B-143145, NOV. 3, 1960

B-143145: Nov 3, 1960

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TO SOONER CONTRACTING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 1. BIDS WERE OPENED ON FEBRUARY 23. WAS THE LOWEST OF THE 12 BIDS RECEIVED. SINCE YOU WERE CURRENTLY DELINQUENT ON TWO CONTRACTS AT FORBES AIR FORCE BASE. TOGETHER WITH SUPPORTING DATA WAS FORWARDED BY THE CONTRACTING OFFICER TO AIR MATERIEL COMMAND. FOR APPROVAL IN ACCORDANCE WITH AFPI 2-403 (A) (2) (C) AND WAS APPROVED BY THAT COMMAND ON APRIL 11. THE PROPOSED AWARD OF A CONTRACT TO THE SECOND LOW BIDDER WAS APPROVED ON APRIL 14. YOU PROTESTED THE AWARD TO THE SECOND LOW BIDDER ON THE BASIS THAT YOUR LOW BID WAS DISQUALIFIED WITHOUT FIRST INVOKING THE CERTIFICATE OF COMPETENCY PROCEDURE PROVIDED IN SECTION 1- 705.6 OF THE ARMED SERVICES PROCUREMENT REGULATION.

B-143145, NOV. 3, 1960

TO SOONER CONTRACTING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 1, 1960, CONCERNING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 14- 603-60-37, ISSUED BY FORBES AIR FORCE BASE, TOPEKA, KANSAS.

THE INVITATION ISSUED ON DECEMBER 30, 1959, REQUESTED BIDS FOR THE REHABILITATION OF AIRMEN DORMITORIES IN THE 800 AREA, FORBES AIR FORCE BASE. BIDS WERE OPENED ON FEBRUARY 23, 1960. THE BID OF YOUR COMPANY, A SMALL BUSINESS CONCERN, WAS THE LOWEST OF THE 12 BIDS RECEIVED. SINCE YOU WERE CURRENTLY DELINQUENT ON TWO CONTRACTS AT FORBES AIR FORCE BASE, THE CONTRACTING OFFICER REQUESTED A COMPLETE FACILITY CAPABILITY REPORT ON THE SOONER CONTRACTING COMPANY. ON THE BASIS OF THE FACTS REPORTED BY MCCONNELL AIR FORCE BASE AND THE EXPERIENCE OF FORBES AIR FORCE BASE WITH YOU UNDER THE TWO EXISTING CONTRACTS THE CONTRACTING OFFICER DETERMINED THAT YOU DID NOT MEET THE REQUIREMENTS OF A RESPONSIBLE BIDDER AS DEFINED BY SECTION 1-903 OF THE ARMED SERVICES PROCUREMENT REGULATION. THE PROPOSED REJECTION OF THE BID, TOGETHER WITH SUPPORTING DATA WAS FORWARDED BY THE CONTRACTING OFFICER TO AIR MATERIEL COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, FOR APPROVAL IN ACCORDANCE WITH AFPI 2-403 (A) (2) (C) AND WAS APPROVED BY THAT COMMAND ON APRIL 11, 1960. ALSO, THE PROPOSED AWARD OF A CONTRACT TO THE SECOND LOW BIDDER WAS APPROVED ON APRIL 14, 1960.

BY LETTER DATED APRIL 25, 1960, YOU PROTESTED THE AWARD TO THE SECOND LOW BIDDER ON THE BASIS THAT YOUR LOW BID WAS DISQUALIFIED WITHOUT FIRST INVOKING THE CERTIFICATE OF COMPETENCY PROCEDURE PROVIDED IN SECTION 1- 705.6 OF THE ARMED SERVICES PROCUREMENT REGULATION. UNDER DATE OF APRIL 27, 1960, YOU WERE ADVISED THAT SINCE THE REASON FOR THE REJECTION OF YOUR BID WAS BASED ON BUSINESS PRACTICES AND DELINQUENCIES (NOT CONSIDERED TO BE CAUSED BY FACTORS BEYOND YOUR CONTROL), THE CERTIFICATE OF COMPETENCY PROCEDURE PROVIDED UNDER ASPR 1-705.6 WAS NOT APPLICABLE IN VIEW OF SUBPARAGRAPH (B) (D) OF THE SAID ASPR PROVISION, WHICH PROVIDES AS FOLLOWS:

"/D) THIS PROCEDURE DOES NOT APPLY WHERE THE CONTRACTING OFFICER HAS FOUND A SMALL BUSINESS CONCERN NONRESPONSIBLE FOR A REASON OTHER THAN LACK OF CAPACITY OR CREDIT. THUS, IT DOES NOT APPLY WHERE A CONCERN DOES NOT SATISFY THE CRITERIA OF RESPONSIBILITY IN ASPR 1 903.1 (I), (V), (VI), AND (VII). WHERE THE CONTRACTING OFFICER DETERMINES THAT A CONCERN DOES NOT MEET THE REQUIREMENTS OF ASPR 1 903.1 (IV) AS TO A SATISFACTORY RECORD OF PERFORMANCE, THE PROCEDURE IS MANDATORY ONLY IF THE UNSATISFACTORY RECORD OF PERFORMANCE WAS DUE SOLELY TO INADEQUATE CAPACITY OR CREDIT. HOWEVER, IF THE CONTRACTING OFFICER HAS ANY DOUBT AS TO WHETHER THE UNSATISFACTORY RECORD OF PERFORMANCE CAN REASONABLY BE ATTRIBUTED SOLELY TO LACK OF CAPACITY OR CREDIT, THE MATTER SHALL BE DISCUSSED WITH THE LOCAL SBA REPRESENTATIVE. IF THE LOCAL SBA REPRESENTATIVE IS OF THE OPINION THAT THE UNSATISFACTORY RECORD OF PERFORMANCE IS ATTRIBUTABLE SOLELY TO A LACK OF CAPACITY OR CREDIT, AND THE CONTRACTING OFFICER DISAGREES, THE CONTRACTING OFFICER SHALL, IN ACCORDANCE WITH DEPARTMENTAL PROCEDURES, FORWARD THE MATTER TO HIGHER AUTHORITY WITHIN HIS DEPARTMENT FOR RESOLUTION. THE DECISION OF SUCH HIGHER AUTHORITY SHALL BE FINAL.'

IN YOUR LETTER OF JUNE 1, 1960, TO THIS OFFICE, YOU DENY THE ACCURACY OF THE REASONS GIVEN FOR THE REJECTION OF YOUR BID AND REQUEST AN INVESTIGATION AND DECISION ON OUR FINDINGS IN THE MATTER.

THE REPORT FURNISHED BY THE DEPARTMENT OF THE AIR FORCE SHOWS THAT THE FORBES AIR FORCE BASE PROCUREMENT OFFICER ADVISED YOU OF YOUR FAILURE TO SUBMIT SHOP DRAWINGS, PROGRESS REPORTS, PAYROLL REPORTS, AND OF YOUR DELINQUENCY IN PROGRESS UNDER TWO CONTRACTS AT FORBES AIR FORCE BASE IN A SERIES OF LETTERS DATED OCTOBER 26, OCTOBER 29, NOVEMBER 10, NOVEMBER 16, NOVEMBER 18, AND DECEMBER 11, 1959, AND JANUARY 7, JANUARY 15, FEBRUARY 8, AND FEBRUARY 17, 1960. ALSO, THE RECORD CONTAINS A MEMORANDUM OF A CONFERENCE HELD ON FEBRUARY 23, 1960, BETWEEN MEMBERS OF YOUR COMPANY AND FORBES AIR FORCE BASE PERSONNEL WITH RESPECT TO DELINQUENCIES UNDER THE TWO CONTRACTS.

YOUR CONTENTION THAT YOUR WORK UNDER A PRIOR CONTRACT AT MCCONNELL AIR FORCE BASE MUST HAVE BEEN SATISFACTORILY PERFORMED SINCE YOU WERE AWARDED ANOTHER CONTRACT ON JANUARY 29, 1960, IS DENIED. IT IS REPORTED THAT AT THE TIME OF ADVERTISING FOR THE SECOND CONTRACT, WHICH INVOLVED ABOUT $5,500, YOUR BID WAS $800 LOWER THAN THE NEXT LOW BID AND THAT AVAILABLE FUNDS AT MCCONNELL AIR FORCE BASE WERE SO LIMITED IN JANUARY THAT IT WAS DETERMINED NECESSARY TO GIVE YOU THE AWARD. THE AWARD IN NO WAY INDICATED APPROVAL OF YOUR PERFORMANCE OF THE FIRST CONTRACT AND IT IS STATED THAT YOUR PERFORMANCE OF THE SECOND CONTRACT HAS BEEN A REPETITION OF YOUR PRIOR POOR PERFORMANCE UNDER THE FIRST CONTRACT.

IN OUR DECISION OF OCTOBER 9, 1958, 38 COMP. GEN. 289, IT WAS HELD THAT THE QUESTION OF COMPETENCY NEED NOT BE SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION "WHERE IT IS THE CONSIDERED OPINION OF PROCUREMENT OFFICIALS THAT A SMALL BUSINESS CONCERN'S UNSATISFACTORY PRIOR PERFORMANCE WAS ATTRIBUTABLE TO CAUSES OTHER THAN INADEQUATE CAPACITY OR CREDIT.' SEE ALSO DECISION OF FEBRUARY 24, 1959, B 138233.

IN THE INSTANT CASE, WHILE THE RECORD DISCUSSES IN NUMEROUS INSTANCES THE CREDIT, MANAGERIAL ABILITY, AND EXPERIENCE OF THE SOONER CONTRACTING COMPANY AS A GENERAL CONTRACTOR, THE CONTRACTING OFFICER STATES, BASED UPON HIS OWN EXPERIENCE AND THE FACILITY CAPABILITY REPORT, THAT THESE FACTORS DID NOT CONSTITUTE HIS PRIMARY REASON FOR REFUSING TO CONSIDER SOONER FOR THE NEW CONTRACT BUT WERE MERELY CUMULATIVE. THE EVIDENCE REASONABLY ESTABLISHES, AS FOUND BY THE CONTRACTING OFFICER, THAT SOONER'S POOR PERFORMANCE RECORD AS A GENERAL CONTRACTOR WAS NOT DUE SOLELY TO LACK OF CAPACITY OR CREDIT, BUT RATHER TO DELIBERATE AND WILFUL FAILURE TO COMPLY WITH THE CONTRACT REQUIREMENTS, PARTICULARLY WITH RESPECT TO YOUR REPEATED DELINQUENCIES IN THE SUBMISSION OF PROGRESS AND PAYROLL REPORTS. WE THEREFORE FIND NO BASIS TO QUESTION THAT DETERMINATION.

FOR THE FOREGOING REASONS WE FIND NO LEGAL BASIS TO QUESTION THE AWARD MADE IN THIS CASE.