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BIDDERS WERE ADVISED THAT BIDS OFFERING LESS THAN 20 DAYS FOR ACCEPTANCE WOULD BE REJECTED AS NONRESPONSIVE. PAGES 2 AND 3 OF THE INVITATION PROVIDED IN PART: "NOTE: NO GOVERNMENT OWNED TOOLING WILL BE MADE AVAILABLE FOR USE ON ANY CONTRACT AWARDED HEREUNDER. ANY AND ALL TOOLING NECESSARY IS TO BE FIGURED SEPARATELY AND WILL BE CONSIDERED AS A PART OF THE OVERALL COST TO THE GOVERNMENT IN AWARD OF CONTRACT. TOOLING WILL BECOME THE PROPERTY OF THE U.S. GOVERNMENT AND IS TO BE SHIPPED UPON COMPLETION OF THE CONTRACT AWARDED HEREUNDER. "A LIST OF ALL TOOLING FOR WHICH THE GOVERNMENT IS TO PAY WILL BE SUBMITTED WITH THE BID. "THE SUCCESSFUL BIDDER WILL FURNISH LAYOUT DRAWINGS OF TOOLING WHICH WILL BECOME THE PROPERTY OF THE GOVERNMENT.

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B-145487, MAY 19, 1961

TO ACTION MANUFACTURING COMPANY:

BY TELEGRAM DATED MARCH 31, 1961, AND LETTERS OF APRIL 12 AND 21, 1961, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO THE WESTCLOX DIVISION, GENERAL TIME CORPORATION, UNDER INVITATION FOR BIDS NO. 164 63-61, ISSUED BY THE NAVAL AMMUNITION DEPOT, CRANE, INDIANA, ON JANUARY 23, 1961.

THE INVITATION, AS AMENDED, REQUESTED BIDS UNDER ITEM 1 FOR 57,500 MARK 188 NOSE FUZES FOR THE 5 INCH ZUNI ROCKET, AND UNDER ITEM 2 FOR 57,200 MARK 191 BASE FUZES FOR THE 5 INCH ZUNI ROCKET. BIDDERS WERE ADVISED THAT BIDS OFFERING LESS THAN 20 DAYS FOR ACCEPTANCE WOULD BE REJECTED AS NONRESPONSIVE. PAGES 2 AND 3 OF THE INVITATION PROVIDED IN PART:

"NOTE: NO GOVERNMENT OWNED TOOLING WILL BE MADE AVAILABLE FOR USE ON ANY CONTRACT AWARDED HEREUNDER. ANY AND ALL TOOLING NECESSARY IS TO BE FIGURED SEPARATELY AND WILL BE CONSIDERED AS A PART OF THE OVERALL COST TO THE GOVERNMENT IN AWARD OF CONTRACT. TOOLING WILL BECOME THE PROPERTY OF THE U.S. GOVERNMENT AND IS TO BE SHIPPED UPON COMPLETION OF THE CONTRACT AWARDED HEREUNDER, TO THE RECEIVING OFFICER, U.S. NAVAL AMMUNITION DEPOT, CRANE, INDIANA.

"AT ANY DATE PRIOR TO FINAL ACTION ON THE PART OF THE CONTRACTOR TO PROCURE TOOLING REQUIRED FOR PERFORMANCE UNDER THE CONTRACT, THE GOVERNMENT RESERVES THE RIGHT TO FURNISH SERVICEABLE GOVERNMENT OWNED TOOLING AND REDUCE THE CONTRACTOR'S ORIGINAL TOOLING COST BY THE COST OF EACH ITEM FURNISHED.

"A LIST OF ALL TOOLING FOR WHICH THE GOVERNMENT IS TO PAY WILL BE SUBMITTED WITH THE BID.

"THE SUCCESSFUL BIDDER WILL FURNISH LAYOUT DRAWINGS OF TOOLING WHICH WILL BECOME THE PROPERTY OF THE GOVERNMENT.

"SEE SPECIAL TOOLING CLAUSE WHICH IS MADE A PART OF THIS INVITATION TO BID AND ATTACHED HERETO COVERING THE FURNISHING OF TOOLING.'

THE INVITATION FURTHER PROVIDED THAT PREPRODUCTION SAMPLES OF THE FUZES WERE TO BE SUBMITTED ON OR BEFORE APRIL 15, 1961.

BIDS WERE OPENED AS SCHEDULED ON FEBRUARY 21, 1961, AND IT APPEARED THAT YOUR FIRM--- A SMALL BUSINESS CONCERN--- SUBMITTED THE LOWEST BID WITH A 30-DAY ACCEPTANCE PERIOD IN THE AGGREGATE AMOUNT OF $1,930,820 ON AN "ALL OR NONE" BASIS. THIS AGGREGATE TOTAL INCLUDED AN AMOUNT OF $167,850 AS THE COST OF TOOLING ON BOTH ITEMS. A LIST OF TOOLING APPLICABLE TO EACH ITEM WAS ATTACHED TO YOUR BID. THE WESTCLOX DIVISION SUBMITTED THE NEXT LOWEST BID WITH A 60-DAY ACCEPTANCE PERIOD IN THE AGGREGATE AMOUNT OF $2,040,011 WITHOUT ANY REFERENCE TO TOOLING COSTS.

IN VIEW OF THE DISPARITY BETWEEN YOUR UNIT PRICES FOR ITEMS 1 AND 2 AND THOSE SUBMITTED BY OTHER BIDDERS, VERIFICATION OF YOUR BID PRICES WAS INFORMALLY REQUESTED. ALSO, YOUR FIRM WAS REQUESTED TO VERIFY THE PRICES QUOTED FOR TOOLING COSTS ON ITEMS 1 AND 2. APPARENTLY, THE CONTRACTING OFFICER SUSPECTED THAT AN ERROR HAD BEEN MADE IN YOUR UNIT PRICE QUOTATIONS SINCE YOU HAD BID A UNIT PRICE OF $23.10 FOR ITEM 1 AND $7.60 FOR ITEM 2, WHEREAS ITEM 2 OBVIOUSLY WAS THE MORE EXPENSIVE OF THE TWO ITEMS. ON FEBRUARY 25, 1961, YOU WERE FORMALLY REQUESTED TO VERIFY YOUR BID, AND ON FEBRUARY 27 YOU ALLEGED A CLERICAL ERROR IN YOUR BID IN THAT YOU HAD INVERTED THE BID PRICES FOR ITEMS 1 AND 2 AND THAT YOU HAD INCLUDED THE COST OF SPECIAL TOOLING COMMON TO BOTH ITEMS IN THE TOOLING COST OF ITEM 1. SUBSTANTIATING EVIDENCE OF HOW THE ERROR OCCURRED AND OF YOUR INTENDED BID PRICE WAS REQUESTED OF YOU BY LETTER OF MARCH 2, 1961. BY LETTER OF MARCH 3, 1961, YOU FURNISHED A DETAILED EXPLANATION OF THE CLERICAL ERROR AND VERIFIED THAT YOUR INTENDED BID PRICES WERE MISTAKENLY INVERTED, THAT IS, THE UNIT PRICE FOR ITEM 1 SHOULD HAVE BEEN ENTERED AS THE UNIT PRICE FOR ITEM 2 AND VICE VERSA.

PURSUANT TO REGULATION, THE ENTIRE FILE RELATING TO THE ALLEGATION OF ERROR IN BID WAS REFERRED ON MARCH 9, 1961, TO THE BUREAU OF SUPPLIES AND ACCOUNTS FOR DECISION. CONSIDERING THAT SOME TIME WOULD BE REQUIRED TO REACH A DECISION IN THE MATTER, A PREAWARD SURVEY WAS REQUESTED ON MARCH 9, ON THE FACILITIES AND CAPABILITIES OF THE THREE LOW BIDDERS UNDER THE INVITATION. ON OR ABOUT MARCH 22, 1961, THE BUREAU ADVISED THE CONTRACTING AGENCY THAT IF YOUR FIRM WAS FOUND TO BE A RESPONSIBLE BIDDER, CORRECTION OF YOUR BID AND ITS CONSIDERATION ON AN "ALL OR NONE" BASIS WOULD BE PERMITTED.

BY PREAWARD SURVEY REPORT DATED MARCH 21, 1961, YOUR FIRM WAS FOUND TO BE A RELIABLE SUPPLIER ABLE TO PERFORM SUBSTANTIALLY IN COMPLIANCE WITH THE TERMS, CONDITIONS AND REQUIREMENTS OF THE INVITATION. HOWEVER, ON MARCH 27, 1961, AT A MEETING OF THE PRE-AWARD SURVEY BOARD, THE CONTRACTING OFFICER AND TECHNICAL PERSONNEL TOOK EXCEPTION TO THE FAVORABLE PREAWARD SURVEY REPORT ON YOUR FIRM. IT WAS THE OPINION OF THOSE OFFICIALS THAT CONSIDERABLY MORE TIME WOULD BE REQUIRED BY YOUR FIRM TO MEET THE DELIVERY REQUIREMENTS THAN EVIDENCED IN THE REPORT OF SURVEY. THEREFORE, THE NAVY INSPECTORS WERE REQUESTED ON MARCH 28, 1961, TO RE-SURVEY YOUR FIRM TO ASCERTAIN WHETHER THEIR FINDINGS WERE CORRECT AS TO YOUR ABILITY TO MEET THE REQUIRED DELIVERY DATES OF THE INVITATION. ON MARCH 29, 1961, THE CONTRACTING OFFICER WAS INFORMED IN A TELEPHONE CONVERSATION WITH THE COGNIZANT NAVY INSPECTOR THAT YOUR FIRM WOULD REQUIRE 30 TO 40 DAYS SUBSEQUENT TO AWARD OF CONTRACT TO PRODUCE PREPRODUCTION TOOLING AND THAT, THEREFORE, THE APRIL 15, 1961, DATE FOR SUBMISSION OF SAMPLES COULD NOT BE MET. AN EXAMINATION OF THE SECOND PREAWARD SURVEY REPORT CONFIRMS THAT CONVERSATION. IN THAT CONNECTION, THE NAVY INSPECTOR, CHICAGO, ADVISED THE CONTRACTING OFFICER THAT WESTCLOX COULD MEET THE REQUIRED DELIVERIES WITH CONTRACTOR-OWNED SPECIAL TOOLING. IN THE MEANWHILE, YOU HAD ON MARCH 21, 1961, EXTENDED YOUR BID ACCEPTANCE DATE TO APRIL 5, 1961. WHILE YOU DID NOT REQUEST AN EXTENSION OF THE INVITATION DELIVERY DATES, THE PROCUREMENT AGENCY ON MARCH 31, 1961, ADVISED MR. STERN OF YOUR FIRM THAT THE DELIVERY REQUIREMENT FOR PREPRODUCTION SAMPLE SUBMISSION WOULD BE EXTENDED DAY FOR DAY BY THE NUMBER OF DAYS THE GOVERNMENT DELAYED IN MAKING AN AWARD AFTER EXPIRATION OF YOUR ORIGINAL BID ACCEPTANCE PERIOD.

THE CONTRACT REVIEW BOARD MET ON APRIL 4, 1961, AND BASED ON THE INFORMATION FURNISHED BY THE NAVY INSPECTORS, IT WAS DETERMINED THAT SINCE YOUR FIRM WOULD REQUIRE 30 TO 40 DAYS IN WHICH TO DEVELOP SPECIAL TOOLING, THE CONTRACT SHOULD BE AWARDED TO WESTCLOX AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. ON THE SAME DAY, THE SMALL BUSINESS ADMINISTRATION WAS ADVISED BY THE CONTRACTING OFFICER THAT AWARD MUST BE MADE WITHOUT DELAY AND WITHOUT AFFORDING THAT ADMINISTRATION AN OPPORTUNITY TO CONSIDER WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED TO YOUR FIRM. THIS ACTION IS SUPPORTED BY A CERTIFICATE, EXECUTED PURSUANT TO SECTION 1-705.6 (B) (A), ASPR, THAT THE NATIONAL DEFENSE URGENCY OF THE PROCUREMENT COULD NOT BE DELAYED PENDING CONSIDERATION OF YOUR CAPABILITIES BY THE SMALL BUSINESS ADMINISTRATION. ACCORDINGLY, CONTRACT NO. N164-9308 WAS AWARDED TO WESTCLOX ON APRIL 4 IN THE TOTAL AMOUNT OF $2,040,011.

YOU CONTEND THAT AWARD SHOULD HAVE BEEN MADE TO YOUR FIRM AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER IN VIEW OF THE FOLLOWING ALLEGATIONS:

1. THAT NO AWARD SHOULD HAVE BEEN MADE UNTIL OUR OFFICE HAD RENDERED A DECISION ON THE PROTEST, AS CONTEMPLATED BY SECTION 2 407.9, ASPR;

2. THAT THE BID OF WESTCLOX WAS NONRESPONSIVE TO THE REQUIREMENTS OF THE INVITATION;

3. THAT THE CONTRACTING OFFICER DELAYED SOME 42 DAYS IN RESOLVING YOUR CLAIMED ERROR IN BID TO THE DETRIMENT OF YOUR FIRM WHEN VIEWED IN THE LIGHT OF THE APRIL 15, 1961, DATE SCHEDULED FOR DELIVERY OF THE PREPRODUCTION SAMPLES;

4. THAT WESTCLOX WAS GIVEN AN ADDITIONAL 12 DAYS TO APRIL 27, 1961, TO DELIVER THE PREPRODUCTION SAMPLE, WHICH CONCESSION, IF OFFERED TO YOUR FIRM, WOULD HAVE PERMITTED TIMELY DELIVERY OF THE SAMPLES HAD THE CONTRACT BEEN AWARDED TO YOUR FIRM;

5. THAT THE INVITATION WAS DEFECTIVE IN THAT IT DID NOT STIPULATE A TARGET AWARD DATE OR PROVIDE THAT IF AN AWARD WERE NOT MADE BY THAT DATE, THE DELIVERY DATES WOULD BE EXTENDED BEYOND SUCH DATE ON A DAY BY DAY BASIS AS CONTEMPLATED BY SECTION 1-305.3 (B), ASPR; AND

6. THAT THE JURISDICTION OF THE SMALL BUSINESS ADMINISTRATION TO DETERMINE WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED WAS CIRCUMVENTED BECAUSE OF THE CIRCUMSTANCES OF THE DELAYS AND THE PURPORTED URGENCY OF THE PROCUREMENT.

IN CONSIDERING THESE ARGUMENTS BELOW, WE MUST CONCLUDE THAT NO LEGAL BASIS EXISTS FOR QUESTIONING THE AWARD MADE TO WESTCLOX.

WE DO NOT AGREE THAT SECTION 2-407.9, ASPR, PRECLUDED THE CONTRACTING OFFICER FROM MAKING A VALID AWARD TO WESTCLOX PRIOR TO RESOLUTION OF YOUR PROTEST BY OUR OFFICE. THAT REGULATION SPECIFICALLY AUTHORIZES THE MAKING OF AWARD PRIOR TO RESOLUTION OF A PROTEST AGAINST THE AWARD WHERE, AS HERE, THE CONTRACTING OFFICER HAS DETERMINED THE ITEMS TO BE PROCURED ARE URGENTLY NEEDED. WE AGREE THAT THIS IS NECESSARY PROCEDURE PROVIDED, OF COURSE, THAT IN EACH SUCH CASE THE CONTRACTING OFFICER FIRST DETERMINES THAT THE AWARD TO BE MADE IS LEGALLY PROPER.

IT IS CONTENDED THAT THE BID OF WESTCLOX WAS LEGALLY DEFECTIVE SINCE ITS BID WAS NOT ACCOMPANIED BY A LIST OF TOOLING PROPOSED TO BE USED IN PERFORMING THE RESULTING CONTRACT. THE INVITATION DID NOT REQUIRE THAT A BIDDER WHO DID NOT CONTEMPLATE EITHER ACQUIRING OR USING TOOLING AS AN ITEM OF BID EXPENSE TO SUBMIT A TOOLING LIST WITH ITS BID. THOSE BIDDERS WHO DID NOT DESIRE TO SELL THEIR TOOLING TO THE GOVERNMENT AS A PART OF THE CONTRACT CONSIDERATION WERE NOT REQUIRED BY THE INVITATION TO FURNISH A LIST OF ALL TOOLING "FOR WHICH THE GOVERNMENT IS TO PAY.' IN OTHER WORDS, THE COST OF WESTCLOX TOOLING WAS NOT TO BE CONSIDERED IN THE EVALUATION OF ITS BID SINCE IT WAS NOT A SEPARATE ITEM OF COST TO THE GOVERNMENT. IN FACT, PURSUANT TO THE EXPRESS TERMS OF THE INVITATION, QUOTED ABOVE, THE CONTRACT PRICE OF THE WESTCLOX CONTRACT WAS REDUCED BY $36,425.27 IN CONSIDERATION OF GOVERNMENT-OWNED TOOLING BEING FURNISHED FOR USE IN PERFORMING THE CONTRACT.

THE RECORD ESTABLISHES THAT CONSIDERATION OF YOUR BID WAS DELAYED UNTIL MARCH 22, 1961, WHEN IT WAS DETERMINED BY THE BUREAU OF SUPPLIES AND ACCOUNTS THAT THE EVIDENCE WOULD SUPPORT CORRECTION OF YOUR BID TO AN "ALL OR NONE" BASIS WITH THE UNIT PRICES FOR ITEMS 1 AND 2 PROPERLY SHOWN AS INTENDED BY YOU. HOWEVER, NO PART OF SUCH DELAY IS CHARGEABLE TO THE GOVERNMENT SINCE IT AROSE SOLELY FROM YOUR OWN NEGLIGENCE IN PREPARING YOUR BID. THE CONTRACTING OFFICER HAD NO AUTHORITY TO CORRECT YOUR BID, BUT RATHER, HE WAS REQUIRED BY SECTION 2-406.3 OF THE NAVY PROCUREMENT DIRECTIVES--- SEE, ALSO, SECTION 2 406.3 (B) (2), ASPR--- TO REFER THE ALLEGATION OF ERROR TO THE BUREAU OF SUPPLIES AND ACCOUNTS FOR INSTRUCTIONS AS TO WHETHER CORRECTION SHOULD BE PERMITTED. TO ACCOMPLISH THIS DETERMINATION, IT WAS YOUR RESPONSIBILITY TO SUBSTANTIATE THE ERROR BY CLEAR AND CONVINCING EVIDENCE. WE CANNOT CONCLUDE THAT THE TIME REQUIRED TO MAKE SUCH DETERMINATION WAS UNREASONABLE UNDER THE CIRCUMSTANCES. HENCE, AT LEAST TO THE EXTENT THAT CONSIDERATION OF YOUR BID WAS DELAYED UNTIL THE CONTRACTING OFFICER WAS INSTRUCTED TO CORRECT YOUR BID, IT MUST BE HELD THAT SUCH DELAY WAS CHARGEABLE AGAINST YOUR FIRM. MEANWHILE THE PROCUREMENT AGENCY'S REQUIREMENT FOR SUBMISSION OF PREPRODUCTION SAMPLES REMAINED UNCHANGED EXCEPT TO THE EXTENT THAT ADDITIONAL TIME WOULD HAVE BEEN ALLOWED YOU BEYOND THE EXPIRATION OF YOUR BID ACCEPTANCE PERIOD HAD YOU BEEN AWARDED A CONTRACT THEREAFTER. HOWEVER, IT MAY BE POINTED OUT THAT ANY DETRIMENT OCCASIONED YOUR FIRM BECAUSE OF THE ERROR IN BID IMPOSED NO OBLIGATION OF THE PROCUREMENT AGENCY TO WAIVE THE PREPRODUCTION SAMPLE REQUIREMENT OR TO EXTEND THE TIME FOR SUBMISSION BEYOND THE DATE YOU WOULD HAVE BEEN REQUIRED TO DELIVER SUCH SAMPLES.

ALSO, IN THAT CONNECTION, IT SHOULD BE NOTED THAT THE PROCUREMENT AGENCY, WITH THE VIEW OF EXPEDITING AWARD, DIRECTED THAT A PREAWARD SURVEY BE MADE OF YOUR FIRM PRIOR TO RESOLUTION OF YOUR ALLEGATION OF ERROR IN BID. THAT AGENCY NORMALLY COULD HAVE WAITED UNTIL CORRECTION OF YOUR BID COULD HAVE BEEN MADE BEFORE REQUESTING A PREAWARD SURVEY.

WITH RESPECT TO THE PREAWARD SURVEYS, WE FIND THAT A REASONABLE PERIOD OF TIME WAS CONSUMED IN REPORTING YOUR CAPABILITIES TO PERFORM. ALSO, IT IS CLEAR THAT THE FIRST PREAWARD SURVEY REPORT OF MARCH 21, 1961, DID NOT CONSIDER THE TIME WITHIN WHICH PREPRODUCTION SAMPLES WERE REQUIRED TO BE DELIVERED. SINCE COMPLIANCE WITH SUCH DELIVERY TIME WAS AN IMPORTANT FACTOR IN DETERMINING THE LOWEST RESPONSIBLE BIDDER, NO DETERMINATION PROPERLY COULD HAVE BEEN MADE ON THE BASIS OF THAT SURVEY REPORT. THE CONTRACTING OFFICER PROMPTLY REQUESTED THE NAVY INSPECTOR TO RE-SURVEY YOUR CAPABILITIES TO MEET THE DESIRED PREPRODUCTION SUBMISSION REQUIREMENT. THE RE-SURVEY RESULTS AS COMMUNICATED TO THE CONTRACTING OFFICER ON MARCH 29, 1961, WERE UNFAVORABLE TO YOUR FIRM INSOFAR AS PREPRODUCTION SAMPLE SUBMISSIONS WERE CONCERNED. IN EFFECT, THAT RE-SURVEY REPORT REQUIRED THE CONCLUSION THAT, SINCE YOUR BID ACCEPTANCE PERIOD EXPIRED ON MARCH 23, 1961, AN EXTENSION OF 12 DAYS FROM APRIL 15, 1961, WAS TO BE CONSTRUCTIVELY GIVEN TO YOUR FIRM IN WHICH TO MEET THE PREPRODUCTION DELIVERY, OR APRIL 27, 1961. HOWEVER, BASED ON THE SECOND PREAWARD SURVEY, IT IS REPORTED THAT YOUR FIRM WOULD REQUIRE FROM 30 TO 40 DAYS TO DEVELOP SPECIAL TOOLING NECESSARY TO BEGIN PRODUCTION. HENCE, THE EARLIEST DATE YOUR FIRM COULD DELIVER THE PREPRODUCTION SAMPLES WOULD HAVE BEEN MAY 5, OR POSSIBLY MAY 15, 1961, ALLOWING NO MANUFACTURING TIME FOR THE SAMPLES. FURTHERMORE, THE POSSIBILITY OF YOUR FIRM MEETING THE REQUIRED JULY 31, 1961, DATE FOR INITIAL DELIVERY OF THE PRODUCTION ITEMS WAS DETERMINED TO BE EXTREMELY REMOTE BASED ON 40 DAYS FOR TOOLING DEVELOPMENT AND 60 DAYS FOR GOVERNMENT TESTING OF PREPRODUCTION SAMPLES AND PRODUCTION LOT SAMPLES, OR 100 DAYS FROM THE CONTEMPLATED DATE OF AWARD. WITH ONLY ABOUT 118 DAYS AVAILABLE FROM THE CONTEMPLATED DATE OF AWARD FOR THE REQUIRED DELIVERY OF THE INITIAL PRODUCTION LOTS, YOUR FIRM WOULD HAVE HAD ONLY 18 CALENDAR DAYS TO PERFORM ALL THE OPERATIONS NECESSARY TO PRODUCE, TEST AND SHIP THE FINISHED ITEMS.

WHILE SECTION 1-305.3 (B), ASPR, PROVIDES THAT WHERE THE DELIVERY SCHEDULES ARE IN TERMS OF SPECIFIC CALENDAR DATES, THE INVITATION WILL INCLUDE A PROVISION THAT IT IS ASSUMED THAT AN AWARD WILL BE MADE BY A CERTAIN DATE, WE DO NOT SEE THAT THE FAILURE TO INSERT A CONTEMPLATED DATE OF AWARD IN THE INSTANT INVITATION OPERATED TO YOUR DETRIMENT IN ANY WAY. IN THE FIRST PLACE, THE PRIMARY CAUSE FOR THE DELAY IN MAKING THE AWARD WAS THE ERROR YOU MADE IN YOUR BID. ALSO WE NOTE THAT BY THE TERMS OF YOUR BID YOU ORIGINALLY REQUIRED ACCEPTANCE WITHIN 30 DAYS AFTER OPENING. THIS SERVED AS A CONTROL AS TO THE TIME OF AWARD IN THE SAME MANNER AS WOULD HAVE A STATEMENT IN THE INVITATION AS TO THE TIME THE AWARD WOULD BE MADE. FINALLY IT IS NOTED THAT YOU EXTENDED THE ACCEPTANCE DATE OF YOUR BID WITHOUT REQUESTING AN EXTENSION OF THE DELIVERY SCHEDULE.

WHILE YOUR BID WAS REJECTED BECAUSE IT WAS DETERMINED YOUR FIRM WAS NOT CAPABLE OF PERFORMING ON TIME AND, PURSUANT TO SECTION 1-705.6 (B), ASPR, THE MATTER ORDINARILY WOULD BE SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION AS TO WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED, THE CONTRACTING OFFICER WAS NOT OBLIGED TO FOLLOW SUCH PROCEDURE HERE. SECTION 1-705.6 (B) (A), ASPR, PROVIDES THAT SUCH PROCEDURE IS NOT MANDATORY WHERE THE CONTRACTING OFFICER CERTIFIES IN WRITING THAT AWARD MUST BE MADE WITHOUT DELAY. SUCH A CERTIFICATE IS IN THE FILE BEFORE US AND THERE IS NOTHING IN THE RECORD WHICH WOULD REQUIRE OUR OFFICE TO QUESTION THE BASIS OF THE CERTIFICATION.

IT LONG HAS BEEN AN ESTABLISHED RULE OF OUR OFFICE THAT THE DETERMINATION OF THE CAPABILITIES OF A BIDDER--- INDEPENDENT OF THE AUTHORITY OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY--- IS PRIMARILY THE FUNCTION OF THE PROCUREMENT AGENCY, AND IN THE ABSENCE OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS FOR THE DETERMINATION, WE WILL NOT OBJECT TO THE DETERMINATION AS MADE. 38 COMP. GEN. 248.

IN CONCLUSION, WHILE WE NOTE THAT SUBSEQUENT TO AWARD OF THE CONTRACT TO WESTCLOX, THE PROCUREMENT AGENCY WAIVED THE REQUIREMENT FOR PREPRODUCTION SAMPLE SUBMISSION SINCE WESTCLOX IS A CURRENT PRODUCER OF THE ITEMS, SUCH ACTION IS NOT OPEN TO QUESTION BY OUR OFFICE BECAUSE LITERAL COMPLIANCE WITH THE INVITATION REQUIREMENT AFTER AWARD WOULD HAVE SERVED NO USEFUL PURPOSE.

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