B-143332, SEP. 21, 1960

B-143332: Sep 21, 1960

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INC.: REFERENCE IS MADE TO A LETTER DATED JULY 9. FOURTEEN BIDS WERE RECEIVED. 830 WAS THE LOWEST RECEIVED. 890 WAS SUBMITTED BY GOTTLIEB CONTRACTING. IS TO BE COMPLETED WITHIN 240 CALENDAR DAYS AFTER RECEIPT OF NOTICE TO PROCEED. THE INSTALLATION OF THE GENERATOR IS TO BE COMPLETED WITHIN 330 CALENDAR DAYS AFTER RECEIPT OF SAID NOTICE TO PROCEED. SINCE YOU WERE THE APPARENT LOW BIDDER A PRE-AWARD SURVEY OF YOUR FIRM TO DETERMINE WHETHER YOU WERE A RESPONSIBLE BIDDER FOR THE PERFORMANCE OF THE ADVERTISED WORK WAS CONDUCTED BY THE ADMINISTRATIVE OFFICE. YOU WERE NOTIFIED BY THE CONTRACTING OFFICER THAT THE RESULTS OF THE PRE-AWARD SURVEY REVEALED UNSATISFACTORY PROGRESS IN MEETING SCHEDULED COMPLETION DATES IN CONNECTION WITH JOBS AT ANDREWS AIR FORCE BASE.

B-143332, SEP. 21, 1960

TO R. E. LEE ELECTRIC CO., INC.:

REFERENCE IS MADE TO A LETTER DATED JULY 9, 1960, FROM YOUR ATTORNEYS, MCNUTT, DUDLEY AND EASTERWOOD, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. ENG-36 109-60-8, ISSUED BY THE DISTRICT ENGINEER, U.S. ARMY ENGINEER DISTRICT, PHILADELPHIA, ON MAY 23, 1960.

THE INVITATION REQUESTED BIDS--- TO BE OPENED JUNE 21, 1960--- FOR THE CONSTRUCTION OF AN APPROACH LIGHTING SYSTEM, SITE IMPROVEMENTS AND AN ADDITION TO THE CONTROL BUILDING AT MCGUIRE AIR FORCE BASE, WRIGHTSTOWN, NEW JERSEY. FOURTEEN BIDS WERE RECEIVED. YOUR BID IN THE AMOUNT OF $227,830 WAS THE LOWEST RECEIVED. THE NEXT LOWEST BID IN THE AMOUNT OF $228,890 WAS SUBMITTED BY GOTTLIEB CONTRACTING, INC. THE REQUIRED WORK, EXCEPT THE INSTALLATION OF AN EMERGENCY GENERATOR, IS TO BE COMPLETED WITHIN 240 CALENDAR DAYS AFTER RECEIPT OF NOTICE TO PROCEED. THE INSTALLATION OF THE GENERATOR IS TO BE COMPLETED WITHIN 330 CALENDAR DAYS AFTER RECEIPT OF SAID NOTICE TO PROCEED.

SINCE YOU WERE THE APPARENT LOW BIDDER A PRE-AWARD SURVEY OF YOUR FIRM TO DETERMINE WHETHER YOU WERE A RESPONSIBLE BIDDER FOR THE PERFORMANCE OF THE ADVERTISED WORK WAS CONDUCTED BY THE ADMINISTRATIVE OFFICE, AS REQUIRED BY SECTION 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION. UNDER DATE OF JULY 5, 1960, YOU WERE NOTIFIED BY THE CONTRACTING OFFICER THAT THE RESULTS OF THE PRE-AWARD SURVEY REVEALED UNSATISFACTORY PROGRESS IN MEETING SCHEDULED COMPLETION DATES IN CONNECTION WITH JOBS AT ANDREWS AIR FORCE BASE, MCGUIRE AIR FORCE BASE, AND AT FORT RITCHIE. ALSO, YOU WERE INFORMED THAT IN VIEW OF THE URGENCY OF THE PROJECT HERE INVOLVED, IT WAS ESSENTIAL THAT AWARD BE MADE TO A BIDDER OF UNQUESTIONED ABILITY TO MAINTAIN REQUIRED PROGRESS AND THAT SINCE AN AFFIRMATIVE DETERMINATION COULD NOT BE MADE THAT YOUR FIRM WAS RESPONSIBLE IN THIS REGARD, YOUR BID COULD NOT BE ACCEPTED AND WAS THEREFORE REJECTED.

IN THE LETTER OF JULY 9, 1960, YOUR ATTORNEYS STATE THAT YOUR FIRM HAS BEEN AWARDED 47 CONTRACTS BY THE GOVERNMENT IN THE PAST TWO YEARS AND THAT, EXCEPT FOR TWO INSTANCES OF DELAY FOR WHICH YOUR FIRM WAS NOT RESPONSIBLE, THE WORK COVERED BY THESE CONTRACTS HAS BEEN PERFORMED EXPEDITIOUSLY AND TO THE COMPLETE SATISFACTION OF THE GOVERNMENT. REPORT FROM THE ADMINISTRATIVE OFFICE SHOWS THAT OF 25 CONTRACTS PERFORMED OR BEING PERFORMED YOU WERE ON SCHEDULE ONLY AS TO 3 OF THEM. SUBSEQUENT TO THE DECISION TO REJECT YOUR BID, AN APPLICATION FOR A CERTIFICATE OF COMPETENCY WITH RESPECT TO YOUR RESPONSIBILITY UNDER THE INVITATION HERE INVOLVED WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR DETERMINATION. ON AUGUST 19, 1960, THAT AGENCY NOTIFIED THE CONTRACTING OFFICE THAT IT HAD DECLINED TO ISSUE YOU A CERTIFICATE OF COMPETENCY IN THIS CASE.

ASIDE FROM THE FACT THAT SMALL BUSINESS ADMINISTRATION HAS REFUSED TO ISSUE A CERTIFICATE OF COMPETENCY--- AND ITS DETERMINATION IS CONCLUSIVE SO FAR AS THIS OFFICE IS CONCERNED--- THE QUESTION OF RESPONSIBILITY IS A MATTER AS TO WHICH SECTION 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION REQUIRES THE CONTRACTING OFFICER TO MAKE AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE MEANING OF SECTIONS 1-902 AND 1-903 OF ASPR. THERE IS FOR APPLICATION HERE THE GENERAL RULE THAT THE QUESTION AS TO RESPONSIBILITY AND CAPABILITY OF THE 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 FRAUD OR THE LACK OF A REASONABLE BASIS FOR DETERMINATION. SEE O-BRIEN V. CARNEY, 6 FED.SUPP. 761, 762; FRIEND V. LEE, 221 F/2D) 96; 20 COMP. GEN. 862; AND 37 ID. 430, 435.

SINCE IT HAS BEEN DETERMINED THAT YOUR FIRM DID NOT MEET THE PRESCRIBED STANDARDS OF RESPONSIBILITY AS SET OUT IN SECTION 1-903 OF ASPR AND SINCE YOUR FIRM WAS DENIED A CERTIFICATE OF COMPETENCY, NO LEGAL BASIS EXISTS FOR DISTURBING THE ACTION OF THE ADMINISTRATIVE OFFICE IN REJECTING YOUR BID.