTS, INC., UNDER INVITATION FOR BIDS NO. F41608-69-B-1001 ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA (SAAMA), KELLY AIR FORCE BASE, TEXAS.

THE SUBJECT INVITATION WAS ISSUED ON FEBRUARY 11, 1969, INVITING BIDS FOR FURNISHING 51 SPECTRUM ANALYZERS IN ACCORDANCE WITH MIL-S 25982C/USAF). THE INVITATION CALLED FOR BIDS ON THE BASIS OF BID "A," FIRST ARTICLE APPROVAL REQUIRED, AND BID "B," FIRST ARTICLE APPROVAL NOT REQUIRED. THE BIDS WERE OPENED ON MARCH 13, 1969, DISCLOSING PRICES AS FOLLOWS:

BID "A" BID "B"

--------- --------- AUL INSTRUMENTS, INC. $4,420 EACH $4,290 EACH POLARAD 4,650 EACH SPEDCOR ELEC., INC. 6,648 EACH YOU STATE THAT AUL INSTRUMENTS, INC. (AUL), IS DELINQUENT ON ITS CURRENT CONTRACT ISSUED UNDER INVITATION FOR BIDS NO. F41608-68-B-0767 FOR THE SAME ITEM AND HAS NOT PRODUCED A SATISFACTORY FIRST ARTICLE AS REQUIRED. YOU ALSO STATE THAT AUL'S BID "B" IS NOT VALID BECAUSE AUL HAS NOT OBTAINED A FIRST ARTICLE APPROVAL. YOU SAY THAT AT THE VERY LEAST THE AWARD SHOULD BE DELAYED UNTIL AFTER THE DUE DATE FOR FIRST ARTICLE DELIVERY UNDER AUL'S CURRENT CONTRACT. YOU FURTHER STATE THAT IF AUL FAILS TO MEET THAT DELIVERY DATE, ITS CURRENT CONTRACT SHOULD BE TERMINATED FOR DEFAULT AND AUL SHOULD NOT RECEIVE THE AWARD UNDER THE INSTANT INVITATION.

IT IS ADMINISTRATIVELY REPORTED THAT THE DUE DATE FOR FIRST ARTICLE TEST REPORTS UNDER AUL'S CURRENT CONTRACT IS APRIL 20, 1969. ALSO, IT IS REPORTED THAT A PREAWARD SURVEY HAS BEEN COMPLETED ON AUL AND THAT A REPORT REGARDING THE RESPONSIBILITY OF AUL IS EXPECTED SHORTLY. IT IS FURTHER REPORTED THAT IF THE PREAWARD SURVEY IS SATISFACTORY, THE AWARD OF THE CONTRACT WILL BE MADE TO AUL.

IT IS CLEAR FROM THE INFORMATION FURNISHED THAT AUL IS THE LOW BIDDER UNDER BOTH BIDS "A" AND ,B.' HENCE, AUL IS ENTITLED TO RECEIVE AWARD OF A CONTRACT ON THE BASIS OF ITS LOW BID "A" WHICH REQUIRES FIRST ARTICLE APPROVAL UNLESS AUL IS DETERMINED TO BE A NONRESPONSIBLE BIDDER. WE HAVE HELD CONSISTENTLY THAT THE QUESTION OF THE QUALIFICATIONS OF A PROPOSED CONTRACTOR IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED AND, IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR THE DETERMINATION, WE ARE NOT REQUIRED TO OBJECT TO THE DETERMINATION MADE BY THE ADMINISTRATIVE AGENCY. 43 COMP. GEN. 228; 39 ID. 468. ALSO, WE HAVE HELD THAT THE FAILURE TO PERFORM SATISFACTORILY UNDER ONE PRIOR CONTRACT IS AN INSUFFICIENT BASIS FOR REJECTION OF A BID. 27 COMP. GEN. 621. ACCORDINGLY, SINCE AUL IS LOW BIDDER, WE SEE NO LEGAL OBJECTION TO AN AWARD OF A CONTRACT TO IT IF THE ADMINISTRATIVE AGENCY HAS A REASONABLE BASIS FOR DETERMINING AUL TO BE A RESPONSIBLE BIDDER. FURTHERMORE, WE SEE NO BASIS FOR DELAYING THE PROCUREMENT UNTIL AFTER DELIVERY OF THE FIRST ARTICLE REQUIRED UNDER AUL'S CURRENT CONTRACT.