B-147972, FEB. 28, 1962

B-147972: Feb 28, 1962

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BIDS WERE OPENED AS SCHEDULED ON NOVEMBER 27. 100 WAS THE LOWEST OF 15 BIDS RECEIVED. AWARD TO YOUR COMPANY WAS NOT RECOMMENDED. IT WAS DETERMINED THAT YOUR COMPANY LACKED ADEQUATE PRODUCTION CAPABILITY. THE MATTER OF YOUR COMPANY'S NONRESPONSIBILITY WAS REFERRED TO THE SMALL BUSINESS OFFICER FOR CONSIDERATION ON DECEMBER 22. CASE IS CONSIDERED CLOSED.'. YOU CONTEND THAT AWARD SHOULD BE MADE TO YOU SINCE YOU ARE THE LOW RESPONSIBLE BIDDER. YOU ALSO CONTEND THAT INITIAL DELIVERIES OF THIS ITEM ARE NOT REQUIRED UNTIL JANUARY 1963. THAT YOU HAVE THE SPACE TO DO THE CONTRACT WORK AND THAT ALL THE CAPITAL EQUIPMENT NECESSARY TO PERFORM UNDER THE CONTRACT CAN BE INSTALLED BY APRIL 1. YOU ALSO STATE THAT YOU HAVE THE NECESSARY FINANCIAL ABILITY TO PERFORM AND THAT YOU HAVE THE TECHNICAL COMPETENCY IN THIS FIELD AND CAN EASILY ADD TO YOUR STAFF IN THE REQUIRED TIME.

B-147972, FEB. 28, 1962

TO BROTHERS CHEMICAL CO.:

BY TELEGRAM AND LETTER DATED JANUARY 16 AND 18, 1962, RESPECTIVELY, YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO ANOTHER BIDDER INVITATION FOR BIDS NO. CML-30-070-62-47, ISSUED BY THE U.S. ARMY CHEMICAL PROCUREMENT DISTRICT, NEW YORK.

THE INVITATION REQUESTED BIDS FOR THE PRODUCTION OF 146,680 UNITS OF ITEM 2, FIN, ROCKET MOTOR, M150, ASSEMBLY. BIDS WERE OPENED AS SCHEDULED ON NOVEMBER 27, 1961, AND IT APPEARS FROM THE RECORD THAT YOUR BID IN THE AGGREGATE TOTAL AMOUNT OF $1,207,100 WAS THE LOWEST OF 15 BIDS RECEIVED.

SINCE THE PROCUREMENT ACTIVITY DETERMINED AFTER A PREAWARD SURVEY OF YOUR COMPANY'S RESPONSIBILITY AS A PROSPECTIVE GOVERNMENT CONTRACTOR, THAT YOUR COMPANY DID NOT MEET THE MINIMUM STANDARDS OF RESPONSIBILITY PRESCRIBED BY SECTION 1-903.1 (II), (III), AND SECTION 1-903.2 (I), (II), OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AWARD TO YOUR COMPANY WAS NOT RECOMMENDED. SPECIFICALLY, IT WAS DETERMINED THAT YOUR COMPANY LACKED ADEQUATE PRODUCTION CAPABILITY, ABILITY TO MEET THE DELIVERY SCHEDULE, AND FINANCIAL STABILITY. IN COMPLIANCE WITH THE PROVISIONS OF SECTION 1-705.6 OF THE ASPR, THE MATTER OF YOUR COMPANY'S NONRESPONSIBILITY WAS REFERRED TO THE SMALL BUSINESS OFFICER FOR CONSIDERATION ON DECEMBER 22, 1961. UNDER DATE OF JANUARY 15, 1962, THE SMALL BUSINESS ADMINISTRATION ADVISED THE PROCUREMENT ACTIVITY THAT:

"BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION, THIS REGIONAL OFFICE HAS DECLINED TO RECOMMEND ISSUANCE OF A CERTIFICATE OF COMPETENCY IN THIS INSTANCE. CASE IS CONSIDERED CLOSED.'

IN YOUR LETTER OF JANUARY 18, 1962, YOU CONTEND THAT AWARD SHOULD BE MADE TO YOU SINCE YOU ARE THE LOW RESPONSIBLE BIDDER, AND BY MAKING AWARD TO YOUR COMPANY THE GOVERNMENT WOULD SAVE THE AMOUNT OF $77,740.40. YOU ALSO CONTEND THAT INITIAL DELIVERIES OF THIS ITEM ARE NOT REQUIRED UNTIL JANUARY 1963, THAT YOU HAVE THE SPACE TO DO THE CONTRACT WORK AND THAT ALL THE CAPITAL EQUIPMENT NECESSARY TO PERFORM UNDER THE CONTRACT CAN BE INSTALLED BY APRIL 1, 1962. YOU ALSO STATE THAT YOU HAVE THE NECESSARY FINANCIAL ABILITY TO PERFORM AND THAT YOU HAVE THE TECHNICAL COMPETENCY IN THIS FIELD AND CAN EASILY ADD TO YOUR STAFF IN THE REQUIRED TIME.

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 APPEAR TO BE SUPPORTED BY THE EVIDENCE OF RECORD AND ARE NEITHER ARBITRARY NOR CAPRICIOUS.

IN VIEW OF THE FOREGOING, WE SEE NO BASIS FOR DISTURBING THE ADMINISTRATIVE ACTION TAKEN IN REJECTING YOUR BID.