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B-150271, MAR. 19, 1963

B-150271 Mar 19, 1963
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TO THE SPECIALTY ELECTRONICS DEVELOPMENT CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20. IT WAS CONSIDERED THAT YOUR PROPOSED DESIGN WOULD NOT PROVIDE A SATISFACTORY METHOD FOR MEASURING WIND DIRECTION AND THAT INSUFFICIENT INFORMATION HAD BEEN FURNISHED IN REGARD TO THE TRANSITOR CIRCUITY INVOLVED IN YOUR PROPOSAL. YOUR VARIOUS CONTENTIONS IN THE MATTER WERE FULLY CONSIDERED IN OUR DECISION OF FEBRUARY 4. IT WAS CONCLUDED THAT THE FACTS OF THE CASE REASONABLY COULD NOT BE REGARDED AS INDICATING ANY ARBITRARY ACTION BY THE WEATHER BUREAU IN THE MATTER. IT IS NOW CONTENDED THAT. SINCE YOU ARE A SMALL BUSINESS CONCERN. IT WOULD HAVE BEEN IMPROPER FOR THE WEATHER BUREAU TO REJECT YOUR PROPOSAL WITHOUT FIRST REFERRING THE MATTER TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION AS TO WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED IN FAVOR OF YOUR COMPANY.

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B-150271, MAR. 19, 1963

TO THE SPECIALTY ELECTRONICS DEVELOPMENT CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1963, COMMENTING ON OUR DECISION TO YOU OF FEBRUARY 4, 1963, WHICH DENIED YOUR PROTEST AGAINST A NEGOTIATED CONTRACT AWARD TO CARDION ELECTRONICS, INCORPORATED, UNDER REQUEST FOR PROPOSALS NO. 2-62, ISSUED BY THE WEATHER BUREAU, DEPARTMENT OF COMMERCE, COVERING A REQUIREMENT FOR A MARINE AUTOMATIC METEOROLOGICAL OBSERVING STATION.

THE WEATHER BUREAU DETERMINED THAT IT WOULD BE MORE DESIRABLE TO ACCEPT THE PROPOSAL SUBMITTED BY CARDION ELECTRONICS, INCORPORATED, THAN TO ACCEPT YOUR PROPOSAL. IT WAS CONSIDERED THAT YOUR PROPOSED DESIGN WOULD NOT PROVIDE A SATISFACTORY METHOD FOR MEASURING WIND DIRECTION AND THAT INSUFFICIENT INFORMATION HAD BEEN FURNISHED IN REGARD TO THE TRANSITOR CIRCUITY INVOLVED IN YOUR PROPOSAL. YOUR VARIOUS CONTENTIONS IN THE MATTER WERE FULLY CONSIDERED IN OUR DECISION OF FEBRUARY 4, 1963, AND IT WAS CONCLUDED THAT THE FACTS OF THE CASE REASONABLY COULD NOT BE REGARDED AS INDICATING ANY ARBITRARY ACTION BY THE WEATHER BUREAU IN THE MATTER.

WITH REFERENCE TO YOUR REITERATION OF THE CONTENTION THAT THE WEATHER BUREAU FAILED TO CONSIDER AN EXPLANATION OF YOUR PROPOSED DESIGN, OUR RECORDS INDICATE THAT THE BUREAU CONCLUDED THAT NEITHER THE DESIGN SUBMITTED WITH YOUR PROPOSAL, NOR THE DESIGN OF SUCH PROPOSAL AS AMENDED OR EXPLAINED BY YOU, WOULD ACCOMPLISH A SATISFACTORY RESULT.

IT IS NOW CONTENDED THAT, SINCE YOU ARE A SMALL BUSINESS CONCERN, IT WOULD HAVE BEEN IMPROPER FOR THE WEATHER BUREAU TO REJECT YOUR PROPOSAL WITHOUT FIRST REFERRING THE MATTER TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION AS TO WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED IN FAVOR OF YOUR COMPANY.

THE CONGRESS HAS SPECIFICALLY LIMITED THE RIGHT OF PROCURING AGENCIES TO DETERMINE THE RESPONSIBILITY OF SMALL BUSINESS CONCERNS BY GIVING THE SMALL BUSINESS ADMINISTRATION THE AUTHORITY TO MAKE FINAL DETERMINATIONS AS TO THOSE ELEMENTS OF RESPONSIBILITY INCLUDED IN THE TERMS "CAPACITY" AND "CREDIT.' HOWEVER, THE SMALL BUSINESS CERTIFICATE OF COMPETENCY PROGRAM HAS NO APPLICABILITY TO A SITUATION WHERE, AS HERE, THE CONTRACTING AGENCY HAS DETERMINED THAT A PROPOSAL OF A SMALL BUSINESS CONCERN SHOULD BE REJECTED AS NOT MEETING THE ENGINEERING REQUIREMENTS OF EQUIPMENT WHICH THE GOVERNMENT PROPOSES TO PURCHASE. SUCH A DETERMINATION OBVIOUSLY WOULD BE RELATED TO A QUESTION AS TO THE RESPONSIVENESS OF THE PROPOSAL RATHER THAN TO A QUESTION AS TO WHETHER THE BIDDER POSSESSES THE NECESSARY CAPACITY AND CREDIT TO QUALIFY AS A RESPONSIBLE PROSPECTIVE CONTRACTOR. CONSEQUENTLY, IT IS OUR OPINION THAT THE WEATHER BUREAU WAS NOT REQUIRED BY THE PROVISIONS OF THE SMALL BUSINESS ACT OR IMPLEMENTING ADMINISTRATIVE REGULATIONS TO NOTIFY THE SMALL BUSINESS ADMINISTRATION OF THE PROPOSED REJECTION OF YOUR PROPOSAL.

YOU ALSO SUGGEST THAT THE PROPRIETY OF THE CONTRACT AWARD IN THIS CASE IS SUBJECT TO SERIOUS QUESTION AND REVIEW BECAUSE YOU HAVE BEEN IN CONTACT WITH A NUMBER OF YOUR SUPPLIERS SINCE THE PROPOSAL OF CARDION ELECTRONICS, INCORPORATED, WAS ACCEPTED BY THE WEATHER BUREAU AND THIS HAS LED TO A BELIEF ON YOUR PART THAT THE STATION TO BE FURNISHED BY THE CONTRACTOR WILL BE BUILT AROUND YOUR BASIC SYSTEM. YOU STATE THAT ONE COMPANY HAS REQUESTED YOUR PERMISSION TO USE YOUR TOOLING FOR MANUFACTURE OF THE HULL; THAT ANOTHER COMPANY REQUESTED A QUOTATION ON YOUR BAROMETRIC READ-OUT SYSTEM; AND THAT THE CONTRACTOR APPEARS TO BE PLANNING TO USE MANY OF YOUR BASIC CONCEPTS AND, IN FACT, ACTUAL EQUIPMENTS. YOU INDICATE THAT IT IS THEREFORE DIFFICULT FOR YOU, AS THE MANUFACTURER OF THE PRESENT MAMOS SYSTEM, TO UNDERSTAND WHY THE PROPOSAL OF A FIRM WHICH HAS HAD NO EXPERIENCE IN THE FIELD WAS CONSIDERED BY THE WEATHER BUREAU TO BE MORE ACCEPTABLE THAN THE PROPOSAL WHICH YOU SUBMITTED.

AS EXPLAINED IN OUR DECISION OF FEBRUARY 4, 1963, THE QUESTION AS TO THE TECHNICAL SUFFICIENCY OF THE TWO PROPOSALS WAS CLEARLY A MATTER FOR DECISION BY THE ENGINEERING STAFF OF THE WEATHER BUREAU AND NOT BY OUR OFFICE. FURTHERMORE, REGARDLESS OF YOUR EXPERIENCE IN THE PARTICULAR FIELD, THE GOVERNMENT COULD NOT HAVE BEEN PLACED IN THE POSITION OF HAVING TO ACCEPT YOUR PROPOSAL IF IT DETERMINED THAT YOUR DESIGN WOULD NOT ACCOMPLISH A SATISFACTORY RESULT INSOFAR AS THE CURRENT LEGITIMATE NEEDS OF THE WEATHER BUREAU ARE CONCERNED.

WE HAVE CONSISTENTLY ADHERED TO THE POLICY THAT AN ADMINISTRATIVE DETERMINATION THAT A PARTICULAR FIRM HAS THE TECHNICAL ABILITY TO PERFORM A SPECIFIC GOVERNMENT CONTRACT SHOULD NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR SUCH DETERMINATION. HENCE, WITHOUT CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY, WE MUST ASSUME THAT CARDION ELECTRONICS, INCORPORATED, IS CAPABLE OF DEVELOPING A METEOROLOGICAL STATION WHICH WILL FULLY MEET THE DETAILED REQUIREMENTS OF THE DESIGN AS SET FORTH IN THE ACCEPTED PROPOSAL OF THAT COMPANY.

APPARENTLY IT WAS NEVER CONTEMPLATED THAT THE CONTRACTOR WOULD BE PRECLUDED FROM SUBCONTRACTING FOR THE MANUFACTURE OF COMPONENT EQUIPMENTS OR THE HULL FOR THE STATION AND IT IS, OF COURSE, POSSIBLE THAT THE CONTRACTOR WILL USE SOME EQUIPMENTS OF YOUR MANUFACTURE OR SIMILAR ITEMS WHICH HAVE BEEN DEVELOPED BY OTHER CONCERNS. IT WILL BE FOR THE WEATHER BUREAU TO DETERMINE WHETHER THE END PRODUCT MEETS THE CONTRACT REQUIREMENTS AND, ALTHOUGH YOU MAY SUSPECT THAT THE METEOROLOGICAL STATION WILL NOT BE SUPERIOR TO YOUR PRESENT SYSTEM, WE CANNOT AGREE THAT SUCH SUSPICION AND YOUR STATED REASONS THEREFOR ARE SUFFICIENT TO JUSTIFY FURTHER ACTION BY OUR OFFICE IN THE MATTER AT THIS TIME. HOWEVER, A COPY OF YOUR LETTER IS BEING FURNISHED TO THE DEPARTMENT OF COMMERCE FOR CONSIDERATION IN CONNECTION WITH THE ADMINISTRATION OF THE CONTRACT AWARDED TO CARDION ELECTRONICS, INCORPORATED.

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