B-170914, JAN 5, 1971

B-170914, JAN 5, 1971

BID PROTEST - BIDDER RESPONSIBILITY DENIAL OF PROTEST AGAINST REJECTION OF PROPOSAL SUBMITTED BY THUNDER INTERNATIONAL CORPORATION - SECOND LOW OFFEROR, ON INVITATION COVERING POWER SUPPLIES AND RELIABILITY PREDICTIONS, PROVISIONING DOCUMENTATION AND REPRESENTATION AND ENGINEERING DRAWINGS ISSUED BY THE NAVAL AVIONICS FACILITY, AND AWARD TO FOURTH LOW OFFEROR, MELCOR ELECTRONICS CORPORATION. CONTRACTING OFFICER DETERMINED THAT PROTESTANT WAS NONRESPONSIBLE DUE TO AN UNFAVORABLE PREAWARD SURVEY WHICH FOUND THAT PROTESTANT HAD UNSATISFACTORY PRODUCTION AND FINANCIAL CAPABILITIES AND UNSATISFACTORY LABOR RESOURCES AND PERFORMANCE RECORD AND UNDER ASPR 1-902, DOUBT AS TO PRODUCTIVE CAPACITY REQUIRES A DETERMINATION OF NONRESPONSIBILITY; GAO WILL NOT QUESTION SUCH DETERMINATION WHERE AS HERE THE RECORD SUPPORTS SUCH DETERMINATION.

TO THUNDER INTERNATIONAL CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1970, PROTESTING AGAINST THE ACTION OF THE NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA, IN REJECTING YOUR FIRM'S PROPOSAL SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. N00163-71-R-0037, ISSUED ON JULY 24, 1970.

THE RFP REQUESTED OFFERS TO FURNISH TWO ITEMS OF POWER SUPPLIES AND RELIABILITY PREDICTIONS, PROVISIONING DOCUMENTATION, AND REPRESENTATION AND ENGINEERING DRAWINGS. ITEMS 1 AND 2 CONSTITUTE LOT I AND ITEMS 3 THROUGH 7 CONSTITUTE LOT II. DELIVERY OF THE POWER SUPPLY UNIT UNDER LOT II WAS REQUIRED TO BE MADE 60 DAYS AFTER DATE OF AWARD. THE CLOSING DATE FOR RECEIPT OF OFFERS WAS AUGUST 10, 1970. THE PROCUREMENT WAS ASSIGNED AN 02 PRIORITY DESIGNATOR UNDER THE UNIFORM MATERIAL MOVEMENT ISSUE PRIORITY SYSTEM, INDICATING AN URGENT REQUIREMENT FOR THE POWER SUPPLIES. PROSPECTIVE OFFERORS WERE ADVISED UNDER PARAGRAPH C.20 OF THE SOLICITATION THAT AN AWARD WOULD BE GENERALLY MADE TO A SINGLE OFFEROR ON EACH ENTIRE LOT.

THE LOWEST OFFER ON LOT I IN THE AMOUNT OF $6,314 WAS SUBMITTED BY THE BULOVA WATCH COMPANY, INC., AND CONTRACT NO. N00163-71-C-0108 WAS AWARDED TO THAT COMPANY ON AUGUST 26, 1970. THE LOWEST OFFER ON LOT II SUBMITTED BY C. E. INDUSTRIES WAS WITHDRAWN BEFORE AN AWARD COULD BE ACCOMPLISHED. SINCE YOUR FIRM SUBMITTED THE NEXT LOWEST OFFER ON LOT II, A PREAWARD SURVEY WAS REQUESTED ON YOUR CORPORATION BY THE CONTRACTING OFFICER. THIS SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, HARTFORD, CONNECTICUT, AND A RECOMMENDATION OF NO AWARD WAS MADE. THE BASIS STATED BY THE SURVEY TEAM FOR THIS RECOMMENDATION WAS YOUR FIRM'S UNSATISFACTORY PRODUCTION AND FINANCIAL CAPABILITIES AND UNSATISFACTORY LABOR RESOURCE AND PERFORMANCE RECORD. IN REGARD TO YOUR PERFORMANCE RECORD, THE PREAWARD SURVEY REPORT SHOWS THAT YOUR FIRM WAS DELINQUENT 66 DAYS UNDER A PREVIOUS CONTRACT COVERING ITEMS IDENTICAL TO ITEMS 1 AND 2 OF THE SUBJECT SOLICITATION. AS TO YOUR LABOR RESOURCE, IT APPEARS THAT YOUR FIRM CONTEMPLATED HIRING A QUALIFIED DRAFTSMAN ON A PART -TIME BASIS RATHER THAN A FULL-TIME BASIS WHICH, IT IS REPORTED, IS NECESSARY FOR THE TIMELY COMPLETION OF ITEMS 5AA AND 7.

THEREAFTER, ON SEPTEMBER 18, 1970, THE CONTRACTING OFFICER MADE A DETERMINATION THAT YOUR FIRM WAS NOT RESPONSIBLE IN THAT IT DID NOT MEET THE STANDARDS OF RESPONSIBILITY SET FORTH IN PARAGRAPHS 1-903 AND 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). SINCE THERE WAS AN URGENT REQUIREMENT FOR THE INSTANT PROCUREMENT, THE MATTER OF YOUR CONCERN'S RESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION PURSUANT TO ASPR 1-705.4(C)(IV). SINCE THE THIRD LOW OFFEROR, NUCLEAR CORPORATION OF AMERICA, DID NOT OFFER TO MEET THE REQUIRED DELIVERY SCHEDULE, THE CONTRACT COVERING LOT II WAS AWARDED TO MELCOR ELECTRONICS CORPORATION, THE FOURTH LOW OFFEROR, ON SEPTEMBER 22, 1970, AS THE LOW RESPONSIVE AND RESPONSIBLE OFFEROR.

YOU STATE THAT AT THE TIME YOUR FACILITY WAS CHECKED BY THE PREAWARD SURVEY TEAM, YOUR FIRM HAD A WORK BACKLOG OF $25,000 TO $30,000 AND THAT YOUR REPRESENTATIVE EMPHASIZED TO THE SURVEY TEAM THAT YOU WERE OPERATING AT 15 PERCENT OF YOUR CAPACITY AND THAT YOU HAD SUFFICIENT CAPACITY AND TIME TO MANUFACTURE THE REQUIRED POWER SUPPLIES. YOU STATE THAT THE NAVAL AVIONICS FACILITY HAS LOST APPROXIMATELY 50 DAYS OF VALUABLE LEAD TIME IN DETERMINING WHICH COMPANIES SHOULD RECEIVE THE AWARDS ON LOTS I AND II. YOU CONTEND THAT NEITHER OF THE COMPANIES WHICH RECEIVED THE AWARDS ON LOTS I AND II CAN DELIVER ANY SOONER THAN YOUR CORPORATION. YOU CONTEND THAT LOT II SHOULD HAVE BEEN AWARDED TO YOUR FIRM BECAUSE YOUR OFFER WAS $7,910 LOWER THAN THE OFFER SUBMITTED BY MELCOR ELECTRONICS CORPORATION.

ASPR 1-902 PROVIDES THAT PURCHASES SHALL BE MADE FROM, AND CONTRACTS SHALL BE AWARDED TO, RESPONSIBLE PROSPECTIVE CONTRACTORS ONLY. RESPONSIBLE PROSPECTIVE CONTRACTOR IS ONE WHICH MEETS THE MINIMUM STANDARDS SET FORTH IN ASPR 1-903.1 AND 1-903.2 AND APPLICABLE SPECIAL STANDARDS. ONE OF THE CRITERIA SET OUT AT ASPR 1-903.1(II) IS THAT A PROSPECTIVE CONTRACTOR TO QUALIFY AS RESPONSIBLE MUST "BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE." THAT SECTION FURTHER PROVIDES THAT THE AWARD OF A CONTRACT TO A SUPPLIER BASED ON LOWEST EVALUATED PRICE ALONE CAN BE FALSE ECONOMY IF THERE IS SUBSEQUENT DEFAULT, LATE DELIVERIES, OR OTHER UNSATISFACTORY PERFORMANCE RESULTING IN ADDITIONAL PROCUREMENT OR ADMINISTRATIVE COSTS. UNDER ASPR 1 -902, DOUBT AS TO PRODUCTIVE CAPACITY WHICH CANNOT BE RESOLVED AFFIRMATIVELY BY THE CONTRACTING OFFICER REQUIRES A DETERMINATION OF NONRESPONSIBILITY.

WE HAVE CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO DETERMINE THE RESPONSIBILITY OF A BIDDER (43 COMP. GEN. 228 (1963)), AND THAT SUCH DETERMINATION WILL NOT BE QUESTIONED BY OUR OFFICE WHERE, AS HERE, THE RECORD SUPPORTS THE DETERMINATION. COMP. GEN. 257 (1963); 45 ID. 4 (1965); 47 ID. 373 (1968).

ACCORDINGLY, YOUR PROTEST IS DENIED.