B-166730, JUN. 10, 1969

B-166730, JUN. 10, 1969

TO DATA-CONTROL SYSTEMS INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF APRIL 21, 1969, PROTESTING THE AWARD OF A CONTRACT TO ELECTRONIC LABORATORIES, INC., UNDER INVITATION FOR BIDS NO. N00163-69-B-0607, ISSUED BY THE NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA.

THE INVITATION FOR BIDS FOR PROCUREMENT OF DISCRIMINATORS IN ACCORDANCE WITH NAVAL ORDNANCE DRAWING 2831139 WAS ISSUED ON FEBRUARY 19, 1969, AND WAS OPENED MARCH 24, 1969. UNDER THE INVITATION, LOT I INVOLVED A SINGLE- YEAR PROCUREMENT AND LOT II INVOLVED A MULTI-YEAR PROCUREMENT. AT THE TIME OF BID OPENING, YOUR BID AND THAT OF ELECTRONIC LABORATORIES WERE THE ONLY BIDS RECEIVED. YOUR COMPANY SUBMITTED A BID OF $224,129 FOR LOT I, AND ELECTRONIC LABORATORIES SUBMITTED A BID OF $197,844. AS TO LOT II, ELECTRONIC LABORATORIES SUBMITTED THE ONLY BID IN THE AMOUNT OF $305,148.

ON APRIL 2, 1969, THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY REPORT FROM THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE, HOUSTON, TEXAS, ON ELECTRONIC LABORATORIES. THE FORMAL PREAWARD SURVEY RECOMMENDING COMPLETE AWARD TO ELECTRONIC LABORATORIES WAS RECEIVED APRIL 17, 1969, AND THE CONTRACT REVIEW BOARD APPROVED AN AWARD TO ELECTRONIC LABORATORIES ON THAT DATE. ELECTRONIC LABORATORIES WAS DETERMINED TO BE A RESPONSIBLE PROSPECTIVE CONTRACTOR BY THE CONTRACTING OFFICER ON APRIL 18, 1969, IN ACCORDANCE WITH ASPR 1 904.1. SINCE ELECTRONIC LABORATORIES WAS THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER ON BOTH LOTS, IT WAS AWARDED THE CONTRACT.

YOU PROTEST THE AWARD TO ELECTRONIC LABORATORIES QUESTIONING ITS ABILITY TO PERFORM THE CONTRACT. YOUR TELEGRAM OF PROTEST STATES:

"-/1)ELI HAS NO RECORD OF BEING A BONA FIDE MANUFACTURER OF THE TYPE OF EQUIPMENT REQUESTED IN IFB NO. N00163-69-B-0607 AND WOULD, THEREFORE, NOT BE IN A POSITION TO MAKE "ON TIME" DELIVERIES,

"-/2) PURSUANT TO ITEM 1 ABOVE, THEIR TECHNICAL COMPETENCE IN ULTIMATELY DELIVERING EQUIPMENT TO THE "LETTER OR INTENT OF THE SPECIFICATION" IS TO SAY THE LEAST HIGHLY QUESTIONABLE.

"-/3) WE DO NOT BELIEVE ELI IS IN A POSITION (FINANCIALLY) TO PROVIDE THE TECHNICAL SUPPORT REQUIRED AT NAFI TO "BACK UP" ANY EQUIPMENT, WHICH THEY MIGHT ULTIMATELY DELIVER.-"

IT IS A WELL-ESTABLISHED RULE OF OUR OFFICE THAT THE DETERMINATION OF THE PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICES CONCERNED AND, IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS THEREFOR, THERE IS NO BASIS UPON WHICH WE MAY OBJECT. SEE 37 COMP. GEN. 430, 435; 39 ID. 705, 711; AND 46 ID. 371, 372. WITH PARTICULAR REFERENCE TO YOUR FIRST ALLEGATION THAT ELECTRONIC LABORATORIES WOULD NOT BE IN A POSITION TO MAKE ON TIME DELIVERIES, THE PREAWARD SURVEY TEAM FOUND -

"6. ABILITY TO MEET REQUIRED SCHEDULE: "THE BIDDER HAS DELIVERED SIMILAR- TYPE ITEMS WITHIN REQUIREMENTS OF CONTRACTS. ALSO, THE BIDDER'S LINE OF BALANCE CHART INDICATES THAT THE BIDDER CAN PRODUCE THE ITEMS TO THE REQUIREMENTS OF THIS BID. * * *"

REGARDING YOUR SECOND STATEMENT QUESTIONING ELECTRONIC LABORATORIES' TECHNICAL COMPETENCE, THE PREAWARD SURVEY STATES:

"1. TECHNICAL CAPABILITY: SATISFACTORY. "THE CORPORATION IS MANAGED BY JOHNNY HUMPHREYS (PRESIDENT). THE CORPORATION IS ADEQUATELY STAFFED WITH QUALIFIED MANAGEMENT PERSONNEL. THE MAJOR PRODUCTS OF THIS CORPORATION IS ELECTRONIC DEVICES. A LARGE PERCENTAGE OF THE CORPORATION'S GROSS BUSINESS IS WITH THE MEDICAL SERVICES. MANAGEMENT PERSONNEL ARE WELL VERSED IN GOVERNMENT REQUIREMENTS IN GENERAL AND, PARTICULARLY, WITH RESPECT TO THIS REQUIREMENT.'

FINALLY, CONCERNING YOUR BELIEF THAT ELECTRONIC LABORATORIES IS NOT IN A FINANCIAL POSITION TO FURNISH BACKUP EQUIPMENT, THE SURVEY TEAM FOUND --

"4. PURCHASING AND SUBCONTRACTING: SATISFACTORY. "THE BIDDER FURNISHED THE NAMES OF THE SOURCES FOR PURCHASE ITEMS, WITH VERIFIED QUOTATIONS WHICH ARE ADEQUATE TO ASSURE DELIVERY IN SUPPORT OF THE BID REQUIREMENTS. * * *" THE "DETERMINATION OF CONTRACTOR RESPONSIBILITY" EXECUTED BY THE CONTRACTING OFFICER AS A PREREQUISITE TO THE AWARD MADE TO ELECTRONIC LABORATORIES STATED: "IT IS HEREBY DETERMINED THAT THE PROPOSED CONTRACTOR IS RESPONSIBLE FOR PURPOSES OF PERFORMING THE PROPOSED CONTRACT AS HE (1) HAS ADEQUATE FINANCIAL RESOURCES, OR THE ABILITY TO OBTAIN SUCH AS REQUIRED; (2) IS ABLE TO COMPLY WITH THE REQUIRED DELIVERY OR PERFORMANCE SCHEDULE; (3) HAS A SATISFACTORY RECORD OF PERFORMANCE AND INTEGRITY; (4) HAS THE NECESSARY ORGANIZATION, EXPERIENCE, OPERATIONAL CONTROLS, TECHNICAL SKILLS, PRODUCTION AND TECHNICAL EQUIPMENT AND FACILITIES, OR THE ABILITY TO OBTAIN SUCH AS REQUIRED; AND (5) IS OTHERWISE QUALIFIED AND ELIGIBLE TO RECEIVE AN AWARD UNDER APPLICABLE LAWS AND REGULATIONS.'

IN VIEW THEREOF, NO LEGAL BASIS EXISTS TO OBJECT TO THE AWARD MADE. SEE 10 U.S.C. 2305 (C). ACCORDINGLY, AND SINCE THE DETERMINATION OF RESPONSIBILITY WAS BASED ON A PROPER PREAWARD SURVEY CONDUCTED UNDER ASPR 1-905.4, YOUR PROTEST IS DENIED.