B-141533, FEB. 18, 1960

B-141533: Feb 18, 1960

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WAS TURNED DOWN BY THE U.S. SUCH DETERMINATION WAS RECOMMENDED BY THE U.S. TWO OF SUCH CONTRACTS WERE NOT DUE FOR DELIVERY. EIGHT WERE INEXCUSABLY DELINQUENT OF WHICH FOUR HAD BEEN TERMINATED FOR DEFAULT. WHICH WAS DENIED. YOU ALLEGE THAT IT WOULD HAVE BEEN UNNECESSARY TO APPLY TO SBA FOR A CERTIFICATE OF COMPETENCY IF THE CONTRACTING OFFICER HAD NOT TAKEN UNWARRANTED DEFAULT ACTION ON THE RECENT CONTRACTS. APPEALS ARE CURRENTLY DOCKETED BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS ON THE DEFAULTED CONTRACTS AS ASBCA NOS. 6016. CONTRACTS ISSUED PURSUANT TO FORMAL ADVERTISING ARE REQUIRED TO BE AWARDED TO THE "RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES.

B-141533, FEB. 18, 1960

TO CENTURY TOOL COMPANY CONTRACT DIVISION:

WE REFER TO YOUR TELEGRAM OF DECEMBER 18, 1959, AND SUBSEQUENT CORRESPONDENCE, WITH ENCLOSURES, PROTESTING AN AWARD TO ANY OTHER HIGHER BIDDER UNDER INVITATION FOR BIDS NO. SC-36-039-60-1508-03, ISSUED BY THE U.S. ARMY SIGNAL SUPPLY AGENCY.

THE RECORD BEFORE US INDICATES THAT A BID SUBMITTED BY CENTURY TOOL COMPANY IN RESPONSE TO AN INVITATION FOR TOOL EQUIPMENT, TM-25/GF, WAS TURNED DOWN BY THE U.S. ARMY SIGNAL SUPPLY AGENCY ON THE BASIS THAT THE FIRM HAS A PATTERN OF POOR PERFORMANCE. SUCH DETERMINATION WAS RECOMMENDED BY THE U.S. ARMY SIGNAL SUPPLY AGENCY CONTRACTOR EVALUATION BOARD WHICH REPORTED THAT A TOTAL OF ELEVEN OPEN OR VERY RECENTLY COMPLETED CONTRACTS BETWEEN CENTURY TOOL COMPANY AND THE SIGNAL SUPPLY AGENCY HAD BEEN REVIEWED TO DETERMINE A PERFORMANCE PATTERN. TWO OF SUCH CONTRACTS WERE NOT DUE FOR DELIVERY. OF THE NINE REMAINING CONTRACTS, EIGHT WERE INEXCUSABLY DELINQUENT OF WHICH FOUR HAD BEEN TERMINATED FOR DEFAULT. IN THE CASE OF THE PROTECTED PROCUREMENT, CENTURY TOOL COMPANY APPLIED TO THE SMALL BUSINESS ADMINISTRATION FOR A CERTIFICATE OF COMPETENCY, WHICH WAS DENIED. NO INFORMATION HAS BEEN RECEIVED BY THIS OFFICE OF THE ACTION TAKEN BY SBA ON A REQUEST FOR RECONSIDERATION BY THE CONTRACTOR OF THE DENIAL OF THE CERTIFICATE.

YOU ALLEGE THAT IT WOULD HAVE BEEN UNNECESSARY TO APPLY TO SBA FOR A CERTIFICATE OF COMPETENCY IF THE CONTRACTING OFFICER HAD NOT TAKEN UNWARRANTED DEFAULT ACTION ON THE RECENT CONTRACTS. APPEALS ARE CURRENTLY DOCKETED BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS ON THE DEFAULTED CONTRACTS AS ASBCA NOS. 6016, 6017, 6018, AND 6057, RESPECTIVELY.

CONTRACTS ISSUED PURSUANT TO FORMAL ADVERTISING ARE REQUIRED TO BE AWARDED TO THE "RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED. * * *" 10 U.S.C. 2305 (C). A RESPONSIBLE PROSPECTIVE CONTRACTOR UNDER ASPR 1-903 IS ONE WHO MUST, AMONG OTHER FACTORS:

"/III) BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE, TAKING INTO CONSIDERATION ALL EXISTING BUSINESS COMMITMENTS, COMMERCIAL AS WELL AS GOVERNMENTAL * * *;

"/IV) HAVE A SATISFACTORY RECORD OF PERFORMANCE (CONTRACTORS WHO ARE SERIOUSLY DELINQUENT IN CURRENT CONTRACT PERFORMANCE, WHEN THE NUMBER OF CONTRACTS AND THE EXTENT OF DELINQUENCIES OF EACH ARE CONSIDERED, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR CIRCUMSTANCES PROPERLY BEYOND THE CONTROL OF THE CONTRACTOR, BE PRESUMED TO BE UNABLE TO FULFILL THIS REQUIREMENT (IV) "

UNDER THE PROVISIONS OF ASPR 1-705.6, QUESTIONS CONCERNING THE CAPACITY OR CREDIT OF A SMALL BUSINESS CONCERN TO PERFORM A SPECIFIC GOVERNMENT CONTRACT ARE FOR SUBMISSION TO THE SBA, EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES, BEFORE AN OTHERWISE ACCEPTABLE BID BY SUCH FIRM MAY BE REJECTED. HOWEVER, WHEN, AS IN THE PRESENT SITUATION, THE MATTER HAS BEEN CONSIDERED BY THE SBA AND IT HAS DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY, IT IS THEN WITHIN THE AUTHORITY OF THE CONTRACTING OFFICER TO MAKE SUCH DETERMINATIONS. B-139874, AUGUST 19, 1959, COPY ENCLOSED.

AN ADMINISTRATIVE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS CONCLUSIVE UNLESS IT IS SHOWN THAT SUCH DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE DEMONSTRATING THE BIDDER'S LACK OF RESPONSIBILITY. 38 COMP. GEN. 778. UPON REVIEWING THE RECORD OF YOUR PERFORMANCE UNDER RECENT CONTRACTS WE BELIEVE A CONTRACTING OFFICER WOULD BE JUSTIFIED IN DETERMINING THAT YOU WERE NOT A RESPONSIBLE BIDDER IN ACCORDANCE WITH THE ASPR REGULATIONS QUOTED ABOVE. IT MAY BE THAT YOU WILL BE ABLE SATISFACTORILY TO EXPLAIN YOUR DEFAULTS DURING THE CONSIDERATION OF YOUR APPEALS BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS. HOWEVER, THE STATUTES REQUIRING ADVERTISING FOR BIDS AND AWARD BASED UPON THE MOST ADVANTAGEOUS BID SUBMITTED BY A RESPONSIBLE BIDDER WERE ENACTED FOR THE BENEFIT AND PROTECTION OF THE GOVERNMENT, AND CONFER NO ENFORCEABLE RIGHTS UPON BIDDERS. SEE B-141138, DECEMBER 23, 1959 (39 COMP. GEN. - -, COPY ENCLOSED. THE PROCURING AGENCIES MUST PROVIDE FOR THE GOVERNMENT'S PROCUREMENT NEEDS AS THEY ARISE AND MAKE AWARDS TO BIDDERS ON THE BASIS OF THE INFORMATION AVAILABLE. IT MIGHT WELL BE AN IMPRUDENT COURSE OF ACTION FOR THE GOVERNMENT TO HOLD UP AWARD OF A PUBLIC CONTRACT PENDING DETERMINATION OF APPEALS BROUGHT BEFORE THE BOARD. SUCH PRACTICE COULD BE DETRIMENTAL TO THE INTEREST OF THE GOVERNMENT IN PROVIDING FOR ITS NEEDS PROMPTLY, AND WOULD ADVERSELY AFFECT THE INTERESTS OF OTHER BIDDERS WHO EXPECT EXPEDITIOUS CONSIDERATION OF THEIR BIDS.

ACCORDINGLY, SINCE THE ADMINISTRATIVE OFFICE HAS DETERMINED THAT YOU ARE NOT A RESPONSIBLE BIDDER ON THE PROPOSED AWARD, AND THE SMALL BUSINESS ADMINISTRATION HAS NOT ISSUED YOU A CERTIFICATE OF COMPETENCY, WE FIND NO BASIS ON THE PRESENT RECORD UPON WHICH WE COULD OBJECT TO THE REJECTION OF YOUR BID.