B-145983, JUN. 26, 1961

B-145983: Jun 26, 1961

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PAGE 4 OF THE INVITATION PROVIDED: "TIME FOR COMPLETION: PLANS FOR THE BUILDINGS IN WHICH THE INSTALLATIONS ARE TO BE MADE ARE IN THE PROCESS OF BEING DRAWN AND THE BUILDINGS WILL BE UNDER CONSTRUCTION WITHIN A SHORT PERIOD OF TIME. THE FOOD AND DRUG ADMINISTRATION WILL GIVE THE SUCCESSFUL BIDDER/S) FORMAL NOTICE AT LEAST 60 DAYS IN ADVANCE OF THE DATE EACH BUILDING WILL BE AT A POINT WHEN INSTALLATION OF THE FURNITURE CAN BE STARTED. THE FOOD AND DRUG ADMINISTRATION WILL NOTIFY THE SUCCESSFUL BIDDER/S) BY FORMAL NOTICE THAT THE SUCCESSFUL BIDDER/S) HAS 90 DAYS TO COMPLETE THE INSTALLING OF THE EQUIPMENT. THE BIDDER STIPULATES HE WILL COMPLETE THE CONTRACT IN ACCORDANCE WITH THE FOREGOING TIME SCHEDULE.

B-145983, JUN. 26, 1961

TO METAL FABRICATORS, INC.:

BY TELEGRAM DATED MAY 26, 1961, YOU PROTESTED AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION NO. FDA 1950-61 DATED MARCH 20, 1961, COVERING THE FURNISHING AND INSTALLATION OF LABORATORY FURNITURE AND EQUIPMENT AT THREE BUILDING PROJECTS AT CINCINNATI, OHIO; KANSAS CITY, MISSOURI; AND MINNEAPOLIS, MINNESOTA.

PAGE 4 OF THE INVITATION PROVIDED:

"TIME FOR COMPLETION: PLANS FOR THE BUILDINGS IN WHICH THE INSTALLATIONS ARE TO BE MADE ARE IN THE PROCESS OF BEING DRAWN AND THE BUILDINGS WILL BE UNDER CONSTRUCTION WITHIN A SHORT PERIOD OF TIME. THEREFORE, THE FOOD AND DRUG ADMINISTRATION WILL GIVE THE SUCCESSFUL BIDDER/S) FORMAL NOTICE AT LEAST 60 DAYS IN ADVANCE OF THE DATE EACH BUILDING WILL BE AT A POINT WHEN INSTALLATION OF THE FURNITURE CAN BE STARTED.

"AFTER THE 60 DAYS REFERRED TO ABOVE HAS EXPIRED, THE FOOD AND DRUG ADMINISTRATION WILL NOTIFY THE SUCCESSFUL BIDDER/S) BY FORMAL NOTICE THAT THE SUCCESSFUL BIDDER/S) HAS 90 DAYS TO COMPLETE THE INSTALLING OF THE EQUIPMENT. THE BIDDER STIPULATES HE WILL COMPLETE THE CONTRACT IN ACCORDANCE WITH THE FOREGOING TIME SCHEDULE.

YOUR PROTEST IS DIRECTED TO THE FACT THAT THE DECISION OF THE SMALL BUSINESS ADMINISTRATION NOT TO ISSUE A CERTIFICATE OF COMPETENCY TO YOU AS THE LOWEST BIDDER UNDER THE INVITATION WAS BASED ON YOUR INABILITY TO OBTAIN A PERFORMANCE BOND COMMITMENT WHICH WAS REQUIRED TO BE FURNISHED BY THE SUCCESSFUL BIDDER WITHIN 15 DAYS AFTER NOTICE OF AWARD. YOU STATE THAT THE INABILITY OF YOUR FIRM TO OBTAIN A PERFORMANCE BOND COMMITMENT ARISES FROM THE FACT THAT THE BONDING COMPANY WOULD NOT ISSUE A BOND BECAUSE A SPECIFIED DATE WAS NOT FIXED IN THE PROPOSED CONTRACT FOR INSTALLATION OF THE EQUIPMENT. IN THAT CONNECTION, WE HAVE BEEN ADVISED THAT THE "TIME FOR COMPLETION" PROVISION, QUOTED ABOVE, WAS INCLUDED IN THE PROPOSED CONTRACT BECAUSE THE CONTRACTING AGENCY WAS UNABLE TO FORECAST EXACTLY THE DATES ON WHICH THE PROPOSED BUILDINGS WOULD REACH A STAGE OF COMPLETION WHICH WOULD PERMIT INSTALLATION OF FIXED FURNITURE AND EQUIPMENT.

SINCE IT HAD BEEN DETERMINED BY THE CONTRACTING OFFICER THAT YOUR FIRM WAS NOT A RESPONSIBLE PROSPECTIVE GOVERNMENT CONTRACTOR, THE MATTER OF YOUR FIRM'S RESPONSIBILITY, AS TO CAPACITY AND CREDIT, WAS FORWARDED TO THE SMALL BUSINESS ADMINISTRATION PURSUANT TO THE PROVISIONS OF SECTION 1- 1.709, FEDERAL PROCUREMENT REGULATIONS. ON MAY 29, 1961, THE SMALL BUSINESS ADMINISTRATION ADVISED THE PROCUREMENT AGENCY THAT "BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION, THIS AGENCY HAS DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY IN THIS INSTANCE.' WHILE IT MAY BE TRUE THAT THE DECISION OF THE SMALL BUSINESS ADMINISTRATION WAS BASED ON YOUR INABILITY TO FURNISH A PERFORMANCE BOND, IT IS APPARENT THAT SUCH FACT REFLECTED ON YOUR CREDIT AS A PROSPECTIVE CONTRACTOR AND, AS SUCH, ADVERSELY AFFECTED YOUR COMPETENCY. THE FACT THAT THE CONTRACTING AGENCY IS UNABLE TO FIX A DATE OF INSTALLATION CONSTITUTES NO BASIS FOR WAIVING THE BONDING REQUIREMENT AS TO YOUR FIRM, SINCE TO DO SO WOULD CREATE A PREFERENCE WHICH WAS NOT EXTENDED TO OTHER BIDDERS. UNDER THE CIRCUMSTANCES, WE CANNOT AGREE THAT A CONTRACT SHOULD BE AWARDED TO YOU ON THE UNDERSTANDING THAT THE BONDING REQUIREMENT WOULD BE WITHHELD PENDING THE DETERMINATION OF THE DATE OF INSTALLATION. IT IS CLEAR THAT THE BONDING REQUIREMENT WAS ONE WHICH WENT TO THE SUBSTANCE OF A BID WHICH COULD NOT BE WAIVED OR MODIFIED AFTER BID OPENING. 30 COMP. GEN. 179.

WE HAVE 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. WHEN THE ISSUANCE OF A CERTIFICATE OF COMPETENCY IS DENIED, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED. WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF THE SMALL BUSINESS ADMINISTRATION OR REQUIRE IT TO ISSUE A CERTIFICATE OF COMPETENCY. NOR DO WE DISTURB THE DETERMINATIONS OF A CONTRACTING OFFICER WHERE, AS HERE, THEY ARE SUPPORTED BY THE EVIDENCE OF RECORD AND ARE NEITHER ARBITRARY NOR CAPRICIOUS.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO OBJECT TO THE REJECTION OF YOUR BID.