BIDDERS Continued
Qualifications Continued
Administrative determinations-Continued
Subsequent to certificate of competency-Continued
mination that bidder was eligible for award but for factors as to which
COC would be conclusive; however, determination of nonresponsibility
outside scope of COC must be supported by substantial evidence of
lack of integrity, tenacity, or perseverance_
Determination under par. 1-904, Armed Services Procurement Reg., of
nonresponsibility of small business concern, low bidder under invitation,
on basis of record of substantial delivery delinquencies without referral
to Small Business Admin. under 15 U.S.C. 637 (b) (7) for certification of
concern's capacity and credit was unjustified absent finding that de-
linquency arose out of something other than capacity and credit and,
therefore, was not within scope of SBA certification and, although cancel-
lation of award is not required, future awards after rejection of small
business bid for nonresponsibility without submitting matter to Small
Business Admin. will be regarded as invalid unless award is required
without delay, or finding of nonresponsibility is based on substantial
evidence that situation resulting from factors not included in capacity
or credit existed to justify finding....
Experience
Specialized, etc.
Although contract may be limited to bidders meeting specified qualitative
and quantitative experience requirements in specialized field where
bidding conditions so provide and determination has been made that
interests of Govt. would be served, cancellation of Veterans Admin.
award for mortuary services because contractor had only 31 months
of successful operating service under State health and vehicle laws
therefore not meeting "not less than 3-years" service limitation of invita-
tion was not required, contractor having successfully performed prior
year contract was considered qualified and responsible bidder except
for 3-year service limitation requirement, and strict construction of
service requirement being unreasonable and restrictive of competition,
canceled award should be reinstated__.
Failure to submit information before bid opening
Failure of low bidder for construction project to furnish list of subcon-
tractors as required by invitation to prevent "bid shopping" is failure
to meet material requirement of invitation relating to responsiveness
of bid rather than to responsibility of bidder and, therefore, rejection
of bid is proper----
Foreign governmental authorization compliance
Under invitation to bid on purchase of scrap to be generated from de
militarization of surplus ammunition located in France, bidders, pur-
chasers, and subcontractors to have governmental approval to perform
operation of demilitarization, submission after bid opening by high
bidder who did not qualify of name of acceptable subcontractor does not
preclude award to bidder, required qualification affecting ability to
perform, responsibility of bidder is involved and procurement rules that
matters concerning bidder's responsibility, which do not affect price,
quantity, and quality of procurement and which are not prejudicial to
Foreign governmental authorization compliance-Continued
other bidders may be furnished after bid opening applying equally to
surplus sales, there is no prohibition against furnishing necessary quali-
fications after bid opening; therefore, upon execution of contracts for de-
militarization work with qualified concerns award may be made to
high bidder.
Low bid under small business set-aside submitted by firm which had
substantially performed many contracts within time and manner re-
quired, but had been dilatory in meeting relatively minor requirements
of contract, which although not sufficiently significant to warrant ter-
mination for default had cumulative effect of unduly increasing Govt.'s
burden of administration, may be rejected notwithstanding issuance of
certificate of competency under sec. 8(b) (7), Small Business Act, 15
U.S.C. 637 (b) (7), which although conclusive on contracting officer pursu-
ant to par. 1-7056 (a), Armed Services Procurement Reg., as to capacity
and credit of bidder, elements of ability to perform, is not conclusive as
to elements of willingness to perform-perseverance, tenacity, or in-
tegrity and contracting officer finding firm on basis of substantial evi-
dence deficient in performance not as result of lacking capacity, but due
to consistent failure to apply tenacity and perseverance to do acceptable
job may reject low bid__.
Although termination of contract for default following delay in per-
formance and failure to complete work on schedule attributable to labor
difficulties, notwithstanding pending appeal from termination, was
proper for consideration in determining responsibility of bidder on simi-
lar projects in other areas, Govt. being entitled to rely upon validity of
termination unless and until contractor shows it to be erroneous and ob-
tains reversal by higher authority, thereby avoiding imposing unreason-
able burden upon contracting officers, termination for default does not
constitute sufficient basis for declaring contractor nonresponsible bidder
on subsequent contracts unless circumstances and results similar to labor
difficulties experienced under prior contracts can reasonably be expected
to occur in performance of future contracts‒‒‒‒
Prior unsatisfactory performance
Determination by contracting officer under criteria established in par.
1-903, Armed Services Procurement Reg., that low bidder with record
of unsatisfactory performance on numerous Govt. contracts does not
qualify as responsible bidder under par. 1–903.1 (iii) having been affirmed
by refusal of Small Business Administration to issue Certificate of
Competency is valid determination for particular procurement; however,
in event contractor is eligible for subsequent procurement award,
determination of responsibility would have to be made on basis of
qualification and record of performance at that time----
Fact that contractor who did not meet monthly delivery requirements
met final delivery date prescribed by contract does not affect record of
poor performance under contract, interim delivery schedules being as
significant as final delivery requirement and, therefore, failure to comply
with interim schedules is not excused or mitigated by conformity with
final delivery date___.
BIDDERS Continued
Qualifications-Continued
Time for submission of evidence
Requirement in invitation that bidder furnish with his bid a list of
equipment to be used in performing contract which information does
not limit or reduce obligation to perform contract is information which
goes to responsibility of bidder rather than to responsiveness of bid and,
therefore, such information may be submitted at any time before deter-
mination as to that factor is made, even though invitation requires
that equipment data be submitted with bid and specifies that failure to
comply will result in rejection of bid..
Rule that data which goes to responsibility of bidder to perform rather
than to responsiveness of bid may be submitted at any time before deter-
mination of responsibility is made applies with even greater weight to
data to be furnished by lowest bidder after opening since only in unusual
circumstances, if at all, could such data affect responsiveness of bid_
Right to award
Nonresponsibility determinations
To deny bidder, who had been determined to be nonresponsible for award
of contract based on conviction of criminal offense that was not appealed
but who had not been notified that debarment action was to be invoked,
consideration in subsequent procurements based on prior administrative
determination of nonresponsibility would result in authorizing procuring
agency to continue indefinitely to disregard low bids by successive deter-
minations of nonresponsibility without affording bidder opportunity to
be heard, and, therefore, in absence of other evidence of lack of
responsibility, low bidder must be considered responsible bidder_-_-_-
Small business concerns
Awards. (See Contracts, awards, small business concerns)
![[blocks in formation]](https://books.google.com.my/books/content?id=d6YRk8z1eaYC&output=html_text&pg=PA850&img=1&zoom=3&hl=en&q=procurement&cds=1&sig=ACfU3U25NeOmxsb6-mzX1lxu7fcUoAa6ow&edge=0&edge=stretch&ci=111,942,305,90)
Balance of payments program restrictions
Invitation under second phase of two-step procurement, subject to Buy
American Act and Balance of Payments Program, which did not clearly
designate items to be procured under Program, nor prescribe U.S.
Product Certificate or clause required by departmental directive imple-
menting Program, is nevertheless not invalid invitation precluding
award of binding contract, directive not establishing policies and pro-
cedures for procurement policies prescribed by law it may be waived,
and request for inclusion of dollar amounts of direct and indirect
foreign expenditures to evaluate bids for compliance with "Gold Flow"
policy not having resulted in computation of bid prices on different bases,
both low and second low bidder offering domestic equipment and labor,
all bids need not be discarded, absent an administrative determination
of unreasonable bid prices, or possibility lower prices may be bid for
furnishing foreign components and labor-----
Foreign product determination
In determining if foreign procured bulk chlorinated lime packed in
20-pound pails manufactured in U.S. offered by low bidder under invi-
tation incorporating Buy American clause prescribed by par. 6-104.5,
Armed Services Procurement Regulation, is domestic end product which
Buy American Act-Continued
Foreign product determination-Continued
may be considered for award, labor, administration, and overhead
costs involved in packaging lime not being for consideration, "compo-
nents" directly incorporated in end product are foreign procured lime
and domestically manufactured pail, and pail not representing cost
which is greater than 50 percent of total cost of all components, foreign
cost of lime, ocean freight and duty greatly exceeding cost of domestic
component-pail in which lime is packed-and constituting 50 per-
cent or more of cost, end product offered is foreign product under Buy
American Act, 41 U.S.C. 10a-d----
Competitive system
Award under invitation restricting bids on dredging navigation chan-
nels and harbors to bids based on use of spoil disposal areas at sea desig-
nated by Govt. although proper may have precluded Govt. from possible
savings, even though contract provided for approval of other disposal
areas proposed by contractor after award, and benefits from such use
not having been reflected in competitive bid prices to provide broader
competition in future, bidders should be permitted to bid on use of alter-
nate disposal areas known only to them, and to perform by generally
cheaper hydraulic method of dredging, and should no other than Govt.
provided area be available free of cost, actual net cost to Govt. should
be considered, whether spoil disposal involves receipt of payments to
reduce net cost, or payment by Govt. or contractor to effect larger
reduction of gross cost--.
Equal bidding basis for all bidders
Invitation providing that bidders explain any noncompliance with
advertised specifications, where both low and second low bidder devi-
ated from specifications, but award was made to second low bidder on
basis that nonresponsiveness of bid was unimportant, did not permit
full and free competition, and award violating 41 U.S.C. 253 should be
canceled and procurement readvertised on basis of Govt.'s minimum
needs, invitation not being sufficiently definite to allow preparation and
evaluation of bids on common basis as required by 41 U.S.C. 253, and
procedure in effect permitting bidders to draft specifications for selec-
tion of contracting officer without knowledge of how points of non-
compliance would be evaluated, or whether particular deviations would
result in bid rejection, neither bidder was aware of relative importance
of specifications, and readvertising procurement will permit competition
on equal basis____
Invitation for furnishing printed forms in various sizes, parts, and
quantities containing pricing schedule and evaluation formula which
permitted bidders with knowledge of prior orders, or based on specula-
tion, to bid low on those items Govt. was unlikely to order and high on
items frequently ordered is invitation that does not give bidders equal
opportunity to compete and would result in speculative rather than in
fair and reasonable prices; therefore, invitation should be canceled and
bids rejected---.
Competitive system-Continued
Prices reduced to obtain award
Federal supply contract v. invitation for bids
Where item was not required to be purchased from Federal Supply Cata-
log, cancellation of Air Force Invitation for Bids (IFB) to procure
item for lesser amount from low bidder under IFB who to meet Federal
Supply Service (FSS) contract price competition of second low bidder
under IFB secured one of multiple FSS contracts issued for item, nego-
tiated under Federal Property and Administrative Services Act, 40
U.S.C. 471, was not in best interests of Govt., and is not procurement
that contributes to integrity of competitive bidding, option to make
award pursuant to subsequent FSS contract, or price reduction, nulli-
fying basic tenet that once bids are opened and disclosed, higher bidder
will not have second opportunity to underbid low bidder; however,
award will not be disturbed, second low bidder under IFB having re-
duced his FSS contract price after disclosure of IFB bid prices in-
directly had same competitive advantage as though permitted to submit
second bid under IFB__.
Two-step, etc., procurements
First stage determinations
Award under second part of two-step procurement to bidder who,
although not issued invitation to bid, technical proposal under first step
of procurement having been considered unsatisfactory and not suscep-
tible of being made acceptable, and par. 2-503.2, Armed Services
Procurement Reg., requiring acceptability of technical proposal for eligi-
bility to bid, upon informal advice of unacceptability of first-step propo-
sal corrected deficiences within 3 days and submitted acceptable revised
proposal prior to opening of bids would be valid award, even though
ordinarily revised proposals received after date set for submission are
not considered, speed with which bidder revised technical proposal
demonstrating ability to have met deadline submission date for revision
of proposals reasonably susceptible of being made acceptable had no-
tice been furnished in accordance with par. 2-503.1(b) (vi) of unaccept-
ability of first-step proposal and basis for determination____.
Use of Government-owned equipment
In evaluation of bids under invitation providing for use of Govt-owned
industrial facilities and special tooling, and requiring successful bidder
to absorb cost of transporting, installing, modifying, and maintaining
equipment, although excluding such costs from bid of concern possess-
ing equipment results in competitive advantage to that concern, Govt.
having paid for equipment is entitled to maximum benefit available;
therefore, 10 U.S.C. 2305(c) requiring that advertised contracts shall
be awarded to that responsible bidder whose bid will be most advan-
tageous to U.S., price and other factors considered prevails over policy
of complete equalization of competitive advantage under par. 13-407
(a) (3), Armed Services Procurement Reg., prescribing elimination of
any competitive advantage for concern possessing Govt. facilities with-
out charge in competing for Govt. business__
|