B-147728, JAN. 31, 1962

B-147728: Jan 31, 1962

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YOU HAVE REQUESTED OUR ADVICE AS TO THE RESPONSIVENESS OF THE LOW BID SUBMITTED BY THE GOODWAY PRINTING COMPANY. PROPOSED TO PERFORM THE WORK UNDER THE CONTRACT IN ACCORDANCE WITH THE LOCATION REQUIREMENT IN A PLANT OWNED BY GUTHRIE BROTHERS WHICH IS LOCATED WITHIN THE PRESCRIBED METROPOLITAN AREA. WAS EXECUTED SUBSEQUENT TO THE OPENING OF BIDS AND MAY. IN YOUR VIEW THE ARRANGEMENT IS A SUBCONTRACT ENTERED INTO WITHOUT WRITTEN AUTHORIZATION BY THE CONTRACTING AGENCY AS REQUIRED BY THE TERMS OF THE INVITATION. GEN. 550 IT WAS HELD THAT A BIDDER CERTIFYING HIMSELF AS A SMALL BUSINESS. MAY NOT HAVE HIS BID CONSIDERED FOR AWARD. THE REQUIREMENT THAT THE CONTRACTOR'S FACILITIES BE LOCATED IN A GIVEN AREA IS A MATTER OF RESPONSIBILITY RATHER THAN OF RESPONSIVENESS AND.

B-147728, JAN. 31, 1962

TO MRS. ELLA B. CLAGETT, AGENCY FOR INTERNATIONAL DEVELOPMENT:

BY LETTER OF DECEMBER 5, 1961, WITH ENCLOSURES, YOU HAVE REQUESTED OUR ADVICE AS TO THE RESPONSIVENESS OF THE LOW BID SUBMITTED BY THE GOODWAY PRINTING COMPANY, INC., PURSUANT TO INVITATION FOR BIDS NO. ICA/W 62-12, ISSUED SEPTEMBER 8, 1961, FOR THE PROCUREMENT OF PRINTING SERVICES.

THE INVITATION REQUIRES THAT THE CONTRACTOR BE LOCATED IN THE METROPOLITAN WASHINGTON AREA. ALSO, IT PROHIBITS SUBCONTRACTING EXCEPT AS AUTHORIZED IN WRITING BY THE PROCURING AGENCY. THE GOODWAY COMPANY, WHICH HAS A PLANT LOCATED IN PHILADELPHIA, PROPOSED TO PERFORM THE WORK UNDER THE CONTRACT IN ACCORDANCE WITH THE LOCATION REQUIREMENT IN A PLANT OWNED BY GUTHRIE BROTHERS WHICH IS LOCATED WITHIN THE PRESCRIBED METROPOLITAN AREA.

YOUR DOUBT AS TO THE ACCEPTABILITY OF THE GOODWAY BID ARISES FROM THE FACT THAT THE AGREEMENT BETWEEN GOODWAY AND GUTHRIE, WHEREBY THE FORMER WOULD UTILIZE THE FACILITIES OF THE LATTER, WAS EXECUTED SUBSEQUENT TO THE OPENING OF BIDS AND MAY, UNDER YOUR INTERPRETATION, BE TERMINATED UPON 30 DAYS WRITTEN NOTICE BY EITHER PARTY, AND MAY NOT BE LEGALLY BINDING BECAUSE IT APPEARS TO PROVIDE FOR THE LEASE OF PERSONNEL AND FOR OTHER REASONS. IN YOUR VIEW THE ARRANGEMENT IS A SUBCONTRACT ENTERED INTO WITHOUT WRITTEN AUTHORIZATION BY THE CONTRACTING AGENCY AS REQUIRED BY THE TERMS OF THE INVITATION. YOU NOTE FURTHER THAT IN 40 COMP. GEN. 550 IT WAS HELD THAT A BIDDER CERTIFYING HIMSELF AS A SMALL BUSINESS, WHO DIVESTED HIMSELF OF CERTAIN BUSINESS AFFILIATIONS AFTER OPENING IN ORDER TO QUALIFY AS A SMALL BUSINESS BUT WHO COULD NOT SO QUALIFY AT THE TIME OF THE CERTIFICATION, MAY NOT HAVE HIS BID CONSIDERED FOR AWARD.

THE REQUIREMENT THAT THE CONTRACTOR'S FACILITIES BE LOCATED IN A GIVEN AREA IS A MATTER OF RESPONSIBILITY RATHER THAN OF RESPONSIVENESS AND, THEREFORE, THE FACT THAT AN OTHERWISE ACCEPTABLE BIDDER MAY NOT HAVE THE LOCAL FACILITIES AVAILABLE AT THE TIME OF BID OPENING, OR EVEN AT THE TIME OF AWARD, WOULD NOT JUSTIFY REJECTION OF HIS BID. B 146323, SEPTEMBER 18, 1961.

THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS OF COURSE PRIMARILY WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY SUBJECT, IN THE CASE OF A SMALL BUSINESS, TO THE ISSUANCE OF A CERTIFICATE OF COMPETENCY BY THE SMALL BUSINESS ADMINISTRATION. HOWEVER, THAT DETERMINATION SHOULD BE BASED UPON THE BIDDER'S CAPACITY TO PERFORM AT THE TIME SCHEDULED FOR PERFORMANCE. 39 COMP. GEN. 655. THE SITUATION CONSIDERED IN 40 COMP. GEN. 550 IS A SPECIAL ONE AND HAS NO APPLICATION TO THE GENERAL STANDARDS OF RESPONSIBILITY.

THE FOREGOING IS PREDICATED UPON THE UNDERSTANDING THAT THIS PROCUREMENT WAS INTENDED TO FOLLOW THE RULES PRESCRIBED FOR FORMAL ADVERTISING, NOTWITHSTANDING THE AUTHORITY IN SECTION 636 (B) OF THE ACT FOR INTERNATIONAL DEVELOPMENT OF 1961, 75 STAT. 458, TO ENTER INTO PRINTING AND BINDING CONTRACTS WITHOUT REGARD TO ANY OTHER PROVISION OF LAW. SHOULD YOU DETERMINE TO INVOKE THAT AUTHORITY, A DIFFERENT QUESTION WOULD BE PRESENTED.

WE WOULD LIKE TO POINT OUT ALSO THAT THE INVITATION DOES NOT INCLUDE ANY FIRM UNDERTAKING BY THE GOVERNMENT SO THAT AWARD WOULD RESULT ONLY IN A CONTINUING OFFER WHICH WOULD NOT BIND EITHER PARTY EXCEPT WITH RESPECT TO PURCHASE ORDERS ACTUALLY ISSUED PRIOR TO WITHDRAWAL OF THE OFFER.