B-143170, AUG. 5, 1960

B-143170: Aug 5, 1960

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 10. THREE BIDS WERE RECEIVED AND OPENED ON MAY 17. A PREAWARD SURVEY WAS CONDUCTED TO DETERMINE YOUR TECHNICAL AND FINANCIAL ABILITY TO PERFORM THE CONTRACT SERVICES. THIS PROCEDURE IS CONTEMPLATED BY SECTION 1-905.4 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHEN IT IS NECESSARY TO OBTAIN INFORMATION RELATING TO A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY. WAS THE SUBJECT OF AN EXHAUSTIVE REVIEW. NO SATISFACTORY EVIDENCE OF FINANCIAL ABILITY WAS FURNISHED BY YOU WHICH WOULD MEET REQUIREMENTS OF SECTION 1-903.1 (II) OF THE ASPR. WHILE AN INSPECTION WAS MADE OF THE EQUIPMENT YOU PROPOSED TO UTILIZE. - WAS OWNED BY U.S. IT WAS CONCLUDED THAT YOUR FIRM WAS NOT A REGULAR DEALER FOR SUPPLYING THE SERVICES BID UPON AS REQUIRED BY THE INVITATION.

B-143170, AUG. 5, 1960

TO U.S. TECHNICAL SERVICES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 10, 1960, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. AIV -41-014-60-108, AS AMENDED, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT BLISS, TEXAS, ON APRIL 14, 1960.

THE INVITATION REQUESTED BIDS FOR THE COLLECTION AND DISPOSAL OF REFUSE ON THE FORT BLISS MILITARY RESERVATION FOR A PERIOD OF 12 MONTHS. THREE BIDS WERE RECEIVED AND OPENED ON MAY 17, 1960. THE ABSTRACT OF BIDS SHOWS THAT YOUR FIRM SUBMITTED THE LOWEST BID IN THE AMOUNT OF $10,812.25 PER MONTH, THAT MOORE SANITATION, INC., SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $11,450 PER MONTH, AND THAT HORN AND SMITH SUBMITTED THE HIGHEST BID IN THE AMOUNT OF $15,000 PER MONTH.

IN VIEW OF YOUR APPARENT LACK OF PRIOR EXPERIENCE IN SERVICE-TYPE GOVERNMENT CONTRACTS, AND SINCE YOU HAD NOT COMPLIED WITH PARAGRAPH TP 4 OF THE TECHNICAL SPECIFICATIONS REQUIRING THE SUBMISSION OF A LIST OF DETAILED DATA AS TO THE DESCRIPTION, MEDALS, TYPES AND CONDITION OF THE EQUIPMENT PROPOSED TO BE USED, A PREAWARD SURVEY WAS CONDUCTED TO DETERMINE YOUR TECHNICAL AND FINANCIAL ABILITY TO PERFORM THE CONTRACT SERVICES. THIS PROCEDURE IS CONTEMPLATED BY SECTION 1-905.4 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHEN IT IS NECESSARY TO OBTAIN INFORMATION RELATING TO A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY. THE MATTER OF YOUR CAPABILITIES, BOTH TECHNICAL AND FINANCIAL, WAS THE SUBJECT OF AN EXHAUSTIVE REVIEW, INCLUDING SEVERAL MEETINGS WITH MEMBERS OF YOUR ORGANIZATION. NO SATISFACTORY EVIDENCE OF FINANCIAL ABILITY WAS FURNISHED BY YOU WHICH WOULD MEET REQUIREMENTS OF SECTION 1-903.1 (II) OF THE ASPR. AND WHILE AN INSPECTION WAS MADE OF THE EQUIPMENT YOU PROPOSED TO UTILIZE, THERE REMAINED AN UNRESOLVED DOUBT WHETHER SUCH EQUIPMENT--- THOUGH APPARENTLY IN COMPLIANCE WITH THE REQUIREMENTS OF THE TECHNICAL SPECIFICATIONS--- WAS OWNED BY U.S. TECHNICAL SERVICES OR UNDER LEASE TO YOUR FIRM. MOREOVER, IT WAS CONCLUDED THAT YOUR FIRM WAS NOT A REGULAR DEALER FOR SUPPLYING THE SERVICES BID UPON AS REQUIRED BY THE INVITATION. ON THE BASIS OF THE PREAWARD SURVEY, IT WAS DETERMINED THAT YOUR FIRM WAS NONRESPONSIVE TO THE TERMS OF THE INVITATION AND WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF SECTION 1-903.1 OF THE ASPR. SINCE IT WAS ADMINISTRATIVELY DETERMINED TO REJECT YOUR BID FOR REASONS RELATING TO YOUR CAPACITY AND CREDIT, THE MATTER OF YOUR NONRESPONSIBILITY WAS REFERRED ON JUNE 10, 1960, TO THE SMALL BUSINESS ADMINISTRATION, PURSUANT TO SECTION 1-705.6 (B) OF THE ASPR, FOR CONSIDERATION AS TO WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED. UNDER DATE OF JUNE 27, 1960, THE SMALL BUSINESS ADMINISTRATION ADVISED THE PROCUREMENT ACTIVITY THAT: "BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION, THIS AGENCY HAS DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY IN THIS INSTANCE.' THEREAFTER, ON JUNE 28, 1960, CONTRACT NO. DA-41-014- AIV-2319 WAS AWARDED TO MOORE SANITATION, INC. IN OUR OPINION, SUCH AWARD IS NOT SUBJECT TO OBJECTION BY OUR OFFICE.

THE MATTER OF YOUR FIRM'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR UNDER THE INVITATION BECAME ONE SOLELY FOR RESOLUTION BY THE PROCUREMENT ACTIVITY IN VIEW OF THE REFUSAL OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY. IN SUCH A CASE, THERE IS FOR APPLICATION THE GENERAL RULE THAT THE QUESTION AS TO THE RESPONSIBILITY AND CAPABILITY OF A BIDDER ON A PROPOSED GOVERNMENT CONTRACT IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY AND SUCH DETERMINATION WHEN MADE WILL NOT BE QUESTIONED BY THE COURTS OR OUR OFFICE, IN THE ABSENCE OF A SHOWING OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 96; 20 COMP. GEN. 862; 37 ID. 430, 435. SINCE IT HAS BEEN DETERMINED ON THE BASIS OF COMPETENT EVIDENCE THAT YOUR FIRM DID NOT MEET THE PRESCRIBED STANDARDS OF RESPONSIBILITY RELATING TO ITS ABILITY TO PERFORM THE REQUIRED CONTRACT WORK, NO LEGAL BASIS EXISTS FOR DISTURBING THE ADMINISTRATIVE ACTION TAKEN UNDER THE INVITATION.