B-150819, APR. 24, 1963

B-150819: Apr 24, 1963

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 12. THE INVITATION WAS OPENED ON NOVEMBER 28. THE ONLY BIDDER ON SIGNAL GENERATORS WAS WALTHAM. A FACILITIES CAPABILITY REPORT WAS REQUESTED BY THE CONTRACTING OFFICER TO ASSIST HIM IN MAKING A DETERMINATION AS TO WHETHER WALTHAM WAS RESPONSIBLE WITHIN THE CRITERIA PRESCRIBED BY ASPR 1-903. A NEGATIVE REPORT ON THE FINANCIAL CAPACITY OF THE BIDDER WAS RECEIVED BY THE CONTRACTING OFFICER. THE SMALL BUSINESS ADMINISTRATION WAS REQUESTED TO INVESTIGATE WALTHAM'S COMPETENCY. WE ARE ADVISED THAT YOU CONTACTED THE PROCUREMENT AGENCY ON JANUARY 11. ANY BID SUBMITTED BY YOU WOULD HAVE TO BE REGARDED AS AN INELIGIBLE LATE BID. YOU WERE ALLOWED TO SUBMIT A PROPOSAL TO FURNISH THE ITEMS ON THE BASIS THAT YOUR PROPOSAL COULD ONLY BE CONSIDERED IF NO AWARD WOULD BE MADE UNDER THE INVITATION.

B-150819, APR. 24, 1963

TO ADVANCED MEASUREMENT INSTRUMENTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF FEBRUARY 12, 1963, PROTESTING AGAINST THE AWARD OF A CONTRACT TO THE WALTHAM ELECTRONICS CORPORATION UNDER INVITATION FOR BIDS NO. 04-606-63-64, ISSUED BY THE SACRAMENTO AIR MATERIEL AREA ON NOVEMBER 6, 1962, FOR SIGNAL GENERATORS.

THE INVITATION WAS OPENED ON NOVEMBER 28, 1962, AND THE ONLY BIDDER ON SIGNAL GENERATORS WAS WALTHAM. PURSUANT TO ASPR 1-905, A FACILITIES CAPABILITY REPORT WAS REQUESTED BY THE CONTRACTING OFFICER TO ASSIST HIM IN MAKING A DETERMINATION AS TO WHETHER WALTHAM WAS RESPONSIBLE WITHIN THE CRITERIA PRESCRIBED BY ASPR 1-903. ON JANUARY 2, 1963, A NEGATIVE REPORT ON THE FINANCIAL CAPACITY OF THE BIDDER WAS RECEIVED BY THE CONTRACTING OFFICER. AS REQUIRED BY ASPR 1-705.6 (B), THE SMALL BUSINESS ADMINISTRATION WAS REQUESTED TO INVESTIGATE WALTHAM'S COMPETENCY. LETTER DATED JANUARY 9, 1963, THAT AGENCY DECLINED TO CERTIFY AS TO WALTHAM'S COMPETENCY. WE ARE ADVISED THAT YOU CONTACTED THE PROCUREMENT AGENCY ON JANUARY 11, 1963, AND REQUESTED AN OPPORTUNITY TO SUBMIT A BID UNDER THE INVITATION. HOWEVER, AS THE DATE SET FOR OPENING OF BIDS HAD LONG SINCE EXPIRED, ANY BID SUBMITTED BY YOU WOULD HAVE TO BE REGARDED AS AN INELIGIBLE LATE BID. THEREUPON, YOU WERE ALLOWED TO SUBMIT A PROPOSAL TO FURNISH THE ITEMS ON THE BASIS THAT YOUR PROPOSAL COULD ONLY BE CONSIDERED IF NO AWARD WOULD BE MADE UNDER THE INVITATION.

UPON BEING NOTIFIED OF AN ADVERSE REPORT OF FINANCIAL ABILITY, WALTHAM SOUGHT AND OBTAINED ADDITIONAL FINANCIAL RESOURCES AND REQUESTED THAT THE PROCUREMENT AGENCY REVIEW THE NEGATIVE REPORT ON ITS CAPABILITIES. THIS REVIEW WAS CONDUCTED BY THE AIR FORCE BOSTON CONTRACT MANAGEMENT DISTRICT AND ON FEBRUARY 8, 1963, A FAVORABLE CAPABILITIES REPORT ON WALTHAM WAS ISSUED. SINCE WALTHAM HAD BEEN DETERMINED TO BE A RESPONSIVE AND RESPONSIBLE BIDDER UNDER THE INVITATION, AWARD OF A CONTRACT TO THAT FIRM WAS AUTHORIZED ON MARCH 15, 1963. IN VIEW THEREOF, YOUR UNSOLICITED PROPOSAL WAS RETURNED TO YOU WITHOUT ANY ACTION THEREON BY THE PROCUREMENT AGENCY.

YOUR PROTEST AGAINST AWARD TO WALTHAM IS BASED UPON THE NEGATIVE CAPABILITIES REPORT AND THE REFUSAL OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY.

THE DEFICIENCIES IN THE FINANCIAL RESOURCES OF WALTHAM, WHICH RESULTED IN THE NEGATIVE CAPABILITIES REPORT AND DENIAL OF A CERTIFICATE OF COMPETENCY, WERE REMEDIED WHEN WALTHAM SECURED THE NECESSARY FINANCIAL BACKING FOR PERFORMANCE OF THE ADVERTISED CONTRACT. SINCE, UPON REVIEW, WALTHAM WAS FOUND TO BE ENTIRELY RESPONSIBLE, THERE WAS NO NEED, NOR ANY REGULATORY REQUIREMENT, TO REFER THE MATTER AGAIN TO THE SMALL BUSINESS ADMINISTRATION. WE HAVE CONSISTENTLY HELD THAT THE ADMINISTRATIVE DETERMINATION OF THE RESPONSIBILITY OF A SUCCESSFUL BIDDER WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF EVIDENCE THAT THE DETERMINATION WAS ARBITRARY OR CAPRICIOUS. SEE 39 COMP. GEN. 684. CLEARLY, THERE WOULD HAVE BEEN NO AUTHORITY TO CONSIDER YOUR PROPOSAL AS ELIGIBLE FOR AWARD UNDER THE ADVERTISED INVITATION. UNDER 10 U.S.C. 2305 (C), AWARDS OF CONTRACTS ARE REQUIRED TO BE MADE "TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.'

ACCORDINGLY, AND SINCE NO LEGAL BASIS EXISTS TO QUESTION THE ADMINISTRATIVE DETERMINATION TO ..END :