B-173967, FEB 10, 1972

B-173967, FEB 10, 1972

BID PROTESTS - NONRESPONSIBILITY DECISION DENYING PROTESTS OF FMC CORPORATION AGAINST AWARDS OF CONTRACTS TO BARRY MILLER ORDNANCE, INC., UNDER RFQS ISSUED BY THE NAVAL AIR SYSTEMS COMMAND (NAVAIR) AND THE NAVY REGIONAL PROCUREMENT OFFICE, LOS ANGELES (NRPOLA), NAVAL SUPPLY SYSTEMS COMMAND, FOR PROCUREMENTS OF FUZES. ALTHOUGH PROTESTANT'S ORIGINAL BID ON THE NAVAIR SOLICITATION WAS LOW, OFFER REVISIONS WERE MADE SUBSEQUENT TO DISCUSSIONS REQUIRED UNDER 10 U.S.C. 2304(G), AND BARRY MILLER BECAME LOW BIDDER. A PRE-AWARD SURVEY CONFIRMED THAT COMPANY'S RESPONSIBILITY AND, ABSENT EVIDENCE THAT SUCH DETERMINATION WAS ARBITRARY OR UNREASONABLE, THERE IS NO LEGAL BASIS FOR OBJECTION TO THE CONTRACTING OFFICER'S DECISION. 47 COMP. GEN. 373, 376 (1968). IN REGARD TO THE SECOND SOLICITATION, NRPOLA'S REVIEW CONCLUDED THAT PROTESTANT'S LOW OFFER WAS SO TECHNICALLY DEFICIENT THAT FURTHER DISCUSSIONS WERE NOT WARRANTED. IN VIEW OF THIS FACT, THE SECOND PROTEST MUST ALSO BE DENIED.

TO FMC CORPORATION:

WE REFER TO YOUR LETTER OF AUGUST 19, 1971, ADDRESSED TO CONGRESSMAN CHARLES E. WIGGINS, PROTESTING AGAINST AWARDS OF CONTRACTS ON WHICH FMC CORPORATION (FMC) HAD SUBMITTED BIDS. IN A COMMUNICATION OF AUGUST 26, 1971, MR. WIGGINS TRANSMITTED YOUR PROTEST TO OUR OFFICE AND REQUESTED OUR VIEWS ON YOUR PROTESTS.

IN ITS LETTER OF AUGUST 19, 1971, FMC ALLEGED THAT NAVAL AIR SYSTEMS COMMAND (NAVAIR) USED IMPROPER PROCUREMENT PROCEDURES IN AWARDING A CONTRACT TO A BIDDER NOT CAPABLE OF PERFORMING IN ACCORDANCE WITH THE REQUIREMENTS OF REQUEST FOR QUOTATIONS (RFQ) N00019-71-Q-0085, WHICH WAS ISSUED ON MARCH 2, 1971, AND WHICH REQUESTED QUOTES ON SHRIKE MISSILE AG M4 5A, MK 330-MOD 2, FUZES.

AS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY OF MARCH 3, 1971, THE PROCUREMENT WAS ORIGINALLY LIMITED TO BARRY MILLER ORDNANCE, INC. (BARRY MILLER), AND THE BULOVA WATCH COMPANY (BULOVA). FMC, HOWEVER, REQUESTED A COPY OF THE RFQ AND SUBMITTED A QUOTATION WHICH WAS INITIALLY THE LOWEST QUOTATION RECEIVED AT $124,486, FOLLOWED BY BARRY MILLER AT $138,338.25, AND BULOVA AT $166,585.45. ALL SUBMITTED OFFERS WERE DETERMINED TO BE WITHIN THE COMPETITIVE RANGE AND, CONSEQUENTLY, DISCUSSIONS WERE HELD WITH ALL THREE FIRMS AS REQUIRED BY 10 U.S.C. 2304(G). AFTER THE SUBMISSION OF OFFER REVISIONS AND FURTHER EVALUATION IN WHICH FIRST-ARTICLE TESTING COSTS OF APPROXIMATELY $12,000 WERE ADDED TO THE OFFERS OF BOTH FMC AND BARRY MILLER, THE LATTER'S OFFER AT $132,419.10 WAS LOWEST, FOLLOWED BY FMC AT $136,298.70 AND BULOVA AT $161,669.30.

ALTHOUGH BARRY MILLER HAD PERFORMED OTHER GOVERNMENT CONTRACTS FOR PROCUREMENTS SIMILAR TO THAT REQUIRED UNDER THE PRESENT RFQ, NAVAIR REQUESTED A PRE-AWARD SURVEY OF THE COMPANY'S CAPABILITY BECAUSE BARRY MILLER HAD RECENTLY TRANSFERRED ITS OPERATION TO A NEW LOCATION. THE PRE- AWARD SURVEY REPORT CONCLUDED THAT BARRY MILLER WAS CAPABLE OF PERFORMING UNDER THE TERMS OF THE RFQ AND RECOMMENDED THAT IT BE AWARDED THE PROPOSED CONTRACT. THIS PRE-AWARD SURVEY WAS THE BASIS FOR THE CONTRACTING OFFICER'S DETERMINATION THAT BARRY MILLER WAS A RESPONSIBLE FIRM AND WE CANNOT CONCLUDE THAT SUCH DETERMINATION WAS ARBITRARY, CAPRICIOUS, OR UNREASONABLE. ABSENT SUCH A SHOWING, NO LEGAL OBJECTION TO A DETERMINATION CONCERNING AN OFFEROR'S RESPONSIBILITY AND CAPABILITY IS POSSIBLE. SEE 47 COMP. GEN. 373, 376 (1968). IT IS OUR OPINION THAT THE AWARD MADE UNDER RFQ N00019-71-Q 0085 IS PROPER AND IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

FMC ALSO ALLEGES IRREGULARITIES IN THE PROCUREMENT METHODS UTILIZED IN CONNECTION WITH REQUEST FOR QUOTATIONS (RFQ) N00123871-Q-1380, ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, LOS ANGELES (NRPOLA), NAVAL SUPPLY SYSTEMS COMMAND, COVERING THE PURCHASE OF A QUANTITY OF MK 334-MOD O FUZES. IN ITS LETTER OF AUGUST 19, 1971, FMC MADE THE FOLLOWING STATEMENT:

"SUBSEQUENTLY, WE BID THE MK 334 MOD O FUZE FOR THE PHOENIX MISSILE SYSTEM. AGAIN, WE WERE LOW BIDDER ON A 'MAKE TO PRINT' FIXED PRICE SUPPLY CONTRACT PROPOSAL. OUR PROPOSAL WAS FOR $111,440.00. THE AWARD WAS MADE TO BARRY MILLER ORDNANCE, INC., A SUBSIDIARY OF MAXSON ELECTRONICS, GREAT RIVER, NEW YORK FOR $164,944.00] OUR UNIT PRICE WAS $995.00 EACH FOR 112 UNITS VERSUS $1456.00 PER UNIT AS AWARDED. ***

"WE WERE 'TURNED DOWN' THIS TIME BECAUSE THE NAVY 'FELT WE WERE BUYING INTO THE JOB AND THEY FELT, AS A RESULT OF WHAT THEY CONSIDERED A TOO LOW PRICE, WE WOULD BE COMING BACK TO THEM IN THE FUTURE ASKING FOR RELIEF FROM THE TERMS OF THE CONTRACT']"

IN THE ADMINISTRATIVE REPORT THE CONTRACTING OFFICER INVOLVED WITH THIS SECOND PROCUREMENT REJECTS EACH OF THE ALLEGATIONS MADE BY FMC CONCERNING THIS PROCUREMENT. ALTHOUGH FMC CONSIDERS THE RFQ A "MAKE-TO PRINT" CONTRACT, THE CONTRACTING OFFICER EXPLAINS THAT IT IS ACTUALLY A VERY COMPLEX PROCUREMENT USING 196 DRAWINGS WITH FIFTY-SIX MANDATORY CHANGES AND REQUIRING EXPERTISE IN ELECTRONICS, MINIATURE MECHANICS, AND ELECTRO- MECHANICS. THE FUZES ALSO CONTAIN EXPLOSIVES WHICH ARE INHERENTLY DANGEROUS. THE ALLEGATION BY FMC THAT BARRY MILLER IS NOT RESPONSIBLE IS REFUTED BY THE CONTRACTING OFFICER ON THE GROUND THAT A PRE-AWARD SURVEY REPORT FOUND THE COMPANY COMPETENT TO PERFORM THE CONTRACT AND RECOMMENDED AWARD. ALTHOUGH FMC DID SUBMIT AN INITIAL OFFER SUBSTANTIALLY LOWER THAN ANY OTHER OFFEROR'S, AN NRPOLA REVIEW CONCLUDED THAT FMC HAD FAILED TO INCORPORATE CERTAIN REQUIRED COSTS IN ITS OFFER AND THAT ITS OFFER WAS TECHNICALLY SO DEFICIENT THAT FURTHER DISCUSSIONS WERE NOT WARRANTED. THE BASIS OF THESE DEFICIENCIES, THE CONTRACTING OFFICER HAD ADEQUATE GROUNDS FOR HIS DETERMINATION THAT FMC WAS NO LONGER WITHIN THE COMPETITIVE RANGE AND HIS ACTION IN THIS REGARD IS NOT SUBJECT TO LEGAL OBJECTION BY OUR OFFICE.

WE CONCLUDE, THEREFORE, THAT THE CONTRACTING OFFICER FOLLOWED PROPER PROCUREMENT PROCEDURES IN AWARDING THE CONTRACTS COMPLAINED OF AND IT IS OUR OPINION THAT THERE IS NO VALID GROUND FOR PROTEST BY FMC.