B-155199, NOV. 16, 1964

B-155199, NOV. 16, 1964

TO THE HICKS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 17, 1964, PROTESTING AGAINST THE ACTIONS OF THE UNITED STATES ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, IN CONNECTION WITH INVITATION FOR BIDS NO. AMC/Z/-01-021-64-1356.

THE INVITATION WAS ISSUED JUNE 23, 1964, AND CALLED FOR BIDS ON NIKE- HERCULES CASE AND/ADAPTOR ASSEMBLY. BIDS WERE OPENED AUGUST 28, 1964, AND YOU WERE THE APPARENT LOW BIDDER. WE HAVE BEEN ADVISED THAT AWARD UNDER THIS IFB WAS MADE TO YOUR FIRM ON OCTOBER 27, 1964.

YOU COMPLAIN, IN SUBSTANCE, THAT YOUR FIRM WAS SUBJECTED TO HARASSING, ARBITRARY, CAPRICIOUS, UNREASONABLE AND UNCOOPERATIVE REQUESTS FOR INFORMATION ALREADY AVAILABLE TO THE GOVERNMENT REGARDING YOUR PERFORMANCE UNDER OTHER GOVERNMENT CONTRACTS, AND THAT THERE IS EVIDENCE YOUR BID WAS OPENED PRIOR TO THE OPENING DATE.

WITH REGARD TO THE LATTER COMPLAINT, THE PROCURING ACTIVITY DENIES THAT YOUR BID WAS OPENED AT ANY TIME PRIOR TO THE TIME SCHEDULED FOR OPENING. IT IS REPORTED THAT THREE AMENDMENTS TO THE ORIGINAL INVITATION WERE ISSUED, AND THAT ON EACH OF THESE OCCASIONS, AT YOUR REQUEST, YOUR BID WAS RETURNED TO YOU UNOPENED. SINCE YOU HAVE FURNISHED NO EVIDENCE TO THE CONTRARY, WE SEE NO BASIS FOR QUESTIONING THE ADMINISTRATIVE DENIAL.

YOUR OTHER COMPLAINT APPARENTLY STEMS FROM VISITS TO YOUR PLANT BY PERSONNEL OF THE PROCURING ACTIVITY IN CONNECTION WITH A PREAWARD SURVEY, WHICH WE ARE ADVISED WAS CONDUCTED ON SEPTEMBER 8, 9, 17 AND 18, TO DETERMINE YOUR RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR. PARAGRAPH 1- 904.1 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT NO CONTRACT SHALL BE AWARDED TO A FIRM UNLESS THE CONTRACTING OFFICER MAKES AN AFFIRMATIVE DETERMINATION THAT SUCH FIRM IS RESPONSIBLE WITH RESPECT TO CERTAIN STANDARDS STATED IN 1-902 AND 1-903. PARAGRAPH 1-905.1 PROVIDES THAT BEFORE MAKING A DETERMINATION OF RESPONSIBILITY THE CONTRACTING OFFICER SHALL HAVE IN HIS POSSESSION OR SHALL OBTAIN SUFFICIENT INFORMATION TO SATISFY HIMSELF THAT A PROSPECTIVE CONTRACTOR CURRENTLY MEETS THE MINIMUM STANDARDS SET FORTH IN 1-903, AND THAT HE SHALL USE SUCH INFORMATION AS IS ALREADY IN THE POSSESSION OF THE DEPARTMENT OF DEFENSE TO THE EXTENT THAT SUCH INFORMATION IS CURRENTLY VALID. FURTHERMORE, 1- 905.2 PROVIDES THAT WITH RESPECT TO FINANCIAL RESOURCES AND PERFORMANCE CAPABILITY SUCH INFORMATION "SHALL BE OBTAINED ON AS CURRENT A BASIS AS FEASIBLE WITH RELATION TO THE DATE OF CONTRACT AWARD.' WHILE IT IS TRUE THAT THE GOVERNMENT, AND PARTICULARLY THIS PROCURING ACTIVITY, WAS IN POSSESSION OF SUCH OF THE NECESSARY INFORMATION TO DETERMINE YOUR RESPONSIBILITY, IT IS CLEAR FROM THE FOREGOING THAT IT IS INCUMBENT UPON THE CONTRACTING OFFICER TO CONSIDER SUCH INFORMATION ONLY IF HE FEELS THAT HE IS JUSTIFIED IN ACCEPTING IT AS CURRENTLY VALID.

FOR THESE REASONS WE SEE NO LEGAL BASIS UPON WHICH WE MAY PROPERLY OBJECT TO THE ADMINISTRATIVE ACTION. IN ANY EVENT, SINCE AWARD HAS BEEN MADE TO YOU NO FURTHER ACTION BY OUR OFFICE APPEARS TO BE REQUIRED.