B-153617, JUN. 12, 1964

B-153617: Jun 12, 1964

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TO WINDER AIRCRAFT CORPORATION OF FLORIDA: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 25. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT FACILITY CAPABILITY REPORTS WERE REQUESTED FROM ITS ORLANDO CONTRACT MANAGEMENT DISTRICT. PRE-AWARD SURVEYS ACCORDINGLY WERE MADE AND THE RESULTANT FACILITY CAPABILITY REPORTS WERE NEGATIVE UNDER BOTH INVITATIONS AS TO YOUR CAPABILITY AND CREDIT. THE REPORT ON INVITATION NO. 41-608-64-224 SHOWED THAT THE EVALUATION OF THE FACILITY ADVISORY BOARD FOUND YOU TO HAVE A NEGATIVE CAPABILITY IN THE AREA OF FINANCIAL STABILITY BECAUSE OF YOUR LACK OF A WORKING CAPITAL AND IT WAS NOT SHOWN THAT YOU HAD ANY FIRM COMMITMENT FOR FUNDS TO PERFORM THE CONTRACT.

B-153617, JUN. 12, 1964

TO WINDER AIRCRAFT CORPORATION OF FLORIDA:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 25, 1964, WITH ENCLOSURES, PROTESTING THE REJECTION OF LOW BIDS SUBMITTED BY YOU IN RESPONSE TO DEPARTMENT OF THE AIR FORCE INVITATIONS NOS. 41-608-64 224 AND 41-608-64-272. OTHER CORRESPONDENCE FROM YOU, DATED MARCH 13, MARCH 26, APRIL 4, APRIL 13 AND MAY 1, 1964, TOGETHER WITH ALL ENCLOSURES THERETO, PERTAINING TO THE PROTEST, HAS BEEN NOTED.

IN RESPONSE TO INVITATIONS NOS. 41-608-64-224, DATED NOVEMBER 27, 1963, AND 41-608-64-272, DATED DECEMBER 6, 1963, ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA, YOU SUBMITTED LOW BIDS IN THE TOTAL AMOUNTS OF $19,912.56 FOR FURNISHING 57 BOARDING LADDERS AND $10,339.52 FOR FURNISHING 16 WATER SPARGERS, RESPECTIVELY, IN ACCORDANCE WITH THE APPLICABLE SPECIFICATIONS, SCHEDULES, ETC., UNDER EACH INVITATION. ON THE BASIS OF CERTAIN ADVERSE FINDINGS AS TO YOUR CAPABILITIES TO SATISFACTORILY PERFORM UNDER BOTH INVITATIONS FOR BIDS, THE DEPARTMENT OF THE AIR FORCE HAS RECOMMENDED THAT THE SAN ANTONIO AIR MATERIEL AREA BE AUTHORIZED TO PROCEED WITH THE AWARD OF CONTRACTS UNDER THE INVITATIONS WITHOUT REGARD TO THE LOW BIDS SUBMITTED BY YOU.

THE SUBSTANCE OF YOUR PROTEST APPEARS TO BE THAT THE DEPARTMENT OF THE AIR FORCE DISCRIMINATED AGAINST YOU IN CONDUCTING THE SURVEY WHICH RESULTED IN THE ADVERSE FINDINGS. YOU REQUEST THAT CONTRACTS BE AWARDED TO YOU ON THE BASIS OF YOUR LOW BIDS UNDER BOTH INVITATIONS.

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT FACILITY CAPABILITY REPORTS WERE REQUESTED FROM ITS ORLANDO CONTRACT MANAGEMENT DISTRICT,ORLANDO, FLORIDA, AS TO YOUR QUALIFICATIONS TO SATISFACTORILY PERFORM THE PROPOSED CONTRACTS UNDER BOTH OF THE SUBJECT INVITATIONS. PRE-AWARD SURVEYS ACCORDINGLY WERE MADE AND THE RESULTANT FACILITY CAPABILITY REPORTS WERE NEGATIVE UNDER BOTH INVITATIONS AS TO YOUR CAPABILITY AND CREDIT. THE REPORT ON INVITATION NO. 41-608-64-224 SHOWED THAT THE EVALUATION OF THE FACILITY ADVISORY BOARD FOUND YOU TO HAVE A NEGATIVE CAPABILITY IN THE AREA OF FINANCIAL STABILITY BECAUSE OF YOUR LACK OF A WORKING CAPITAL AND IT WAS NOT SHOWN THAT YOU HAD ANY FIRM COMMITMENT FOR FUNDS TO PERFORM THE CONTRACT. FURTHER, THE ADVISORY BOARD FOUND THAT YOU WERE DEFICIENT IN THE AREA OF QUALITY CONTROLS BUT COULD HAVE BEEN APPROVED IN THIS REGARD IF SPECIFICATION MIL-I-45208A COULD BE SUBSTITUTED FOR SPECIFICATION MIL-Q -9858. IT WAS DETERMINED, HOWEVER, THAT SUCH SUBSTITUTION COULD NOT BE PERMITTED. IN ADDITION, UNDER INVITATION NO. 41-608-64-272, THE FACILITY ADVISORY BOARD'S EVALUATION FOUND YOU TO BE DEFICIENT IN REGARD TO FACILITIES, ENGINEERING AND PRODUCTION CAPABILITIES, DELIVERY SCHEDULE, AVAILABILITY OF MATERIAL, ADEQUACY OF QUALITY CONTROL, AND FINANCIAL STABILITY. THE MAJOR REASONS FOR THE NEGATIVE RULING BY THE FACILITY CAPABILITY REPORT TEAM APPEAR TO BE IN THE AREA OF QUALITY CONTROL CAPABILITIES AND FINANCIAL STABILITY, THE REQUIREMENTS FOR WHICH ARE COVERED BY ARMED FORCES PROCUREMENT INSTRUCTIONS 1-905.1 (A) ONE (VI), AND 1-905.1 (A) TWO.

THUS, THE RECORD BEFORE US SHOWS THAT A DETAILED STUDY OF YOUR CAPABILITIES TO SATISFACTORILY PERFORM WAS MADE BY A PRE-AWARD SURVEY WHICH WAS CONDUCTED BY THE DEPARTMENT OF THE AIR FORCE IN ACCORDANCE WITH THE DEPARTMENT'S EXISTING PROCUREMENT REGULATIONS. ALSO, NOT ONLY WERE YOU FOUND TO BE DEFICIENT IN CERTAIN AREAS UNDER INVITATIONS NOS. 41-608- 64-224 AND 41-608-64-272, BUT THE AIR FORCE REPORTS THAT ITS ORLANDO CONTRACT MANAGEMENT DISTRICT HAS GIVEN YOUR CORPORATION NEGATIVE FACILITY CAPABILITY REPORTS ON AT LEAST FIVE OTHER PROPOSED PROCUREMENTS WITHIN THE PAST FOUR YEARS. THE AIR FORCE FURTHER REPORTS THAT YOUR FINANCIAL RESPONSIBILITY HAS BEEN TOTALLY UNACCEPTABLE AND, IF FOR NO OTHER REASON, UNLESS AN IRONCLAD GUARANTEE IS GIVEN BY A REPUTABLE SOURCE, FINANCES WOULD BE A RESTRICTION IN APPROVING AWARDS TO YOU. FURTHER, IT IS NOTED THAT IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION 1-705 (B) THE MATTER OF YOUR QUALIFICATIONS WAS REFERRED BY THE AIR FORCE TO THE SMALL BUSINESS ADMINISTRATION REGIONAL OFFICE, ATLANTA, GEORGIA, BUT THAT YOU DECLINED TO APPLY FOR A CERTIFICATE OF COMPETENCY AND, THEREFORE, BY TELEGRAM DATED FEBRUARY 13, 1964, THE REGIONAL OFFICE NOTIFIED THE AIR FORCE THAT IT CONSIDERED THE CASE CLOSED.

IT IS A SETTLED RULE THAT THE QUESTION AS TO THE RESPONSIBILITY AND CAPABILITY OF A BIDDER ON A PROPOSED GOVERNMENT CONTRACT IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY--- IN THIS CASE, THE DEPARTMENT OF THE AIR FORCE--- AND SUCH DETERMINATION WHEN MADE WILL NOT BE QUESTIONED BY THE COURTS OR OUR OFFICE, IN THE ABSENCE OF A SHOWING OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE O- BRIEN V. CARNEY, 6 F.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 96; 20 COMP. GEN. 862; 37 ID. 430, 435. IN THIS REGARD, THERE HAS ALSO BEEN CONSIDERED YOUR RECENT LETTER DATED MAY 29, 1964, AND ALL ENCLOSURES, WHICH WAS ADDRESSED TO MR. WILLIAM T. MCINARNAY, COUNSEL, UNITED STATES SENATE SELECT COMMITTEE ON SMALL BUSINESS, BUT ON THE RECORD AS A WHOLE BEFORE US, REFLECTING THE CIRCUMSTANCES SET FORTH ABOVE, IT MUST BE CONCLUDED THAT THERE IS NO INDICATION OF THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION MADE BY THE DEPARTMENT OF THE AIR FORCE IN THE MATTER.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR DISTURBING THE ADMINISTRATIVE ACTION TAKEN BY THE DEPARTMENT OF THE AIR FORCE UNDER INVITATIONS NOS. 41- 608-64-224 AND 41-608-64-272.