B-164096, JUL. 1, 1968

B-164096, JUL. 1, 1968

TO MILCOM PRODUCTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 22, 1968, PROTESTING THE AWARD OF CONTRACT NO. DSA100-68-C-2159 TO A COMPANY OTHER THAN YOUR FIRM UNDER DEFENSE SUPPLY AGENCY SOLICITATION NO. DSA100-68-B-1444.

THE DEFENSE PERSONNEL SUPPORT CENTER, DEFENSE SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, BY SOLICITATION NO. DSA100-68-B-1444 REQUESTED BIDS -- TO BE OPENED APRIL 1, 1968 -- FOR THE MANUFACTURE OF 128,665 ARMOR BODY FRAGMENTATION PROTECTIVE VESTS WITH 3/4-INCH COLLARS. UNDER THE SOLICITATION DELIVERIES ARE TO BE MADE IN SEVEN MONTHLY INCREMENTS, THE FIRST MONTHLY DELIVERY DUE 90 DAYS AFTER AWARD. YOUR FIRM SUBMITTED THE LOWEST BID. THE NEXT LOWEST BID WAS SUBMITTED BY MARTIN LANE CO., INC. ON APRIL 9, 1968, THE PROCURING ACTIVITY REQUESTED A PREAWARD SURVEY OF YOUR FIRM'S CAPABILITIES AS A PROSPECTIVE CONTRACTOR PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-905.4. IN THIS REGARD, ASPR 1-904.1 PROVIDES GENERALLY THAT BEFORE A CONTRACT MAY BE AWARDED TO ANY FIRM THE CONTRACTING OFFICER SHALL FIRST MAKE AN AFFIRMATIVE WRITTEN DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE GUIDELINES STATED IN ASPR 1-902.

IT IS REPORTED THAT INCREASED DEMANDS FOR THE PROTECTIVE VESTS RESULTED IN SUBSTANTIAL BACK ORDERS; THAT QUANTITIES OF VESTS TO BE DELIVERED UNDER EXISTING CONTRACTS WERE INSUFFICIENT TO SATISFY THE BACK ORDERS; AND THAT IT BECAME IMPERATIVE TO MAKE AN AWARD UNDER THE SOLICITATION FOR BIDS WITHIN AS SHORT A TIME AS POSSIBLE. ACCORDINGLY, ON APRIL 19, 1968, THE CONTRACTING OFFICER OBTAINED THE RESULTS OF THE PREAWARD SURVEY OF YOUR FIRM BY TELEPHONE. THE CONTRACTING OFFICER WAS ADVISED THAT THE SURVEY TEAM HAD RECOMMENDED THAT NO AWARD BE MADE TO MILCOM PRODUCTS. IT WAS THE CONCLUSION OF THE SURVEY TEAM THAT MILCOM PRODUCTS DID NOT HAVE AVAILABLE PERSONNEL TO MEET THE CONTRACT DELIVERY SCHEDULE; THAT IT COULD NOT MEET THE QUALITY ASSURANCE STANDARDS; THAT IT HAD INEFFECTIVE IN-PROCESS CONTROLS; AND THAT THE COMPANY DID NOT FULLY UNDERSTAND THE CONSTRUCTION REQUIREMENTS OF THE END ITEM. IN VIEW OF THE UNFAVORABLE RECOMMENDATION OF THE SURVEY TEAM, THE CONTRACTING OFFICER DETERMINED THAT MILCOM PRODUCTS WAS NOT A RESPONSIBLE BIDDER UNDER THE CRITERIA SET OUT IN ASPR 1 -903.1. BECAUSE OF THE URGENT REQUIREMENT FOR THE PROTECTIVE VESTS, THE CONTRACTING OFFICER AWARDED A CONTRACT ON APRIL 19, 1968, TO THE NEXT LOWEST BIDDER, MARTIN LANE CO., INC., ON THE BASIS OF A FAVORABLE PREAWARD SURVEY.

IN YOUR TELEGRAM OF APRIL 22, 1968, TO OUR OFFICE, AND YOUR UNDATED MEMORANDUM TO THE CONTRACTING OFFICER, THREE REASONS ARE GIVEN AS TO WHY YOU BELIEVE THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR LOW BID WAS IMPROPER.

THE FIRST REASON GIVEN BY YOU IS THAT WHEN THE CONTRACT WAS AWARDED TO THE NEXT LOWEST BIDDER, MARTIN LANE CO., INC., ON APRIL 19, 1968, THE SURVEY TEAM HAD NOT COMPLETED ITS SURVEY OF THE FACILITIES OF YOUR FIRM. IN THIS CONNECTION, THE CONTRACTING OFFICER ADVISES THAT BECAUSE OF THE URGENT REQUIREMENT FOR THE PROTECTIVE VESTS AND IN ORDER TO EXPEDITE THE AWARD OF A CONTRACT UNDER THE INVITATION IN QUESTION, HE CONTACTED THE PREAWARD MONITOR BY TELEPHONE ON APRIL 19, 1968, AND REQUESTED INFORMATION AS TO THE RECOMMENDATION TO BE MADE ON THE PREAWARD SURVEY OF YOUR FIRM. THE CONTRACTING OFFICER STATES THAT HE WAS ADVISED BY THE PREAWARD MONITOR THAT HIS OFFICE WAS RECOMMENDING THAT NO AWARD BE MADE TO YOUR FIRM AND THAT SUCH RECOMMENDATION WAS BASED ON AN INVESTIGATION WHICH DISCLOSED THAT YOUR FIRM HAD BEEN FOUND TO BE UNSATISFACTORY AS TO TECHNICAL CAPABILITY, PRODUCTION CAPACITY, PLANT FACILITIES AND EQUIPMENT, LABOR RESOURCES AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. IT ALSO WAS STATED IN THE REPORT THAT AT THE TIME THE RECOMMENDATION OF THE SURVEY TEAM WAS GIVEN TO THE CONTRACTING OFFICER, NOTHING WAS SAID BY THE PREAWARD MONITOR WHICH, IN ANY WAY, INDICATED THAT THE RECOMMENDATION OF NO AWARD WAS TENTATIVE OR THAT THE DATA UPON WHICH THE INFORMATION WAS BASED WAS INCOMPLETE. WHILE THE RECORD DOES INDICATE THAT THE SURVEY REPORT ON THE FACILITIES OF YOUR FIRM WAS FORMALLY SIGNED ON APRIL 22, 1968, OR AFTER THE DATE OF THE AWARD TO THE NEXT LOWEST BIDDER, MARTIN LANE CO., INC., IT ALSO INDICATES THAT ON APRIL 19, 1968, THE DATE ON WHICH A CONTRACT WAS AWARDED TO MARTIN LANE CO., C., THE CONTRACTING OFFICER HAD SUFFICIENT INFORMATION CONCERNING THE CAPABILITIES OF YOUR FIRM UPON WHICH A DETERMINATION OF NONRESPONSIBILITY COULD BE BASED. ON A SHEET, WHICH WAS ATTACHED TO THE MEMORANDUM WHICH YOU HAD SUBMITTED TO THE CONTRACTING OFFICER, YOU GAVE A CHRONOLOGY OF EVENTS IN AN ATTEMPT TO DEMONSTRATE THAT THE SURVEY OF THE FACILITIES OF YOUR FIRM WAS INCOMPLETE. THE PROCURING ACTIVITY HAS SUBMITTED TO OUR OFFICE ITS OWN CHRONOLOGY OF EVENTS WHICH DIFFERS FROM YOUR VERSION. WHERE, AS HERE, THERE IS A CONFLICT BETWEEN THE CONTENTIONS OF AN UNSUCCESSFUL BIDDER AND THE DOCUMENTED REPORT OF THE PROCUREMENT OFFICE, IT IS THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE LATTER IN THE ABSENCE OF EVIDENCE CLEARLY REQUIRING A CONTRARY CONCLUSION. 37 COMP. GEN. 568; 41 ID. 266, 269. NO SUCH EVIDENCE HAS BEEN PRESENTED BY YOU WHICH COULD BE REGARDED AS REFUTING THE ADMINISTRATIVE STATEMENTS OF EVENTS LEADING UP TO THE DETERMINATION OF NONRESPONSIBILITY.

THE SECOND GROUND OF YOUR PROTEST IS THAT A PROPER EVALUATION OF THE FACILITIES OF YOUR FIRM WOULD HAVE SHOWN YOUR COMPANY'S ABILITY TO COMPLETE THE CONTRACT ON WHICH YOUR FIRM WAS THE LOW BIDDER. AS STATED ABOVE, THE SURVEY REPORT INDICATED THAT YOUR FIRM LACKED THE TECHNICAL ABILITY, PRODUCTION CAPACITY, PLANT FACILITIES AND EQUIPMENT, LABOR RESOURCES AND ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. IN THIS CONNECTION, THE RECORD DOES CONTAIN THE FINDINGS OF A GOVERNMENT QUALITY CONTROL SPECIALIST WHICH SHOW THAT YOUR FIRM MAY HAVE A POTENTIAL FOR MANUFACTURING ACCEPTABLE ARMOR VESTS, PROVIDED YOUR COMPANY HAS SUFFICIENT TIME, PERSONNEL, EQUIPMENT AND ENGINEERING ASSISTANCE TO LEARN A NEW ART. THE GOVERNMENT QUALITY CONTROL SPECIALIST RECOMMENDED THAT YOUR COMPANY NOT BE AWARDED THE CONTRACT IN QUESTION BECAUSE THERE EXISTED A GREAT PROBABILITY OF YOUR FIRM NOT MAKING TIMELY DELIVERIES OF THE ARMORED VEST; HOWEVER, HE DID RECOMMEND THAT YOUR FIRM BE CONSIDERED FOR AN AWARD AT A FUTURE DATE WHEN MORE LEAD TIME WOULD BE ALLOWED IN AN INVITATION FOR BIDS.

THE THIRD BASIS FOR YOUR PROTEST IS THAT THERE EXISTED NO URGENCY WHICH REQUIRED THE MAKING OF AN AWARD TO THE NEXT LOWEST BIDDER PRIOR TO THE FORMAL COMPLETION OF THE SURVEY OF THE PLANT AND FACILITIES OF YOUR FIRM. YOU POINT OUT THAT 16 DAYS ELAPSED BETWEEN THE BID OPENING DATE (APRIL 1, 1968) AND THE COMMENCEMENT OF THE ACTUAL PHYSICAL SURVEY (APRIL 17, 1968) OF THE PLANT AND FACILITIES OF YOUR FIRM. IN THAT CONNECTION, IT IS REPORTED THAT ON APRIL 9, 1968, THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), ROCHESTER, WAS REQUESTED TO SURVEY THE FACILITIES OF YOUR FIRM; THAT THE REASON FOR THE DELAY WAS BECAUSE IT WAS FIRST NECESSARY FOR THE CONTRACTING OFFICER TO OBTAIN DETAILED INTELLIGENCE ON YOUR PLANT AND ON THE PROTECTIVE VEST FROM HIS TECHNICAL STAFF; AND THAT IT WAS NOT UNTIL APRIL 8, 1968, THAT THE CONTRACTING OFFICER'S TECHNICAL STAFF FURNISHED HIM WITH THE REQUESTED INFORMATION. THE PRESENT RECORD DOES NOT INDICATE ANY UNUSUAL DELAY ON THE PART OF THE CONTRACTING OFFICER IN REQUESTING A PREAWARD SURVEY OF THE FACILITIES OF YOUR FIRM. THE RECORD INDICATES THAT THE ARMOR BODY FRAGMENTATION PROTECTIVE VEST IS A LIFE AND LIMB ITEM AND A COMBAT-ESSENTIAL ITEM. ALSO INDICATES THAT THERE WERE MANY BACK ORDERS FOR THE PROTECTIVE VESTS AND THAT THE CONTRACTING OFFICE URGED CONTRACTORS POSSESSING EXISTING CONTRACTS TO ACCELERATE THEIR DELIVERIES BUT WITHOUT SUCCESS. IN VIEW OF THE URGENT NEED FOR THE PROCUREMENT AND THE FACT THAT THE PREAWARD MONITOR HAD UNQUALIFIEDLY STATED TO THE CONTRACTING OFFICER THAT THE SURVEY TEAM HAD RECOMMENDED THAT NO AWARD BE MADE TO YOUR FIRM, WE SEE NO BASIS FOR QUESTIONING THE ACTION OF THE CONTRACTING OFFICER IN MAKING AN AWARD TO THE NEXT LOWEST BIDDER PRIOR TO THE RECEIPT OF THE FORMAL REPORT OF THE SURVEY TEAM ON THE CAPABILITIES OF YOUR FIRM.

UNDER 10 U.S.C. 2305 (C) CONTRACTS MAY BE AWARDED UNDER ADVERTISED PROCUREMENTS ONLY TO RESPONSIBLE AND RESPONSIVE BIDDERS. CONSISTENT WITH THAT STATUTORY LIMITATION, ASPR 1-904.1 PRECLUDES AWARDS OF THIS KIND UNLESS THE CONTRACTING OFFICER FIRST MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE UNDER THE CRITERIA SET OUT IN ASPR 1-903. 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.' THE DETERMINATION OF NONRESPONSIBILITY BY THE CONTRACTING OFFICER WAS BASED, IN PART, UPON THE SURVEY TEAM'S REPORT THAT YOUR FIRM WOULD BE UNABLE TO COMPLY WITH THE REQUIRED DELIVERY SCHEDULE.

WE HAVE CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO DETERMINE THE RESPONSIBILITY OF A BIDDER (37 COMP. GEN. 430; 38 ID. 248; 39 ID. 468; 43 ID. 228), AND THAT SUCH DETERMINATION WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 39 COMP. GEN. 705; 43 ID. 228. WE FIND NO BASIS, ON THE RECORD BEFORE US, TO QUESTION THE CONTRACTING OFFICER'S DETERMINATION IN THIS CASE.