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FACILITY CAPABILITY REPORT- SECOND SURVEY IN SITUATION WHERE LOW BIDDER WAS DETERMINED NONRESPONSIVE. SECOND LOW BIDDER WAS DETERMINED NONRESPONSIBLE. CONTRACT AWARD TO SECOND LOW BIDDER IS AFFIRMED. SINCE CONTRACTING OFFICER'S REVERSAL OF INITIAL DETERMINATION OF SECOND LOW BIDDER'S NONRESPONSIBILITY WAS ADEQUATELY SUPPORTED BY ADDITIONAL INFORMATION SUBMITTED AND APPARENTLY CONFORMS WITH ARMED SERVICES PROCUREMENT REGULATION REQUIREMENTS. INASMUCH AS ULTIMATE OBJECTIVE IS DETERMINATION OF RESPONSIBILITY AT TIME OF AWARD. IT IS NOT OBJECTIONAL TO CONSIDER NEW INFORMATION AND REEVALUATE BIDDER'S RESPONSIBILITY. TO SIMPSON ELECTRIC COMPANY: REFERENCE IS MADE TO YOUR LETTER OF MARCH 26.

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B-168960, MAY 26, 1970

BIDDERS--QUALIFICATIONS--PREAWARD SURVEY--FACILITY CAPABILITY REPORT- SECOND SURVEY IN SITUATION WHERE LOW BIDDER WAS DETERMINED NONRESPONSIVE, SECOND LOW BIDDER WAS DETERMINED NONRESPONSIBLE, AND DEFENSE CONTRACT ADMINISTRATION SERVICES REGION RECOMMENDED "COMPLETE AWARD" TO THIRD LOW BIDDER (PROTESTANT), CONTRACT AWARD TO SECOND LOW BIDDER IS AFFIRMED, SINCE CONTRACTING OFFICER'S REVERSAL OF INITIAL DETERMINATION OF SECOND LOW BIDDER'S NONRESPONSIBILITY WAS ADEQUATELY SUPPORTED BY ADDITIONAL INFORMATION SUBMITTED AND APPARENTLY CONFORMS WITH ARMED SERVICES PROCUREMENT REGULATION REQUIREMENTS. INASMUCH AS ULTIMATE OBJECTIVE IS DETERMINATION OF RESPONSIBILITY AT TIME OF AWARD, IT IS NOT OBJECTIONAL TO CONSIDER NEW INFORMATION AND REEVALUATE BIDDER'S RESPONSIBILITY, AND INITIAL ADVERSE DETERMINATION, SUBSEQUENTLY REVERSED, DOES NOT PRECLUDE VALID AWARD TO REEVALUATED BIDDER. SEE B 152832, MAR. 18, 1964.

TO SIMPSON ELECTRIC COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1970, PROTESTING THE AWARD OF A CONTRACT TO SUN ELECTRIC COMPANY (SUN) UNDER INVITATION FOR BIDS (IFB) NO. DAAF01-70-B-0265 ISSUED BY THE ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS.

THE SUBJECT INVITATION REQUESTED BIDS ON A QUANTITY OF TACHOMETER TEST SETS. THE OPENING DATE WAS SET AS NOVEMBER 13, 1969, HOWEVER, PRIOR TO THIS DATE, THREE AMENDMENTS WERE ADDED TO THE IFB AND THE BID OPENING WAS EXTENDED TO DECEMBER 8, 1969. THIRTY-SEVEN FIRMS WERE SOLICITED AND EIGHT OFFERS WERE RECEIVED. MKB MANUFACTURING CORPORATION (MKB) WAS THE LOW BIDDER, SUN WAS THE SECOND-LOW BIDDER, AND YOU WERE THE THIRD-LOW BIDDER. MKB WAS DETERMINED TO BE NONRESPONSIVE SINCE THEY FAILED TO RETURN ONE OF THE AMENDMENTS. THIS DISQUALIFICATION OF MKB MADE SUN THE APPARENT LOW BIDDER. THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) IN CHICAGO WAS REQUESTED TO CONDUCT A PREAWARD SURVEY TO ASSIST THE CONTRACTING OFFICER IN DETERMINING THE RESPONSIBILITY OF SUN.

THE REPORT BY DCASR WAS ISSUED DECEMBER 29, 1969, AND CONTAINED A "NO AWARD" RECOMMENDATION FOR THE REASON THAT SUN HAD NOT DEVELOPED A PRODUCTION PLAN BASED ON VERIFIABLE DELIVERY DATES OF THE NECESSARY MATERIALS, PURCHASE PARTS AND SUBCONTRACTING SERVICES. IN VIEW OF THIS RECOMMENDATION, THE CONTRACTING OFFICER DETERMINED ON JANUARY 2, 1970, THAT SUN WAS NONRESPONSIBLE WITHIN THE MEANING OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-902 AND 1-903, AND ROCK ISLAND ARSENAL REQUESTED DCASR TO CONDUCT A PREAWARD SURVEY OF YOUR COMPANY. IN A LETTER DATED JANUARY 12, 1970, YOU WERE INFORMED BY THE CONTRACTING OFFICER THAT THE BIDS OF MKB AND SUN WERE "UNACCEPTABLE," AND YOU WERE ASKED TO VERIFY YOUR BID PRICE BECAUSE OF THE POSSIBILITY OF ERROR. BY LETTER DATED JANUARY 15, 1970, YOU CONFIRMED YOUR BID PRICE TO THE ROCK ISLAND ARSENAL. DURING THE MONTH OF JANUARY DCASR CONDUCTED A PREAWARD SURVEY OF YOUR COMPANY AND IN A REPORT DATED FEBRUARY 5, 1970, THEY RECOMMENDED "COMPLETE AWARD." ON MARCH 13, 1970, YOU WERE NOTIFIED THAT AN AWARD HAD BEEN MADE TO SUN, AND YOU PROTESTED TO THIS OFFICE ON THE GROUNDS THAT SUN HAD BEEN DETERMINED TO BE A NONRESPONSIVE BIDDER BY THE CONTRACTING OFFICER.

ALTHOUGH WE UNDERSTAND HOW THE CONTRACTING OFFICER'S STATEMENT, THAT SUN'S BID WAS UNACCEPTABLE, COULD BE INTERPRETED AS MEANING ITS BID WAS NONRESPONSIVE, SUCH WAS NOT THE SITUATION. THE INITIAL DENIAL OF AWARD TO SUN WAS BASED (AS STATED ABOVE) ON A DETERMINATION THAT THE FIRM WAS NONRESPONSIBLE. AFTER SUN HAD BEEN DETERMINED NONRESPONSIBLE, IT SUBMITTED ADDITIONAL INFORMATION ON JANUARY 21, 28, AND FEBRUARY 12, 1970, TO REFUTE THE BASIS FOR THE NEGATIVE RECOMMENDATION BY DCASR. SUBSEQUENTLY, DCASR REEVALUATED SUN, AND ON FEBRUARY 26, 1970, DETERMINED THAT FIRM WOULD HAVE ADEQUATE CAPABILITY AND SUFFICIENT VENDOR LEAD TIME TO MEET THE DELIVERY SCHEDULE. DCASR HAVING CHANGED ITS "NO AWARD" RECOMMENDATION ON SUN TO "COMPLETE AWARD," THE CONTRACTING OFFICER RESCINDED HIS PREVIOUS DETERMINATION OF NONRESPONSIBILITY, AND ON MARCH 2, 1970, HE ISSUED A "DETERMINATION OF RESPONSIBILITY" FOR SUN. THE CONTRACT WAS AWARDED TO SUN, AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER, ON MARCH 13, 1970.

WHILE THE CONTRACTING OFFICER'S REVERSAL OF HIS INITIAL DETERMINATION THAT SUN WAS NONRESPONSIBLE MAY HAVE OPERATED TO YOUR DETRIMENT, WE BELIEVE SUCH ACTION WAS ADEQUATELY SUPPORTED BY THE ADDITIONAL INFORMATION SUBMITTED BY SUN, AND APPEARS TO BE IN CONFORMANCE WITH THE PROVISIONS OF ASPR 1-905.2 REQUIRING THAT INFORMATION REGARDING PERFORMANCE CAPABILITY BE OBTAINED ON A CURRENT BASIS WITH RELATION TO THE DATE OF THE CONTRACT AWARD. INASMUCH AS THE ULTIMATE OBJECTIVE IS THE DETERMINATION OF RESPONSIBILITY AT THE TIME OF AWARD, WE HAVE HELD THAT IT IS NOT OBJECTIONABLE TO CONSIDER NEW INFORMATION AND REEVALUATE A BIDDER'S RESPONSIBILITY, AFTER AN INITIAL DETERMINATION OF NONRESPONSIBILITY, AND THAT SUCH AN INITIAL ADVERSE DETERMINATION, WHICH IS SUBSEQUENTLY REVERSED, DOES NOT PRECLUDE A VALID AWARD TO THAT BIDDER. B-152832, MARCH 18, 1964.

ACCORDINGLY, SINCE THE LOW RESPONSIVE BIDDER IS ENTITLED TO THE AWARD UNLESS IT IS DETERMINED THAT HE IS NOT QUALIFIED TO PERFORM, YOUR PROTEST AGAINST THE AWARD TO SUN, WHICH WAS DETERMINED TO BE THE LOW QUALIFIED AND RESPONSIVE BIDDER AT TIME OF AWARD, IS DENIED.

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