B-152439, DEC. 11, 1963

B-152439, DEC. 11, 1963

TO MERCURY CHEMICAL CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 5, 1963, PROTESTING ANY AWARD TO CHEMICAL COMPOUNDING CORPORATION, JERSEY CITY, NEW JERSEY, UNDER INVITATION FOR BIDS NO. AMC (A) 04-200-64-39.

THE INVITATION IN QUESTION, ISSUED UNDER SMALL BUSINESS SET-ASIDE PROCEDURES, REQUESTED BIDS FOR DISINFECTANT, FOOD SERVICE, CHLORINE POWDER, AS SET FORTH IN THE SCHEDULE ATTACHED THERETO. AT BID OPENING 2:00 P.M., P.D.T., AUGUST 30, 1963, FOUR BIDS WERE RECEIVED, THE LOWEST OF WHICH WAS SUBMITTED BY CHEMICAL COMPOUNDING CORPORATION AT AN AVERAGE UNIT PRICE OF ?237 EACH OR A TOTAL PRICE OF $96,423 FOR 407,000 PACKAGES, F.O.B. DESTINATIONS CITED. IT IS REPORTED THAT WHILE YOUR COMPANY SUBMITTED A BID IT WAS NOT RECEIVED UNTIL AFTER THE DEADLINE SET FORTH IN THE INVITATION FOR BIDS AND THAT THEREFORE IT WAS RETURNED TO YOUR COMPANY UNOPENED. YOU NEVERTHELESS PROTESTED ANY AWARD TO THE LOW BIDDER ON THE GROUND THAT CHEMICAL AT NO TIME ON PREVIOUS CONTRACTS FOR DISINFECTANT, FOOD SERVICE HAD PERFORMED THE MIXING OR GRINDING THEREON UNDER CONDITIONS SPECIFIED IN PARAGRAPH 3.5 OF FEDERAL SPECIFICATION MIL-D-11309B; THAT THROUGH INADEQUATE HOUSEKEEPING CHEMICAL PERMITTED THIS MATERIAL TO BE CONTAMINATED WITH SUCH DEADLY POISONS AS LINDANE; AND THAT THROUGH LACK OF TEMPERATURE AND HUMIDITY CONTROL A PRODUCT OF CONSISTENTLY HIGH QUALITY HAS NOT BEEN PRODUCED BY CHEMICAL.

PRIOR TO THE RECEIPT OF YOUR PROTEST A PRE-AWARD SURVEY OF THE CHEMICAL COMPOUNDING CORPORATION'S PLANT AND FACILITIES HAD BEEN UNDERTAKEN BY THE NEW YORK PROCUREMENT DISTRICT AT THE REQUEST OF THE SAN FRANCISCO PROCUREMENT DISTRICT, WHICH WAS THE PROCURING AGENCY IN THIS INSTANCE. A RESULT OF YOUR PROTEST A MORE COMPREHENSIVE PRE AWARD SURVEY WAS CONDUCTED, AND INQUIRY WAS ALSO MADE OF THE MIDDLETOWN AIR MATERIAL AREA, DEPARTMENT OF THE AIR FORCE, AS TO PERFORMANCE BY CHEMICAL OF A CONTRACT WITH THAT AGENCY FOR THE SAME MATERIAL. THE CONTRACTING OFFICER AFTER A REVIEW AND ANALYSIS OF THE REPORTS RECEIVED FOUND THAT---

A. CHEMICAL IS A RESPONSIBLE FIRM IN ACCORDANCE WITH ASPR 1-903.

B. THE FIRM IS MANUFACTURING DISINFECTANT FOOD SERVICE POWDER IN CONFORMANCE WITH THE APPLICABLE SPECIFICATIONS.

C. THE FIRM DOES HAVE AND IS MAINTAINING PROPER IN-PROCESS CONTROLS.

D. THE ALLEGATIONS CONTAINED IN YOUR LETTER OF PROTEST ARE UNFOUNDED.

IN REGARD TO THE CONTRACTING OFFICER'S DETERMINATION THAT CHEMICAL IS A RESPONSIBLE BIDDER, THE AUTHORITIES ARE IN AGREEMENT THAT DETERMINATION OF THE LOWEST RESPONSIBLE BIDDER IS TO BE MADE BY THE AUTHORIZED OFFICIAL OF THE CONTRACTING AGENCY, WHO IS REQUIRED TO ACT FAIRLY UPON REASONABLE INFORMATION WHICH SUPPORTS THE DETERMINATION MADE. WHEN SUCH OFFICIAL DETERMINES THE RESPONSIBILITY OF A BIDDER, SUCH DETERMINATION CANNOT BE OVERTHROWN BY THE COURTS OR OUR OFFICE UNLESS IT CAN BE HELD THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS OR FRAUDULENT. SEE MCQUILLIN, MUNICIPAL CORPORATIONS, 3RD EDITION, VOLUME 10, SECTION 29.73 AND CASES THEREIN CITED; 38 COMP. GEN. 131; 33 ID. 549; BROWN V. PHOENIX, 272 P.2D. 358; MCNICHOLS V. DENVER, 274 P.2D. 317.

THE RECORD HERE ESTABLISHES THAT THE NECESSARY DETERMINATION AS TO THE RESPONSIBILITY OF CHEMICAL WAS MADE BY THE CONTRACTING OFFICER WITHIN THE FRAMEWORK OF ASPR 1-902 AND 1-903, AND IN THE ABSENCE OF EVIDENCE OF CAPRICIOUS, ARBITRARY, OR FRAUDULENT ACTION, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION THAT THE SUCCESSFUL BIDDER IS CAPABLE AND QUALIFIED TO PERFORM THE CONTRACT UPON AWARD.