B-160649, AUG. 7, 1967

B-160649, AUG. 7, 1967

BIDDERS - RESPONSIBILITY - PREAWARD SURVEY DECISION TO J. CARNER CO., INC., AFFIRMING COMP. GEN. DECISION OF MARCH 27, 1967, DENYING PROTEST AGAINST AWARD TO HOFMAN PAUL CRYOGENIC DIVISION, AIR REDUCTION CO. INC., BY NASA, WHITE SANDS TEST FACILITY ON BASIS THAT DETERMINATION OF NONRESPONSIBILITY WAS PROPER. AN ADMINISTRATIVE DETERMINATION OF THE NON-RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR FOR CRYOGENIC EQUIPMENT WHICH INDICATED LACK OF FINANCIAL CAPACITY AND ABILITY TO MEET REQUIRED DELIVERY SCHEDULE MUST BE UPHELD. ALTHOUGH THE PROSPECTIVE CONTRACTOR HAS SUBSEQUENTLY GAINED EXPERIENCE IN THE CRYOGENIC FIELD THROUGH PERFORMANCE OF PURCHASE ORDERS NOT UNDER DEFENSE CONTRACT ADMINISTRATIVE SERVICES, THE DETERMINATION OF NONRESPONSIBILITY IS NOT SUBJECT TO QUESTION.

TO MR. NEVILLE SILVERMAN, PROJECT MANAGER, J. CARNER CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1967, REQUESTING RECONSIDERATION OF OUR DECISION B-160649, DATED MARCH 27, 1967, WHICH DENIED YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO HOFMAN-PAUL CRYOGENIC DIVISION, AIR REDUCTION COMPANY, INC. (HOFMAN-PAUL), UNDER INVITATION FOR BIDS NO. MSC-WS-67-7-AD, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) MANNED SPACECRAFT CENTER, WHITE SANDS TEST FACILITY, LAS CRUCES, NEW MEXICO.

YOUR REQUEST FOR RECONSIDERATION IS DIRECTED TO THE VALIDITY OF THE PREAWARD SURVEY MADE OF YOUR FIRM BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION-LOS ANGELES (DCASR), UPON WHICH THE DETERMINATION WAS BASED THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER UNDER THE CRITERIA SET OUT IN NASA PR 1.903 AND ASPR 1-903. YOU HAVE TAKEN ISSUE WITH THE FINDINGS MADE BY DCASR, PARTICULARLY WITH REFERENCE TO THE ROLE OF CRYO- SONICS, INC., IN YOUR OPERATIONS AND YOU ALSO CITE SEVERAL EXAMPLES OF YOUR FIRM'S EXPERIENCE IN THE DESIGN AND BUILDING OF SIMILAR EQUIPMENT TO THAT INVOLVED IN THE INSTANT PROCUREMENT.

IT IS OUR UNDERSTANDING THAT DCASR PREAWARD SURVEYS, SUCH AS THE ONE HERE INVOLVED, ARE GENERALLY ACCOMPLISHED ON A TEAM BASIS COMPRISED OF TECHNICAL REPRESENTATIVES FROM QUALITY ASSURANCE AND PRODUCTION AND FINANCIAL SPECIALISTS. THE RESULTS OF THEIR INDIVIDUAL INVESTIGATIONS ARE COMPILED AND FORWARDED TO A PREAWARD MONITOR WITH RECOMMENDATIONS IN THEIR RESPECTIVE AREAS OF ANALYSIS. THE PREAWARD FINDINGS AND RECOMMENDATIONS ARE THEN SUBJECTED TO A SUPERVISORY REVIEW AND ULTIMATELY ARE EXAMINED BY A PREAWARD SURVEY BOARD COMPOSED OF KEY PERSONNEL APPOINTED BY THE REGION DIRECTOR. THE FINAL REPORT SUBMITTED TO THE CONTRACTING OFFICER REPRESENTS THE COLLECTIVE JUDGMENTS AND RECOMMENDATIONS OF THE REGION. HOWEVER, THE ULTIMATE AUTHORITY AS TO WHETHER TO GRANT OR DENY AN AWARD STILL RESTS WITH THE CONTRACTING OFFICER WHO EVALUATES THE RECOMMENDATIONS CONTAINED IN THE PREAWARD SURVEY REPORT, TOGETHER WITH OTHER INFORMATION AVAILABLE TO HIM, IN RENDERING A FINAL DETERMINATION REGARDING THE PROPOSED CONTRACTOR'S RESPONSIBILITY. B-160562 DATED JULY 26, 1967.

WITH REGARD TO YOUR CONTENTIONS RESPECTING THE PREAWARD SURVEY CONDUCTED BY DCASR, THE DEFENSE SUPPLY AGENCY, THROUGH THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, HAS REPORTED AS FOLLOWS:

"2. THE J. CARNER COMPANY WAS VISITED 24 MAY 67 BY MESSRS CARL ROTH, CHIEF PRODUCTION SUPPORT BRANCH -B- (DCRL-POT), BOB G. PATTERSON, PRE- AWARD MONITOR (DCRL-PO) AND ROBERT HUNDLEY, LEGAL COUNSEL (DCRL-L). CONTRACTOR REPRESENTATIVE INTERVIEWED WAS MR. NEVILLE SILVERMAN, PROJECT MANAGER OF J. CARNER COMPANY.

"3. THE J. CARNER COMPANY OBJECTED TO THAT PORTION OF THE REPORT WHICH STATED THAT J. CARNER COMPANY HAD NO EXPERIENCE IN MANUFACTURING EQUIPMENT OF THE NATURE REQUIRED. THE RE-EXAMINATION CONFIRMED ORIGINAL FINDINGS THAT SINCE 1964 THE J. CARNER COMPANY HAS SUPPLIED ITEMS OF A SIMILAR NATURE. THE PURCHASE ORDERS LISTED IN THE BASIC J. CARNER LETTER ARE IN EXISTENCE. ONE ORDER IS STILL IN VARIOUS STAGES OF COMPLETION. THE ORIGINAL PRE-AWARD SURVEY DID, ON REVERSE OF PAGE 4, MAKE MENTION OF FOUR (4) SUB-CONTRACTS THAT SUBJECT COMPANY HAD COMPLETED. THE NATURE OF THE AFOREMENTIONED CONTRACTS WAS NOT SPECIFIED. HOWEVER, IN SECTION X OF THE SURVEY, AND ALSO IN THE INDUSTRIAL ENGINEER'S REPORT, SUB-CONTRACTS WERE SPECIFIED BY NUMBER INDICATING THAT J. CARNER DID HAVE PREVIOUS EXPERIENCE IN THE MANUFACTURE OF CRYOGENIC EQUIPMENT.

"4. THE STATEMENT BY THE ADMINISTRATIVE CONTRACTING OFFICER WHICH RELATES TO THE EXPERIENCE FACTOR WAS BASED UPON DCASR-LA OFFICE RECORDS WHICH ACCURATELY SHOWED NO RELATED EXPERIENCE IN THE CRYOGENIC FIELD WITH RESPECT TO PRIME CONTRACTS ADMINISTERED BY THIS REGION.

"5. THE ORIGINAL PRE-AWARD SURVEY -NO AWARD- RECOMMENDATION WAS NOT BASED ON THE COMPANY'S LACK OF EXPERIENCE. IN FACT, ALL FACTORS RELATING TO TECHNICAL CAPABILITY, EXCEPT ABILITY TO MEET DELIVERY SCHEDULE, WERE REPORTED TO BE SATISFACTORY. NO EXCEPTIONS WERE TAKEN BY J. CARNER COMPANY REPRESENTATIVES TO THE ORIGINAL PRE-AWARD FINDINGS EXCEPT TO THAT PORTION OF THE CONTROLLER GENERAL'S LETTER WHICH RELATES TO LACK OF PAST EXPERIENCE.

"6. IT SHOULD BE REITERATED THAT THE PURCHASING OFFICE MADE THE FINAL DETERMINATION OF NON-RESPONSIBILITY BASED PARTLY ON THE INFORMATION PROVIDED BY THIS OFFICE. NO MENTION WAS MADE BY THE CONTROLLER GENERAL REGARDING THE NEGATIVE FACTORS WHICH PROMPTED THE RECOMMENDATION OF -NO AWARD.- THESE FACTORS WERE FACTOR 4, FINANCIAL CAPABILITY AND FACTOR 13, ABILITY TO MEET REQUIRED SCHEDULE. THE PRE AWARD SURVEY REPORT, CITING PURCHASE ORDERS NOT UNDER DCASR-LA ADMINISTRATION, SUPPORTS J. CARNER COMPANY'S CONTENTION THAT THEY ARE TECHNICALLY QUALIFIED TO MANUFACTURE CRYOGENIC EQUIPMENT. RE EXAMINATION OF OUR FORMER POSITION CONFIRMS THE ORIGINAL FINDINGS AS OF THAT DATE. THE ONLY CLARIFICATION APPROPO IS THAT THE STATEMENT BY THE ADMINISTRATIVE CONTRACTING OFFICER, BEING BASED UPON DCASR-LA RECORDS OF PRIME CONTRACTS ADMINISTERED BY THIS REGION, DOES NOT APPLY TO THE J. CARNER COMPANY EXPERIENCE IN THE CRYOGENIC FIELD GAINED THROUGH PERFORMANCE OF PURCHASE ORDERS NOT UNDER DCASR-LA CONTRACT ADMINISTRATION.'

THEREFORE, WHILE DCASR NOW SEEMS TO CONCEDE THAT J. CARNER CO., INC., HAS GAINED EXPERIENCE IN THE CRYOGENIC FIELD THROUGH PERFORMANCE OF PURCHASE ORDERS NOT UNDER DCASR ADMINISTRATION, DCASR STILL MAINTAINS THAT ITS ORIGINAL "NO AWARD" RECOMMENDATION WAS VALID DUE TO THE NEGATIVE RATING YOUR COMPANY RECEIVED ON TWO FACTORS OF THE PRE AWARD SURVEY, THAT IS, FINANCIAL CAPACITY AND ABILITY TO MEET REQUIRED DELIVERY SCHEDULE.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THE DETERMINATION MADE BY THE CONTRACTING OFFICER OF YOUR FIRM'S NONRESPONSIBILITY FOR PURPOSES OF THE INSTANT PROCUREMENT IS NOT SUBJECT TO QUESTION BY OUR OFFICE.