B-171636, APR 19, 1971

B-171636, APR 19, 1971

BID PROTEST - RESPONSIBILITY V RESPONSIVENESS DECISION DENYING PROTEST AGAINST AWARD OF CONTRACT TO COMPUTRONICS, INC., UNDER AN IFB ISSUED BY THE AVIATION SUPPLY OFFICE FOR SEVERAL QUANTITIES OF RADIO SETS. ALTHOUGH COMPUTRONICS WAS FOUND TO BE NONRESPONSIBLE DUE TO UNFAVORABLE FINDINGS BY THE PRE-AWARD SURVEY TEAM, THE CONTRACTING OFFICER PROPERLY SUBMITTED THE QUESTION TO THE SMALL BUSINESS ADMINISTRATION WHICH FOUND THE FIRM COMPETENT AS TO CAPACITY AND CREDIT AND ISSUED A CERTIFICATE OF COMPETENCY. IT HAS BEEN HELD THAT SUCH A DETERMINATION IS CONCLUSIVE. FURTHER, THE HIGHLY TECHNICAL NATURE OF THE EQUIPMENT DID NOT TRANSFORM THE EXPERIENCE REQUIREMENT OF THE IFB FROM A QUESTION OF RESPONSIBILITY TO A QUESTION OF RESPONSIVENESS. THEREFORE, THE PROTEST IS DENIED.

TO WACHTEL, WIENER & ROSS:

REFERENCE IS MADE TO YOUR LETTERS DATED DECEMBER 31, 1970, AND MARCH 26, 1971, PROTESTING ON BEHALF OF ASC SYSTEMS CORPORATION (ASC), AGAINST THE AWARD OF A CONTRACT TO COMPUTRONICS, INCORPORATED (COMPUTRONICS), UNDER IFB NO. N00383-71-B-0215 ISSUED BY THE AVIATION SUPPLY OFFICE, 700 ROBBINS AVENUE, PHILADELPHIA, PENNSYLVANIA.

THE IFB WAS ISSUED ON SEPTEMBER 17, 1970. IT COVERED VARIOUS STEP LADDER QUANTITIES OF AN/ARC-51A/AX/BX UHF RADIO SETS. THE BIDS WERE OPENED ON OCTOBER 16, 1970, AND THE APPARENT LOW BIDDER WAS COMPUTRONICS.

A PREAWARD SURVEY OF COMPUTRONICS WAS CONDUCTED BY DCASD, MILWAUKEE, WISCONSIN. BASED ON UNSATISFACTORY TECHNICAL CAPABILITY, PRODUCTION CAPABILITY, PLANT FACILITIES AND EQUIPMENT, PURCHASING AND SUBCONTRACTING, QUALITY ASSURANCE CAPABILITY, PERFORMANCE RECORD, AND ABILITY TO MEET REQUIRED SCHEDULE, THE DCASD, MILWAUKEE, RECOMMENDED THAT NO AWARD BE MADE TO COMPUTRONICS.

THE CONTRACTING OFFICER, AFTER TAKING INTO CONSIDERATION THE RECOMMENDATION OF THE SURVEY UNIT AND AFTER EXAMINING THE LATEST CERTIFIED FINANCIAL STATEMENTS OF COMPUTRONICS, CONCLUDED THAT COMPUTRONICS WAS NOT A RESPONSIBLE BIDDER.

SINCE COMPUTRONICS WAS A SMALL BUSINESS CONCERN AND THE QUESTION OF RESPONSIBILITY OF THE LOW BIDDER WAS THE ONLY STUMBLING BLOCK TO AWARDING IT THE CONTRACT, THE CONTRACTING OFFICER PURSUANT TO ASPR 1 705.4 REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR THEIR CONSIDERATION AND RULING ON COMPUTRONICS'"CAPACITY" AND "CREDIT."

AFTER CONSIDERING THE MATTER THOROUGHLY, SBA FOUND COMPUTRONICS COMPETENT AS TO CAPACITY AND CREDIT TO PERFORM THE PROPOSED PROCUREMENT AND ISSUED A CERTIFICATE OF COMPETENCY (COC) ON FEBRUARY 17, 1971. THE CONTRACTING OFFICER WAS SO ADVISED BY SBA.

WE HAVE HELD ON NUMEROUS OCCASIONS THAT THE DETERMINATION OF SBA AS TO THE CAPACITY AND CREDIT OF A SMALL BUSINESS CONCERN, WHICH GOES TO ITS RESPONSIBILITY AS A BIDDER, IS CONCLUSIVE (SEE B-170099, JANUARY 22, 1971). THAT DETERMINATION INCLUDES CONSIDERATION OF EXPERIENCE IF THIS IS A PREREQUISITE TO THE AWARD OF A PROPOSED CONTRACT. 40 COMP. GEN. 106 (1960).

YOU BASE THE ASC SYSTEMS CORPORATION PROTEST ON COMPUTRONICS' LACK OF THE SPECIAL QUALIFICATIONS SET FORTH IN THE IFB AND MORE PARTICULARLY ON A PROVISION OF THE IFB WHICH PLACED ALL BIDDERS ON NOTICE OF THE FOLLOWING:

"NOTICE: IN DETERMINING RESPONSIBILITY OF A BIDDER, THE CONTRACTING OFFICER WILL PLACE PARTICULAR EMPHASIS ON THE FOLLOWING QUALIFICATIONS:

(A) EXPERIENCE IN QUANTITY PRODUCTION UTILIZING QUANTITY PRODUCTION TECHNIQUES OF AIRBORNE UHF COMMUNICATION EQUIPMENT TO MILITARY SPECIFICATIONS; AND

(B) EXPERIENCE IN THE USE OF MINIATURE AND SUBMINIATURE COMPONENTS; AND

(C) EXPERIENCE IN THE DESIGN AND DEVELOPMENT OF AIRBORNE UHF COMMUNICATION."

IT IS YOUR CONTENTION THAT THIS REQUIREMENT OF SPECIALIZED EXPERIENCE PLUS THE NATURE OF THE PRODUCT SUBJECT TO THE SOLICITATION, I.E. HIGHLY TECHNICAL, COMPLICATED, SOPHISTICATED RADIO COMMUNICATIONS EQUIPMENT, HAD THE EFFECT OF TRANSFORMING THE EXPERIENCE REQUIREMENT, WHICH IS BASICALLY A RESPONSIBILITY QUESTION, INTO ESSENTIALLY A RESPONSIVENESS QUESTION AND THUS REMOVED IT FROM THE "CAPACITY" CONSIDERATIONS OF THE SBA. TO SUPPORT YOUR ARGUMENT, YOU INVOKE THE AUTHORITY OF THE HOLDING IN SCANWELL LABORATORIES, INC. V SCHAFFER, ET AL., 424 F. 2D 859 (1970).

IN SCANWELL, THE IFB PROVIDED IN PART AS FOLLOWS:

"TO BE RESPONSIVE TO THIS REQUEST, THE CONTRACTOR SHALL SUBMIT EVIDENCE THAT *** ."

NOTWITHSTANDING THE QUOTED LANGUAGE, THE CONTRACTING ACTIVITY TOOK THE POSITION THAT THE MATTER DEALT ESSENTIALLY WITH RESPONSIBILITY AND THEY HAD NO QUESTION AS TO THE LOW BIDDER'S ABILITY TO SUCCESSFULLY PERFORM THE CONTRACT. IN OUR DECISION, 49 COMP. GEN. 9 (1969), WE CONCLUDED THAT, ALTHOUGH THE PROVISION COULD HAVE BEEN DRAWN MORE ARTFULLY, THE AGENCY INTERPRETATION WAS NOT SO ERRONEOUS AS TO WARRANT ADVERSE ACTION BY OUR OFFICE. THE COURT OF APPEALS' OPINION CITED DEALT ONLY WITH THE RIGHT OF THE PLAINTIFF TO OBTAIN JUDICIAL REVIEW OF HIS GRIEVANCE. THE MERITS OF THE CASE HAVE NOT BEEN DETERMINED JUDICALLY.

IN THE INSTANT CASE, THE QUESTION OF EXPERIENCE WAS INTENDED BY THE IFB AND WAS TREATED THROUGHOUT THE PROCESSING OF THE PROCUREMENT BY THE CONTRACTING OFFICER AS A QUESTION OF RESPONSIBILITY, WHICH GOES TO THE CAPACITY OF A BIDDER TO PERFORM THE CONTRACT. WE DO NOT BELIEVE THAT THE NATURE OF THE EQUIPMENT TRANSFORMED THE EXPERIENCE REQUIREMENT OF THE IFB FROM A QUESTION OF RESPONSIBILITY TO A QUESTION OF RESPONSIVENESS. THE REFERRAL OF THIS QUESTION BY THE CONTRACTING OFFICER TO SBA WAS PROPER AND THE QUESTION WAS WELL WITHIN SBA'S JURISDICTION IN DETERMINING THE "CAPACITY" OF SMALL BUSINESS CONCERNS.

YOUR PROTEST IS THEREFORE DENIED.