B-153349, MAY 15, 1964

B-153349: May 15, 1964

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TO KAPLAN AND KAPLAN: THIS IS IN RESPONSE TO YOUR LETTER OF JANUARY 14. THAT THE WALTHAM PRECISION INSTRUMENT COMPANY WAS A NONRESPONSIBLE PROSPECTIVE CONTRACTOR UNDER REQUEST FOR PROPOSALS NO. WE HAVE REVIEWED THE DOCUMENTED FILE RELATIVE TO THE DETERMINATION OF NONRESPONSIBILITY AND WE FIND NO LEGAL BASIS TO QUESTION THE DETERMINATION OR THE AWARD MADE UNDER THE REQUEST FOR PROPOSALS. IT WAS DETERMINED THAT WALTHAM WAS DEFICIENT IN THE AREAS OF PRODUCTION AND FINANCIAL ABILITY. THE DETAILS OF THE ADMINISTRATIVE POSITION ON WALTHAM'S RESPONSIBILITY WERE CONTAINED IN A LETTER DATED DECEMBER 12. THE AUTHORITIES ARE IN AGREEMENT THAT THE OFFICERS IN WHOM THE POWER IS VESTED TO DETERMINE . RESPONSIBILITY" MUST DETERMINE THE FACTS AND SUCH DETERMINATION CANNOT BE SET ASIDE UNLESS THE ACTION WAS ARBITRARY.

B-153349, MAY 15, 1964

TO KAPLAN AND KAPLAN:

THIS IS IN RESPONSE TO YOUR LETTER OF JANUARY 14, 1964, WITH ENCLOSURE, PROTESTING AGAINST THE DETERMINATION MADE BY THE AMMUNITION PROCUREMENT AND SUPPLY AGENCY, UNITED STATES ARMY MATERIEL COMMAND, THAT THE WALTHAM PRECISION INSTRUMENT COMPANY WAS A NONRESPONSIBLE PROSPECTIVE CONTRACTOR UNDER REQUEST FOR PROPOSALS NO. APC 322-63.

WE HAVE REVIEWED THE DOCUMENTED FILE RELATIVE TO THE DETERMINATION OF NONRESPONSIBILITY AND WE FIND NO LEGAL BASIS TO QUESTION THE DETERMINATION OR THE AWARD MADE UNDER THE REQUEST FOR PROPOSALS.

AS TO THIS PARTICULAR PROCUREMENT, IT WAS DETERMINED THAT WALTHAM WAS DEFICIENT IN THE AREAS OF PRODUCTION AND FINANCIAL ABILITY. THE DETAILS OF THE ADMINISTRATIVE POSITION ON WALTHAM'S RESPONSIBILITY WERE CONTAINED IN A LETTER DATED DECEMBER 12, 1963, FROM THE PROCUREMENT AGENCY TO YOU AND NEED NOT BE REPEATED HERE.

IN REGARD TO THE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, THE AUTHORITIES ARE IN AGREEMENT THAT THE OFFICERS IN WHOM THE POWER IS VESTED TO DETERMINE ,RESPONSIBILITY" MUST DETERMINE THE FACTS AND SUCH DETERMINATION CANNOT BE SET ASIDE UNLESS THE ACTION WAS ARBITRARY, CAPRICIOUS OR FRAUDULENT. THE DETERMINATION OF THE LOWEST RESPONSIBLE BIDDER IS TO BE MADE BY THE AUTHORIZED OFFICIAL OF THE CONTRACTING AGENCY, WHO IS REQUIRED TO ACT FAIRLY UPON REASONABLE INFORMATION WHICH SUPPORTS THE DETERMINATION MADE. SEE MCQUILLIN, MUNICIPAL CORPORATIONS, 3D ED., VOL. 10, SEC. 29.73, AND THE CASES THERE CITED; 38 COMP. GEN. 131; 33 ID. 549; BROWN V. CITY OF PHOENIX, 272 P.2D 358; MCNICHOLS V. CITY AND COUNTY OF DENVER, 274 P.2D 317. THUS, THE ONLY QUESTION FOR CONSIDERATION IS WHETHER THE DETERMINATION ADMINISTRATIVELY MADE OF WALTHAM'S NONRESPONSIBILITY MEETS THE CRITERIA DISCUSSED. PARAGRAPH 1-902 OF THE ARMED SERVICES PROCUREMENT REGULATION(ASPR) PROVIDES THAT PURCHASES SHALL BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. ASPR 1 904.1 REQUIRES THE CONTRACTING OFFICER TO MAKE A DECISION REGARDING THE RESPONSIBILITY OF THE PROSPECTIVE CONTRACTOR. THIS REGULATION FURTHER PROVIDES THAT THIS DETERMINATION OF RESPONSIBILITY IS TO BE MADE WITHIN THE FRAMEWORK OF ASPR 1-902 AND ASPR 1-903. SEE ASPR 1 903 WHICH PROVIDES FOR MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS, AND ASPR 1- 903.1 (I) WHICH PROVIDES THAT A PROSPECTIVE CONTRACTOR MUST HAVE ADEQUATE FINANCIAL RESOURCES AS REQUIRED FOR PERFORMANCE OF THE CONTRACT. ALSO, ASPR 1-903.2 IMPOSES ADDITIONAL STANDARDS FOR PRODUCTION WHICH MUST BE MET BY PROSPECTIVE CONTRACTORS. THE PRE-AWARD SURVEY MADE OF WALTHAM'S CAPABILITIES REVEALED THAT IT DID NOT MEET THESE MINIMUM STANDARDS. WHILE WALTHAM INDICATED IN ITS PROPOSAL THAT IT WAS SMALL BUSINESS, THE SMALL BUSINESS ADMINISTRATION (SBA) ADVISED THE PROCUREMENT AGENCY THAT WALTHAM WAS NO LONGER A SMALL BUSINESS CONCERN. HENCE, THE MATTER OF WALTHAM'S CAPACITY WAS NOT REFERRED TO SBA AND ASPR 1-705.6 (B) FOR CONSIDERATION WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED. WE ARE ADVISED THAT THE DETERMINATION OF NONRESPONSIBILITY MADE HERE DID NOT ADVERSELY AFFECT WALTHAM INSOFAR AS OTHER PROCUREMENTS WERE CONCERNED. WALTHAM HAS BEEN GIVEN THE OPPORTUNITY TO BID ON AT LEAST THREE AMMUNITION PROCUREMENT AND SUPPLY AGENCY PROCUREMENTS AND ON JANUARY 17, 1964, WAS AWARDED A CONTRACT FOR THE PRODUCTION OF FUZES. IT THUS MAY BE CONCLUDED THAT A DETERMINATION OF NONRESPONSIBILITY ON A PARTICULAR PROCUREMENT IS NOT A PRECEDENT WITH RESPECT TO OTHER PROCUREMENTS WHICH A BIDDER MAY BE QUALIFIED TO PERFORM SATISFACTORILY.

ON THE BASIS OF THE RECORD BEFORE US, WE CONCLUDE THAT THE DETERMINATION OF THE CONTRACTING OFFICER WAS REASONABLE AND IN ACCORD WITH THE CITED AUTHORITIES. ONCE THIS REQUIREMENT IS SATISFIED, WE WILL NOT QUESTION OR LOOK BEHIND A DETERMINATION OF RESPONSIBILITY MADE BY THE CONTRACTING OFFICER.