B-144143, NOV. 10, 1960

B-144143: Nov 10, 1960

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WALSH: REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 30 AND OCTOBER 7. SEVEN BIDS WERE RECEIVED. YOU WERE THE LOW BIDDER. WHICH WAS CONDUCTED BY THE INSPECTOR OF NAVAL MATERIAL. IT WAS FOUND THAT YOUR COMPANY DID NOT QUALIFY AS A RESPONSIBLE BIDDER. IT IS ADMINISTRATIVELY REPORTED THAT YOUR PAST PERFORMANCE UNDER THE NAME OF ENGINEERING ENTERPRISES WAS CONSIDERED UNSATISFACTORY. ONE CONTRACT WAS FINALLY TERMINATED FOR DEFAULT BECAUSE YOUR COMPANY NEVER PRODUCED AN ACCEPTABLE ARTICLE. SINCE THE CONTRACTING OFFICER WAS UNABLE TO MAKE AN AFFIRMATIVE DETERMINATION THAT YOUR COMPANY WAS A RESPONSIBLE BIDDER WITHIN THE MEANING OF ASPR 1-903.1 (IV). THE CASE WAS SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION IN ACCORDANCE WITH SECTION 1-705.6 OF THE ARMED SERVICES PROCUREMENT REGULATIONS FOR THE PURPOSE OF HAVING IT DETERMINE WHETHER YOUR COMPANY DID HAVE THE CAPACITY AND CREDIT ENABLING YOU TO COMPLY WITH THE REQUIREMENTS OF THE INVITATION.

B-144143, NOV. 10, 1960

TO MR. DAVID A. WALSH:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 30 AND OCTOBER 7, AND 26, 1960, CONCERNING ALLEGED IMPROPRIETIES IN THE REJECTION OF A BID SUBMITTED BY YOU ON IFB 600-42-61, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., ON AUGUST 4, 1960.

THE RECORD INDICATES THAT THE INVITATION REQUESTED BIDS FOR FURNISHING 24 DEPTH RECORDERS REQUIRED BY THE NAVY MINE DEFENSE LABORATORY, PANAMA CITY, FLORIDA. SEVEN BIDS WERE RECEIVED, AND YOU WERE THE LOW BIDDER. HOWEVER, FOLLOWING A PRE-AWARD SURVEY, WHICH WAS CONDUCTED BY THE INSPECTOR OF NAVAL MATERIAL, BALTIMORE, IT WAS FOUND THAT YOUR COMPANY DID NOT QUALIFY AS A RESPONSIBLE BIDDER. IT IS ADMINISTRATIVELY REPORTED THAT YOUR PAST PERFORMANCE UNDER THE NAME OF ENGINEERING ENTERPRISES WAS CONSIDERED UNSATISFACTORY, AND ONE CONTRACT WAS FINALLY TERMINATED FOR DEFAULT BECAUSE YOUR COMPANY NEVER PRODUCED AN ACCEPTABLE ARTICLE. THEREFORE, SINCE THE CONTRACTING OFFICER WAS UNABLE TO MAKE AN AFFIRMATIVE DETERMINATION THAT YOUR COMPANY WAS A RESPONSIBLE BIDDER WITHIN THE MEANING OF ASPR 1-903.1 (IV), AS REQUIRED BY ASPR 1-902, THE CASE WAS SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION IN ACCORDANCE WITH SECTION 1-705.6 OF THE ARMED SERVICES PROCUREMENT REGULATIONS FOR THE PURPOSE OF HAVING IT DETERMINE WHETHER YOUR COMPANY DID HAVE THE CAPACITY AND CREDIT ENABLING YOU TO COMPLY WITH THE REQUIREMENTS OF THE INVITATION. THE SMALL BUSINESS ADMINISTRATION ADVISED THE CONTRACTING AGENCY THAT IT WOULD NOT ISSUE A CERTIFICATE OF COMPETENCY.

OUR OFFICE HAS HELD THAT THE REFUSAL OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY AS TO A SMALL BUSINESS BIDDER MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE BIDDER CONCERNED. 39 COMP. GEN. 705.

UNDER THE PROCEDURES PRESCRIBED BY THE REGULATIONS REFERRED TO ABOVE, THE QUESTION OF COMPETENCY OF A SMALL BUSINESS BIDDER IS NOT ORDINARILY REFERRED TO THE SMALL BUSINESS ADMINISTRATION EXCEPT WHEN THE CONTRACTING OFFICER HAS FOUND THAT THE BIDDER IS LACKING IN RESPONSIBILITY AS TO CAPACITY OR CREDIT. IF THAT AGENCY CERTIFIES THE BIDDER TO BE COMPETENT, THE CONTRACTING OFFICER IS REQUIRED TO ACCEPT THAT CERTIFICATION; IF IT REFUSES TO DO SO, THE CONTRACTING OFFICER'S DETERMINATION IS IN EFFECT CONFIRMED, AND IT WOULD NOT NORMALLY BE EXPECTED THAT HE WOULD REVERSE HIS POSITION EXCEPT FOR MOST COGENT REASONS, EVEN THOUGH HE MIGHT THEORETICALLY HAVE THE RIGHT TO DO SO.

WE HAVE NO AUTHORITY TO REVIEW THE DETERMINATIONS OF THE SMALL BUSINESS ADMINISTRATION IN THIS FIELD OR TO REQUIRE OR DIRECT IT TO ISSUE A CERTIFICATE OF COMPETENCY. NOR DO WE UNDERTAKE TO DISTURB A CONTRACTING OFFICER'S DETERMINATIONS AS TO RESPONSIBILITY, UNLESS THEY CLEARLY APPEAR TO BE SO ARBITRARY AND UNFOUNDED AS TO AMOUNT TO ABUSE OF HIS DISCRETION. WHILE THE STATEMENTS CONTAINED IN YOUR LETTER OF OCTOBER 26, CONCERNING PERFORMANCE UNDER PRIOR CONTRACTS, ARE CONTRARY IN SEVERAL MATERIAL POINTS TO STATEMENTS INCLUDED IN THE NAVY REPORT OF PRE-AWARD SURVEY, UPON WHICH THE REJECTION OF YOUR BID WAS BASED, WE DO NOT FEEL THAT WE CAN PROPERLY CONCLUDE FROM THE ENTIRE RECORD SUBMITTED THAT THERE WAS NO SUBSTANTIAL BASIS FOR THE ACTION TAKEN.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES SHOWN BY THE RECORD IN THIS CASE, WE FIND NO BASIS ..END :