B-168688, FEB. 25, 1970

B-168688, FEB. 25, 1970

BID PROTEST--BIDDER RESPONSIBILITY DECISION TO AFFILIATED METAL PRODUCTS CO. DENYING PROTEST AGAINST REJECTION OF LOW BID BY ARMY TANK-AUTOMOTIVE COMMAND FOR TUBE ASSEMBLIES. A LOW BIDDER WHO WAS DELINQUENT IN SEVEN OF ELEVEN CURRENT CONTRACTS AT TIME OF AWARD MAY NOT HAVE DETERMINATION OF NONRESPONSIBILITY REGARDED AS ARBITRARY.

TO AFFILIATED METAL PRODUCTS COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 12, 1969, WITH ENCLOSURES, PROTESTING THE REJECTION OF A BID SUBMITTED BY YOUR COMPANY IN RESPONSE TO ADVERTISED SOLICITATION NO. DAAE07-70-B-0640, ISSUED BY THE UNITED STATES ARMY TANK-AUTOMOTIVE COMMAND, PROCUREMENT AND PRODUCTION DIRECTORATE, WARREN, MICHIGAN. BIDS WERE REQUESTED FROM SMALL BUSINESS CONCERNS ONLY ON A REQUIREMENT FOR 3,544 TUBE ASSEMBLIES, MILITARY PART NO. 10889796, FEDERAL STOCK NO. 2910-860 5418.

THE SOLICITATION WAS ISSUED ON SEPTEMBER 24, 1969, AND FOUR BIDS WERE RECEIVED AS OF OCTOBER 15, 1969, THE BID OPENING DATE. THE LOWEST BID IN THE AMOUNT OF $9,497.92 WAS SUBMITTED BY YOUR COMPANY AND THE NEXT LOWEST BID IN THE AMOUNT OF $12,155.92 WAS SUBMITTED BY THE MOTOR TRUCK PARTS COMPANY, OAK PARK, MICHIGAN. PREAWARD SURVEYS WERE CONDUCTED ON THE TWO COMPANIES AND, AFTER RECEIPT OF THE PREAWARD SURVEY REPORTS, THE CONTRACTING OFFICER DETERMINED YOUR COMPANY TO BE NONRESPONSIBLE. HE ALSO DETERMINED THE MOTOR TRUCK PARTS COMPANY TO BE QUALIFIED AS A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THE PERFORMANCE OF THE PROPOSED CONTRACT. AWARD WAS MADE TO THE MOTOR TRUCK PARTS COMPANY ON DECEMBER 5, 1969.

YOU CONTEND THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY ON THE PART OF YOUR COMPANY, WHICH WAS BASED UPON AN UNSATISFACTORY RECORD OF PERFORMANCE UNDER SEVERAL OF YOUR CURRENT CONTRACTS WITH THE GOVERNMENT, WAS IMPROPER FOR THE STATED REASON THAT IT WAS KNOWN TO THE CONTRACTING AGENCY THAT YOU HAD JUST COMPLETED CONTRACT NO. DAAE07-69-B-5019 FOR THE SAME ITEM, FOR THE SAME QUANTITY AND HAVING THE SAME DELIVERY REQUIREMENTS.

THE CONTRACTING OFFICER'S REPORT ON YOUR PROTEST STATES THAT DELIVERIES UNDER CONTRACT NO. DAAE07-69-B-5019 WERE REQUIRED ON OR BEFORE DECEMBER 5, 1969, AND THAT THE SHIPMENTS UNDER THE CONTRACT DID NOT ARRIVE AT THE SPECIFIED DEPOTS UNTIL DECEMBER 17, 1969, OR 12 DAYS LATE. ALTHOUGH THE CONTRACT ITEMS REPORTEDLY WERE SHIPPED ON DECEMBER 5, 1969, IT IS APPARENT THAT YOU WERE DELINQUENT IN PERFORMING THE CONTRACT AS OF THAT DATE WHEN THE AWARD WAS MADE TO THE MOTOR TRUCK PARTS COMPANY. THE CONTRACTING OFFICER CONSIDERS THE DELAY IN DELIVERY UNDER CONTRACT NO. DAAE07-69-B- 5019 TO BE MINIMAL. HOWEVER, HIS REPORT STATES THAT, IN ANY EVENT, YOUR RECORD OF DELINQUENCY IN SEVEN OUT OF ELEVEN CURRENT CONTRACTS AS OF THE TIME OF MAKING THE AWARD TO THE MOTOR TRUCK PARTS COMPANY DEMONSTRATES LACK OF TENACITY AND PERSEVERANCE ON YOUR PART IN OVERALL CONTRACT PERFORMANCE.

SECTION 1-902, ARMED SERVICES PROCUREMENT REGULATION (ASPR), STATES IN PART THAT A RESPONSIBLE PROSPECTIVE CONTRACTOR IS ONE WHICH MEETS THE STANDARDS SET FORTH IN ASPR 1-903.1 AND 1-903.2. ONE OF THE MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS, AS PROVIDED FOR IN ASPR 1-903.1, IS THAT THE PROSPECTIVE CONTRACTOR HAVE A SATISFACTORY RECORD OF PERFORMANCE. ALSO, AS INDICATED IN ASPR 1 903.1(III) AND ASPR 1-705.4(V), WHEN IT IS PROPOSED TO REJECT A BID SUBMITTED BY A SMALL BUSINESS CONCERN ON THE GROUND OF NONRESPONSIBILITY, THE CASE IS NOT REQUIRED TO BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION WHETHER OR NOT TO ISSUE A SMALL BUSINESS CERTIFICATE OF COMPETENCY IN FAVOR OF THE PARTICULAR BIDDER WHERE, AS HERE, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY IS BASED UPON THE BIDDER'S UNSATISFACTORY RECORD OF PERFORMANCE AND THE CONTRACTING OFFICER HAS FOUND THAT THE UNSATISFACTORY RECORD OF PERFORMANCE WAS DUE TO A FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB.

WE HAVE CONSISTENTLY HELD THAT CONTRACTING AGENCIES OF THE GOVERNMENT HAVE THE PRIMARY RESPONSIBILITY FOR DETERMINING WHETHER A PROSPECTIVE CONTRACTOR IS RESPONSIBLE AND THAT THE ADMINISTRATIVE DETERMINATION SHOULD BE ACCORDED FINALITY IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR. SINCE THE DETERMINATION OF NONRESPONSIBILITY IN THIS CASE APPEARS REASONABLE IN VIEW OF YOUR APPARENTLY UNSATISFACTORY PERFORMANCE RECORD CONCERNING SEVERAL OF YOUR THEN CURRENT CONTRACTS WITH THE GOVERNMENT, WE FIND NO BASIS FOR CONSIDERING THAT THE DETERMINATION OF NONRESPONSIBILITY WAS ARBITRARY.