B-142905, AUGUST 22, 1960, 40 COMP. GEN. 106

B-142905: Aug 22, 1960

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BIDDERS - EXPERIENCE QUALIFICATIONS - SMALL BUSINESS ADMINISTRATION EXPERIENCE QUALIFICATIONS SPECIFICALLY STATED IN AN INVITATION FOR THE PROCUREMENT OF WATER PURIFICATION EQUIPMENT BY A MILITARY DEPARTMENT ARE MATTERS OF RESPONSIBILITY INCLUDED IN THE DEFINITION OF "CAPACITY" IN SECTION 1-705.6 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION. 1960: REFERENCE IS MADE TO LETTER OF JUNE 21. EACH BIDDER IS REQUIRED TO SUBMIT WITH HIS BID A STATEMENT OF EXPERIENCE IN THE TYPE OF PRODUCTION INVOLVED. IN SUCH DETAIL AS WILL CLEARLY IDENTIFY PRIOR EXPERIENCE. BIDS WILL BE REJECTED IF THE BIDDER FAILS TO QUALIFY AS A MANUFACTURER OF WATER PURIFICATION EQUIPMENT RELATIVELY SIMILAR TO THE ERDLATORS INVOLVED HEREIN.

B-142905, AUGUST 22, 1960, 40 COMP. GEN. 106

BIDDERS - EXPERIENCE QUALIFICATIONS - SMALL BUSINESS ADMINISTRATION EXPERIENCE QUALIFICATIONS SPECIFICALLY STATED IN AN INVITATION FOR THE PROCUREMENT OF WATER PURIFICATION EQUIPMENT BY A MILITARY DEPARTMENT ARE MATTERS OF RESPONSIBILITY INCLUDED IN THE DEFINITION OF "CAPACITY" IN SECTION 1-705.6 (A) OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH REFERS TO THE STATUTORY AUTHORITY OF THE SMALL BUSINESS ADMINISTRATION TO CERTIFY THE COMPETENCY OF SMALL BUSINESS CONCERNS, AND THE INCLUSION IN THE INVITATION OF SPECIFIC EXPERIENCE REQUIREMENTS CANNOT DEFEAT THE STATUTORY AUTHORITY VESTED IN THE SMALL BUSINESS ADMINISTRATION TO MAKE DETERMINATIONS OF THE CAPACITY AND CREDIT OF BIDDERS; THEREFORE, THE DETERMINATION OF THE EXPERIENCE QUALIFICATIONS OF SEVERAL SMALL BUSINESS CONCERNS SUBMITTING BIDS FOR THE WATER PURIFICATION EQUIPMENT MUST BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION.

TO THE SECRETARY OF THE ARMY, AUGUST 22, 1960:

REFERENCE IS MADE TO LETTER OF JUNE 21, 1960, RELATIVE TO THE PROTESTS OF GLENVIEW MACHINE PRODUCTS COMPANY AND A. J. SCHMIDT AND COMPANY AGAINST THE ACTION OF THE DEPARTMENT OF THE ARMY IN MAKING AN AWARD OF A CONTRACT TO MET-1PRO, INC., UNDER INVITATION NO. DA-ENG-11 184-60-CF-462, ISSUED BY THE U.S. ARMY ENGINEERS PROCUREMENT OFFICE, CHICAGO, ILLINOIS, ON FEBRUARY 15, 1960.

THE INVITATION CALLED FOR BIDS ON 225 SETS OF WATER PURIFICATION EQUIPMENT, DIATOMITE FILTER, 1500 GALLONS PER HOUR RATED CAPACITY. NOTE NO. 5, PAGE 10, OF THE INVITATION PROVIDED AS FOLLOWS:

SUCCESSFUL AND TIMELY PRODUCTION OF THE ITEMS CALLED FOR BY THIS INVITATION FOR BIDS REQUIRES EXPERIENCE AND FAMILIARITY IN THE DESIGN AND MANUFACTURE OF WATER PURIFICATION EQUIPMENT OF SIMILAR NATURE. HEALTH AND SANITATION CONSIDERATIONS PRECLUDE THE ACCEPTANCE OF EQUIPMENT PRODUCED BY OTHER THAN RECOGNIZED SOURCES OF SUPPLY IN THIS FIELD. EACH BIDDER IS REQUIRED TO SUBMIT WITH HIS BID A STATEMENT OF EXPERIENCE IN THE TYPE OF PRODUCTION INVOLVED, IN SUCH DETAIL AS WILL CLEARLY IDENTIFY PRIOR EXPERIENCE, CURRENT FACILITIES AND PERSONNEL STAFFING SUFFICIENT TO QUALIFY AS A WATER PURIFICATION EQUIPMENT MANUFACTURER OF PRODUCTS RELATIVELY SIMILAR TO THE ERDLATOR INVOLVED HEREIN. BIDS WILL BE REJECTED IF THE BIDDER FAILS TO QUALIFY AS A MANUFACTURER OF WATER PURIFICATION EQUIPMENT RELATIVELY SIMILAR TO THE ERDLATORS INVOLVED HEREIN. A CAREFUL REVIEW (PREAWARD SURVEY) OF QUALIFICATIONS IN THE PLANT OF THE APPARENT LOW, RESPONSIVE BIDDER WILL BE MADE TO AUGMENT INFORMATION PROVIDED WITH THE BID. IF THE PREAWARD SURVEY FAILS TO PROVIDE THE CONTRACTING OFFICER WITH A BASIS FOR A POSITIVE FINDING AS TO ACCEPTABLE BACKGROUND, EXPERIENCE, CURRENT PERSONNEL AND FACILITIES, THE BIDDER WILL THEN BE FOUND NON RESPONSIBLE AND HIS BID REJECTED.

SEVEN BIDS WERE RECEIVED AND OPENED ON MARCH 16, 1960. THE FOLLOWING IS A TABULATION OF SUCH BIDS FOR EVALUATION, AS INDICATED BY THE ABSTRACT OF BIDS:

CHART

UNIT PRICE FOR UNIT PRICE

ITEM 1--- FOR ITEM

QUANTITY OF A---

224 EACH SETS, QUANTITY OF

FOB CARRIER'S 1 EACH FOB

EQUIP, RAIL OR RECEIVING

OTHER THAN RAIL DOCK,

AT GOVT'S COLUMBUS

OPTION, LOADED,GENERAL

BLOCKED AND DEPOT

BRACED COLUMBUS,

BIDDER OHIO GLENVIEW MACHINE PRODUCTS CO ---------- $9,403.70 $9,577.30 A. J. SCHMIDT CO --- -------------------- 9,876.00 10,800.00 GANARY BROS., INC ----------- --------- 9,990.00 11,150.00 MET-1PRO., INC -------------- ---- ------ 10,228.00 10,485.00 DAVEY COMPRESSOR CO ---------------- --- 10,331.00 10,500.00 AMERICAN MACHINERY CORP., SUBSIDIARY

OF WALLACE AND TIERNAN, INC --------- 10,446.00 10,650.00 COCHRANE CORP - -------------------------- 12,690.00 13,190.00

ON MARCH 18, 1960, A PREAWARD SURVEY WAS REQUESTED ON THE LOWEST BIDDER, GLENVIEW MACHINE PRODUCTS COMPANY, TO DETERMINE WHETHER OR NOT ITS BID WAS ACCEPTABLE IN THE LIGHT OF THE EXPERIENCE REQUIREMENT OF NOTE NO. 5 OF THE INVITATION QUOTED ABOVE. THE REPORT OF SURVEY, ON APRIL 1, 1960, REFLECTED THAT GLENVIEW HAD NOT PREVIOUSLY DESIGNED OR MANUFACTURED WATER PURIFICATION EQUIPMENT OF ANY TYPE; THAT ITS EXPERIENCE CONSISTED OF FABRICATING AND ASSEMBLING NYLON STOCKING DYING UNITS FOR THE TEXTILE INDUSTRY, AND FABRICATING OTHER TEXTILE MACHINERY AND A NAVIGATIONAL TRAINING DEVICE, NONE OF WHICH REQUIRED KNOWLEDGE OF CHEMICAL SEPARATION OR PURIFYING DEVICES INVOLVED IN WATER PURIFICATION.

THE SMALL BUSINESS ADMINISTRATION, CHICAGO OFFICE, WAS THEN ASKED BY THE PROCURING OFFICE TO DETERMINE AND ADVISE WHETHER A CERTIFICATE OF COMPETENCY WOULD BE ISSUED TO GLENVIEW. THE SMALL BUSINESS ADMINISTRATION REFERRED THE MATTER BACK TO THE AGENCY, REQUESTING THAT IT BE ESTABLISHED WHETHER THE BIDDER MET THE REQUIREMENTS OF NOTE NO. 5 OF THE INVITATION PRIOR TO REFERRAL FOR A CERTIFICATE OF COMPETENCY AS TO "CAPACITY AND CREDIT.' SUBSEQUENTLY, IT WAS DETERMINED BY THE CORPS OF ENGINEERS THAT IT WAS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO DETERMINE THE RESPONSIVENESS OF A BIDDER TO THE EXPERIENCE REQUIREMENT OF NOTE NO. 5 OF THE INVITATION. ACCORDINGLY, SMALL BUSINESS ADMINISTRATION WAS REQUESTED TO DISREGARD THE REFERRAL.

AS WITH GLENVIEW, IT WAS DETERMINED ON THE BASIS OF A PREAWARD SURVEY THAT THE SECOND LOW BIDDER AS TO PRICE, A. J. SCHMIDT AND COMPANY, LACKED THE NECESSARY EXPERIENCE TO QUALIFY UNDER NOTE NO. 5 OF THE INVITATION. ITS PREAWARD SURVEY DISCLOSED THAT THE BIDDER HAD BEEN A SUBCONTRACTOR PERFORMING STRAIGHT SHEET METAL FABRICATION ON A PRIOR PROCUREMENT OF WATER PURIFICATION EQUIPMENT AND THAT THE EXPERIENCE OF ITS PERSONNEL COULD NOT BE CONSIDERED AS QUALIFYING FACTORS.

THE THIRD LOW BIDDER, WHICH APPEARS TO BE PRIMARILY A MACHINE SHOP, IS REPORTED TO HAVE DECLINED TO FURNISH FULL INFORMATION FOR A PREAWARD SURVEY AND HAS OTHERWISE NOT SHOWN ANY EXPERIENCE IN WATER PURIFICATION.

THE CONTRACTING OFFICER CONCLUDED THAT MET-1PRO, INC., THE FOURTH LOW BIDDER, HAD PRIOR EXPERIENCE AND FAMILIARITY IN THE DESIGN AND MANUFACTURE OF WATER PURIFICATION EQUIPMENT OF SIMILAR NATURE SUFFICIENT TO QUALIFY AS WATER PURIFICATION EQUIPMENT MANUFACTURERS OF PRODUCTS RELATIVELY SIMILAR TO THE "1ERDLATOR" INVOLVED IN THE AWARD.

THE MATTER WAS THEN TRANSMITTED TO THE OFFICE OF CHIEF OF ENGINEERS. MAY 6, 1960, THE PROCUREMENT CONTRACT REVIEW BOARD, OFFICE OF THE CHIEF OF ENGINEERS, CONSIDERED THE EVIDENCE AND DETERMINED THAT THE INCLUSION OF THE EXPERIENCE CLAUSE IN THE INVITATION WAS PROPER IN THE PROCUREMENT OF THE EQUIPMENT INVOLVED ON THE BASIS THAT HEALTH AND SANITATION CONSIDERATIONS PRECLUDED ACCEPTANCE OF EQUIPMENT PRODUCED BY OTHER THAN RECOGNIZED SOURCES OF SUPPLY IN THE FIELD OF DESIGN AND MANUFACTURE OF WATER PURIFICATION EQUIPMENT. THE BOARD CONCLUDED THAT THE FIRST THREE LOW BIDS WERE NONRESPONSIVE TO THE INVITATION FOR THE REASON THAT THEY DID NOT QUALIFY UNDER THE EXPERIENCE CLAUSE SPECIFICALLY SET FORTH THEREIN, AND THAT MET-1PRO, INC., THE FOURTH LOW BIDDER, MET THE REQUIREMENTS OF THE EXPERIENCE CLAUSE. ON MAY 11, 1960, AWARD OF CONTRACT NO. DA-11-184 ENG-18076, WAS MADE TO MET-1PRO, INC.

PROTESTS AGAINST THE AWARD TO MET-1PRO, INC., WERE RECEIVED HERE FROM GLENVIEW MACHINE PRODUCTS COMPANY ON MAY 16, 1960, AND FROM A. J. SCHMIDT AND COMPANY ON MAY 17, 1960. THEY OFFER INFORMATION TO THE EFFECT THAT WATER PURIFYING UNITS OF THE TYPE REQUIRED UNDER THE SUBJECT INVITATION HAVE BEEN PURCHASED BY THE DEPARTMENT OF THE ARMY FOR SEVERAL YEARS AND THAT, EXCEPT FOR ONE SMALL CONTRACT, MET-1PRO, INC., HAS RECEIVED ALL AWARDS. THE PROTESTING BIDDERS STATE THAT THEY PRESENTLY HAVE PERSONNEL WHO ARE CAPABLE OF PERFORMING THE REQUIRED WORK AND HAVE HAD ADEQUATE EXPERIENCE IN THE REQUIRED FIELD.

IN THE REPORT FORWARDED TO THIS OFFICE, THERE IS A STATEMENT FROM THE OFFICE OF THE CHIEF OF ENGINEERS AS FOLLOWS:

THE 1,500 GALLON PER HOUR WATER PURIFICATION UNIT SERVES THE EXTREMELY IMPORTANT FUNCTION OF REMOVING BOTH NATURAL IMPURITIES AND INDUCED MATERIAL SUCH AS CHEMICAL, BIOLOGICAL AND RADIOLOGICAL CONTAMINATION FROM WATER. THE HEALTH AND SAFETY OF TROOPS AND CIVILIANS ARE INVOLVED AND FAILURE TO PERFORM THIS FUNCTION RELIABLY CANNOT BE TOLERATED. THE GOVERNMENT MUST INSURE THAT SUCH ITEMS ISSUED TO TROOPS ARE THE BEST AVAILABLE AND THIS CAN ONLY BE ACCOMPLISHED BY LIMITING PROCUREMENT TO EXPERIENCED AND QUALIFIED MANUFACTURERS OF WATER PURIFICATION EQUIPMENT (WATER PURIFICATION BEING DEFINED AS CLARIFICATION, DISINFECTION AND FILTRATION). EXPERIENCE AND TECHNICAL KNOWLEDGE OF THE COMPLICATED CHEMICAL AND PHYSICAL PROCESSES OF WATER PURIFICATION IS REQUIRED TO MAKE NECESSARY DECISIONS RELATIVE TO THE SELECTION OF MATERIAL, FABRICATION TECHNIQUES, AND NON-MILITARY COMPONENTS. FAULTY SELECTION IN AND REDUCTION IN THE RELIABILITY OF THE EQUIPMENT, ALTER THE DESIGN FUNCTIONING CHARACTERISTICS, COMPLICATE THE CONTROL OF THE CHEMICAL AND PHYSICAL PROCESSES, AND INCREASE MAINTENANCE PROBLEMS. CERTAIN OF THE NON -MILITARY DESIGN COMPONENTS SPECIFIED REPRESENT CONSIDERABLE TIME AND EXPERIENCE IN DEVELOPMENT BY FIRMS ENGAGED IN THE MANUFACTURE OF WATER PURIFICATION EQUIPMENT. SIMILAR COMPONENTS CANNOT BE DEVELOPED OR DUPLICATED CONCURRENTLY WITH THE QUANTITY PROCUREMENT CONTRACT. FOR THESE REASONS, IT WAS DECIDED TO INCLUDE THE EXPERIENCE QUALIFICATION PROVISION IN THE INVITATION FOR BIDS.

THE CONTRACTING OFFICER AND THE CONTRACT REVIEW BOARD DETERMINED THAT AN AWARD COULD NOT BE MADE TO ANY OF THE THREE LOWEST BIDDERS BECAUSE EACH OF THE THREE WAS NONRESPONSIVE TO THE PROVISION IN THE INVITATION THAT EACH BIDDER MUST QUALIFY AS A MANUFACTURER EXPERIENCED IN THE DESIGN AND MANUFACTURE OF WATER PURIFICATION EQUIPMENT RELATIVELY SIMILAR TO THE ITEM REQUIRED BY THE INVITATION. IT IS CONTENDED BY THE PROTESTING BIDDERS THAT THE REJECTION OF THEIR BIDS AS BEING NONRESPONSIVE TO NOTE NO. 5 OF THE INVITATION, ON A FAILURE TO SHOW SUFFICIENT EXPERIENCE, CONSTITUTES A REJECTION FOR REASON OF LACK OF "CAPACITY" OF A SMALL BUSINESS CONCERN WITHIN THE MEANING OF THE TERM "CAPACITY" AS USED IN THE SMALL BUSINESS ACT, AND, THEREFORE, THE MATTER SHOULD HAVE BEEN SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY.

UNDER THE PROVISIONS OF SECTION 8 (B) (7) OF THE SMALL BUSINESS ACT, AS AMENDED BY PUBLIC LAW 85-836, 15 U.S.C. 637 (B) (7), THE ISSUANCE OF A CERTIFICATE OF COMPETENCY BY THE SMALL BUSINESS ADMINISTRATION IS CONCLUSIVE UPON GOVERNMENT PROCUREMENT OFFICERS WITH RESPECT TO THE COMPETENCY, AS TO CAPACITY AND CREDIT, OF ANY SMALL BUSINESS CONCERN TO PERFORM A GOVERNMENT CONTRACT. THE GOVERNING ARMED SERVICES PROCUREMENT REGULATION (1ASPR 1-705.6 (B) (II) ( REQUIRES THAT AN OTHERWISE ACCEPTABLE BID SUBMITTED BY A SMALL BUSINESS CONCERN SHALL NOT BE REJECTED BY REASON OF LACK OF CAPACITY OR CREDIT UNTIL THE MATTER SHALL HAVE BEEN REFERRED TO SMALL BUSINESS ADMINISTRATION (EXCEPT IN CERTAIN LIMITED INSTANCES) FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY. SECTION 1-705.6 (A) OF ASPR, AS REVISED IN JANUARY OF THIS YEAR, STATES SPECIFICALLY THAT THE TERM "CAPACITY" MEANS---

* * * THE OVERALL ABILITY OF A PROSPECTIVE SMALL BUSINESS CONTRACTOR TO MEET QUALITY, QUANTITY, AND TIME REQUIREMENTS OF A PROPOSED CONTRACT AND INCLUDES ABILITY TO PERFORM, ORGANIZATION, EXPERIENCE, TECHNICAL KNOWLEDGE, SKILLS,"KNOWHOW," TECHNICAL EQUIPMENT, AND FACILITIES.

THE SPECIFIC SHORTCOMINGS OF THE THREE LOW BIDDERS IN THE INSTANT CASE AS DETERMINED BY THE PROCURING AGENCY RELATE TO THEIR LACK OF "EXPERIENCE AND FAMILIARITY IN THE DESIGN AND MANUFACTURE OF WATER PURIFICATION EQUIPMENT OF SIMILAR NATURE," AND LACK OF ACCEPTABLE BACKGROUND, EXPERIENCE, CURRENT PERSONNEL AND FACILITIES.' THE ADMINISTRATIVE REPORT STATES THAT "1EXPERIENCE AND TECHNICAL KNOWLEDGE OF THE COMPLICATED CHEMICAL AND PHYSICAL PROCESSES OF WATER PURIFICATION IS REQUIRED TO MAKE NECESSARY DECISIONS RELATIVE TO THE SELECTION OF MATERIAL, FABRICATION TECHNIQUES, AND NONMILITARY COMPONENTS. * * * CERTAIN OF THE NONMILITARY DESIGN COMPONENTS * * * CANNOT BE DEVELOPED OR DUPLICATED CONCURRENTLY WITH THE QUANTITY PROCUREMENT CONTRACT.'

WE DO NOT QUESTION THE DETERMINATION OF THE PROCURING ACTIVITY THAT, BECAUSE OF THE HEALTH AND SAFETY FACTORS INVOLVED, ONLY EXPERIENCED AND QUALIFIED MANUFACTURERS SHOULD BE CONSIDERED AS RESPONSIBLE BIDDERS. HOWEVER, THE DETERMINATION DOES NOT APPEAR TO GO TO THE EXTENT OF FINDING THAT "THE HIGHEST COMPETENCE OBTAINABLE" IS NEEDED, WHICH WOULD BRING THE PROCUREMENT WITHIN THE EXCEPTION FROM SMALL BUSINESS CLEARANCE PROVIDED IN ASPR 1-705.6 (C), NOR DOES IT APPEAR THAT THE PROCURING AGENCY CONSIDERED THE EQUIPMENT TO BE SO HIGHLY TECHNICAL OR COMPLEX, OR THE AVAILABILITY OF QUALIFIED SOURCES SO LIMITED, AS TO JUSTIFY PROCUREMENT BY NEGOTIATION UNDER ONE OF THE EXCEPTIONS OF 10 U.S.C. 2304 (A).

THE QUESTION BEFORE US, THEREFORE, IS WHETHER, UNDER THE PRINCIPLES APPLICABLE TO COMPETITIVE ADVERTISED BIDS, THE LOW BIDS PROPERLY WERE REJECTED WITHOUT REFERRAL TO SMALL BUSINESS ADMINISTRATION; IN OTHER WORDS, WHETHER THE BASIS FOR REJECTION WAS PROPERLY CONSIDERED TO BE NONRESPONSIVENESS TO THE INVITATION, OR WAS PURELY A MATTER OF RESPONSIBILITY OR CAPACITY AS TO WHICH SMALL BUSINESS ADMINISTRATION IS THE FINAL ARBITER. WHEN THE REASONS GIVEN FOR REJECTION OF THE BIDS ARE EXAMINED IN THE LIGHT OF THE DEFINITION OF ,CAPACITY" CONTAINED IN SECTION 1-705.6 (A) OF ASPR, WE CANNOT ESCAPE THE CONCLUSION THAT THESE REASONS BOIL DOWN TO DOUBT AS TO THE BIDDERS, ABILITY TO MEET THE QUALITY REQUIREMENTS OF THE PROPOSED CONTRACT, OR AS TO THEIR TECHNICAL KNOWLEDGE, EXPERIENCE, OR "KNOW-HOW," ALL OF WHICH ARE DEFINED AS INCLUDED IN THE BIDDERS'"CAPACITY.' ALL OF THESE FACTORS ARE ELEMENTS OF A BIDDER'S RESPONSIBILITY, WHICH HAS ALWAYS BEEN RECOGNIZED AS A PREREQUISITE TO THE AWARD OF ANY CONTRACT, AND IS SO DECLARED IN THE STATUTORY REQUIREMENT THAT AWARD BE MADE TO A "RESPONSIBLE" BIDDER. WHILE WE HAVE IN A NUMBER OF CASES REJECTED PROTESTS BY BIDDERS WHO FAILED TO MEET EXPERIENCE QUALIFICATIONS SPECIFICALLY STATED IN INVITATIONS FOR BIDS, AND HAVE SOMETIMES REFERRED TO THE BIDS OF SUCH BIDDERS AS NOT "RESPONSIVE" TO THE INVITATION, WE HAVE IN ALL SUCH CASES CONSIDERED THE QUALIFICATION REQUIREMENTS ON THE BASIS OF WHETHER THEY WERE REASONABLE TESTS OF RESPONSIBILITY. WHERE IT APPEARS THAT A BIDDER EXCLUDED BY THE PROVISIONS OF SUCH A QUALIFICATION REQUIREMENT COULD NOT OTHERWISE HAVE BEEN FOUND TO BE LACKING IN RESPONSIBILITY, WE HAVE HELD THE QUALIFICATION REQUIREMENT TO BE IMPROPER AS AN UNAUTHORIZED RESTRICTION OF COMPETITION. SEE 39 COMP. GEN. 173. AS STATED THEREIN, WE FEEL THAT "THE STATEMENT OF SUCH QUALIFICATIONS SHOULD NOT BE CONSIDERED AS HAVING THE EFFECT OF TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION.'

THE QUESTION BEFORE US IS NOT WHETHER THE DETERMINATIONS BY ARMY THAT THE THREE LOWER BIDDERS WERE NOT "RESPONSIBLE" SOURCES FOR THE PROCUREMENT IN QUESTION WERE JUSTIFIED. THE CONGRESS HAS SPECIFICALLY LIMITED THE RIGHT OF PROCURING AGENCIES TO DETERMINE THE RESPONSIBILITY OF SMALL BUSINESS BIDDERS BY GIVING THE SMALL BUSINESS ADMINISTRATION THE FINAL WORD AS TO THOSE ELEMENTS OF RESPONSIBILITY INCLUDED IN THE TERMS "CAPACITY AND CREDIT.' SINCE THE EXPERIENCE REQUIREMENTS STATED IN NOTE NO. 5 OF THE INVITATION CLEARLY GO TO MATTERS OF RESPONSIBILITY WHICH ARE PROPERLY INCLUDED IN THE DEFINITIONS OF "CAPACITY" IN ASPR 1 705.6 (A), WE CANNOT AGREE THAT THE STATUTORY AUTHORITY OF THE SMALL BUSINESS ADMINISTRATION CAN BE DEFEATED MERELY BY PUTTING THE REQUIREMENTS IN THE INVITATION AND REJECTING THE BID AS NONRESPONSIVE THERETO.

SINCE THE QUALIFICATIONS OF THE THREE LOWER BIDDERS, ALL OF WHICH ALLEGEDLY WERE SMALL BUSINESS CONCERNS, HAVE NOT BEEN CONSIDERED BY SMALL BUSINESS ADMINISTRATION, WE ARE OF THE OPINION THAT THE VALIDITY OF THE AWARD TO MET-1PRO MUST BE CONSIDERED AS DEPENDENT UPON THE DETERMINATIONS OF THAT AGENCY WITH RESPECT THERETO. SEE B-137471 OCTOBER 24, 1958.