B-153723, JUN. 1, 1964

B-153723: Jun 1, 1964

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EUGENE DREXLER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25. REPORTS HAVE BEEN RECEIVED FROM THE DEFENSE SUPPLY AGENCY AND THE SMALL BUSINESS ADMINISTRATION (SBA) RELATIVE TO THE MATTER. DSA-1-64-609 (SOLICITED UNDER SMALL BUSINESS RESTRICTED ADVERTISING) WAS ISSUED ON JANUARY 2. WAS SCHEDULED TO BE OPENED AT 3 P.M. THE INVITATION WAS FOR THE MANUFACTURE AND DELIVERY OF 19. THE BID OPENING DATE WAS EXTENDED UNTIL 11 A.M. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. WAS THE LOW BIDDER. WAS FOR THE TOTAL QUANTITY OF 14. SINCE CLEARY WAS THE LOW BIDDER A PREAWARD PLANT SURVEY WAS REQUESTED. THE SURVEY WAS PERFORMED ON FEBRUARY 13 AND 14. WAS RECOMMENDED FOR A PARTIAL AWARD.

B-153723, JUN. 1, 1964

TO MR. EUGENE DREXLER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1964, WITH ENCLOSURES, PROTESTING, ON BEHALF OF CLEARY UNIFORM CO., INC., AGAINST ANY AWARD UNDER INVITATION FOR BIDS NO. DSA-1-64-609.

PURSUANT TO OUR REQUESTS, REPORTS HAVE BEEN RECEIVED FROM THE DEFENSE SUPPLY AGENCY AND THE SMALL BUSINESS ADMINISTRATION (SBA) RELATIVE TO THE MATTER. INVITATION FOR BIDS NO. DSA-1-64-609 (SOLICITED UNDER SMALL BUSINESS RESTRICTED ADVERTISING) WAS ISSUED ON JANUARY 2, 1964, AND WAS SCHEDULED TO BE OPENED AT 3 P.M., E.S.T., JANUARY 23, 1964. THE INVITATION WAS FOR THE MANUFACTURE AND DELIVERY OF 19,068 ENLISTED MEN'S DARK BLUE, WOOL KERSEY COATS, IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-0-2414C (S AND A) DATED FEBRUARY 5, 1963, WITH DEVIATIONS AS CITED ON PAGE 6 OF THE BID. AMENDMENT NO. 2 ISSUED JANUARY 23, 1964, REDUCED THE TOTAL QUANTITY FROM 19,068 TO 14,675. THE BID OPENING DATE WAS EXTENDED UNTIL 11 A.M., E.S.T., FEBRUARY 3, 1964. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. ON THE BASIS OF THE BIDS RECEIVED AND READ AS OF THE TIME OF BID OPENING CLEARY (A SMALL BUSINESS CONCERN), WAS THE LOW BIDDER. CLEARY'S BID DATED JANUARY 23, 1964, AND TELEGRAPHIC MODIFICATION DATED FEBRUARY 3, 1964, WAS FOR THE TOTAL QUANTITY OF 14,675 AT A UNIT PRICE OF $22.47, WITH PROMPT PAYMENT DISCOUNT OF 1-1/10 PERCENT--- 20 DAYS, F.O.B. VARIOUS DESTINATIONS AS CITED IN THE INVITATION, FOR A TOTAL CONTRACT PRICE OF $344,422.25. HOWEVER, CLEARY CONDITIONED ITS BID AS FOLLOWS: "100 PERCENT OF ALL ITEMS OR NONE.'

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

THE CONTRACTING OFFICER ADVISED THE SBA REPRESENTATIVE THAT IN VIEW OF THE INFORMATION CONTAINED IN THE PREAWARD SURVEY, ALONG WITH THE BIDDER'S INABILITY TO MEET REQUIREMENTS UNDER CONTRACTS DSA-1-2391-64 C AND DSA-1- 2630-64-C ON WHICH NUMEROUS EXTENSION OF DELIVERY FOR CONSIDERATION HAD BEEN GRANTED, IT WAS PROPOSED TO REJECT THE BID OF CLEARY UNDER THE CURRENT INVITATION. THE FOREGOING WAS FORWARDED TO THE SBA REPRESENTATIVE PURSUANT TO ASPR 1-705.6 (A) WHICH PROVIDES THAT IF A BID OF A SMALL BUSINESS FIRM IS TO BE REJECTED FOR NONRESPONSIBILITY AS TO THE CAPACITY OR CREDIT, SBA SHALL BE NOTIFIED OF THE CIRCUMSTANCES SO AS TO PERMIT IT TO ISSUE A CERTIFICATE OF COMPETENCY (COC).

UNDER PROCEDURES ESTABLISHED FOR THE COORDINATION OF INFORMATION BETWEEN THE DEPARTMENT OF DEFENSE AND THE SBA WHERE A PROPOSED ISSUANCE OF A COC INVOLVES $100,000 OR MORE, IT DEVELOPED THAT A TENTATIVE DETERMINATION BY SBA TO ISSUE A CERTIFICATE OF COMPETENCY WAS BASED, AMONG OTHER THINGS, ON ERRONEOUS INFORMATION SUPPLIED TO SBA BY CLEARY RESPECTING THE STATUS OF COMPLETION OF CURRENT GOVERNMENT CONTRACTS HELD BY CLEARY. BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION THE SBA REFUSED THEREAFTER TO RECOMMEND ISSUANCE OF A COC IN THIS INSTANCE AND CLOSED THE CASE. AWARD WAS SUBSEQUENTLY MADE TO PEMBROKE, INC., THE SECOND LOWEST BIDDER.

WE HAVE CONSISTENTLY HELD THAT THE QUESTION AS TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR IS PRIMARILY FOR DETERMINATION BY THE PROCUREMENT AGENCY AND, IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR OF A REASONABLE BASIS FOR THE DETERMINATION AS MADE, WE WILL NOT INTERPOSE ANY OBJECTION TO SUCH DETERMINATION. ON THE RECORD BEFORE US WE FIND NO SUCH EVIDENCE. MOREOVER, WE HAVE HELD THAT THE REFUSAL OF THE SBA TO ISSUE A CERTIFICATE OF COMPETENCY, AS IN THIS CASE, MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE BIDDER CONCERNED. 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. IN THAT CONNECTION WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF THE SBA. THE PROPER AVENUE OF REDRESS IN SUCH CASES IS A REQUEST TO THE SBA FOR RECONSIDERATION OF THE DETERMINATION NOT TO ISSUE THE CERTIFICATE OF COMPETENCY. HOWEVER, THE SBA HAS FURNISHED A REPORT ON THIS MATTER TO THE EFFECT THAT THE CASE FILE DOES NOT SUPPORT A FAVORABLE RECOMMENDATION THAT CLEARY IS CAPABLE OF COMPLYING WITH THE QUALITY, QUANTITY, AND TIME REQUIREMENTS OF THE PROPOSED CONTRACT.

IN VIEW OF THE FOREGOING WE SEE NO BASIS FOR DISTURBING THE AWARD MADE TO PEMBROKE, INC., UNDER INVITATION NO. DSA-1-64-609, AND YOUR PROTEST IS DENIED.