B-155158, JAN. 28, 1965

B-155158: Jan 28, 1965

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IT WAS FURTHER PROVIDED THAT AWARD "WILL BE MADE TO THAT RESPONSIBLE OFFEROR WHOSE PROPOSAL IS MOST ADVANTAGEOUS TO THE GOVERNMENT. EIGHT OFFERS WERE RECEIVED ON AUGUST 14. WERE: TABLE BASE INDUSTRIES $1. 232.70 A FACILITY CAPACITY SURVEY WAS CONDUCTED OF MATTERS RELATING TO YOUR RESPONSIBILITY AS A PROSPECTIVE GOVERNMENT CONTRACTOR PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-905.4. IT WAS CONCLUDED BY THE DEPARTMENT. IT IS OUR CONCLUSION THAT THE LACK OF CURRENT ADEQUATE FACILITIES. THIS LACK OF CURRENT FACTUAL OPERATIONAL INFORMATION WHICH CREATES DOUBT AS TO THE PRODUCTIVE CAPABILITY OF THE COMPANY RESULTS IN THE DETERMINATION THAT THE FCR IS NEGATIVE.'. THE CONTRACTING OFFICER DETERMINED AND JUSTIFIED THE CONCLUSION THAT YOU WERE NONRESPONSIBLE FOR THE PURPOSES OF THE INSTANT PROCUREMENT.

B-155158, JAN. 28, 1965

TO BASE INDUSTRIES, INC.:

BY LETTER DATED SEPTEMBER 11, 1964, YOU PROTESTED AGAINST ANY AWARD BY THE DEPARTMENT OF THE AIR FORCE TO AN OFFEROR OTHER THAN YOURSELVES UNDER REQUEST FOR PROPOSALS NO. OCPAS-8923, ISSUED ON JULY 14, 1964, BY THE OKLAHOMA CITY AIR MATERIAL AREA, TINKER AIR FORCE BASE, OKLAHOMA, COVERING IRAN AND MODIFICATION WORK ON 46 C-97G TYPE AIRCRAFT IN ACCORDANCE WITH CERTAIN WORK SPECIFICATIONS, EXHIBITS, AND TECHNICAL ORDERS APPLICABLE THERETO.

THE REQUEST FOR PROPOSALS ADVISED PROSPECTIVE OFFERORS THAT CERTAIN TECHNICAL, FINANCIAL, AND OTHER CAPABILITY MATTERS MAY BE EVALUATED BY SURVEY TEAMS TO DETERMINE THE RESPONSIBILITY OF OTHERWISE ACCEPTABLE OFFERORS. IT WAS FURTHER PROVIDED THAT AWARD "WILL BE MADE TO THAT RESPONSIBLE OFFEROR WHOSE PROPOSAL IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.' THE CONTRACT CONTEMPLATED BY THE REQUEST FOR PROPOSALS PROVIDES FOR FIRM FIXED PRICES FOR VARIOUS ITEMS OF REPAIR AND MODIFICATION WORK AND FOR REIMBURSEMENT FOR THE COST OF CERTAIN MATERIALS USED IN PERFORMING SUCH WORK.

EIGHT OFFERS WERE RECEIVED ON AUGUST 14, 1964, AND THE FIVE LOWEST OFFERS ON LABOR COSTS BASIS, EXCLUSIVE OF REIMBURSABLE MATERIAL COSTS, WERE:

TABLE

BASE INDUSTRIES $1,226,865.22

HAYES 1,339,156.48

AMERICAN AUTOMOTIVE 1,372,498.60

TEMCO 1,400,711.34

DYNALECTRON 1,428,232.70

A FACILITY CAPACITY SURVEY WAS CONDUCTED OF MATTERS RELATING TO YOUR RESPONSIBILITY AS A PROSPECTIVE GOVERNMENT CONTRACTOR PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-905.4. IT WAS CONCLUDED BY THE DEPARTMENT, AFTER A REVIEW AND ANALYSIS OF THE FACILITY CAPABILITY REPORT (FCR) THAT:

"AS A RESULT OF OUR REVIEW, IT IS OUR CONCLUSION THAT THE LACK OF CURRENT ADEQUATE FACILITIES, THE LACK OF A CURRENTLY OPERATING MANAGEMENT ORGANIZATION, THE LACK OF A LABOR FORCE CURRENTLY EMPLOYED BY THE COMPANY, AND THE LACK OF CURRENTLY OPERATING BUSINESS PRACTICES FOR THIS TYPE OF WORK CREATE RISK FACTORS OF A MAGNITUDE WHICH PREVENT A FINDING THAT THIS COMPANY HAS DEMONSTRATED AFFIRMATIVELY THEIR CAPABILITY TO FULFILL SUCCESSFULLY THE CONTEMPLATED CONTRACT. THIS LACK OF CURRENT FACTUAL OPERATIONAL INFORMATION WHICH CREATES DOUBT AS TO THE PRODUCTIVE CAPABILITY OF THE COMPANY RESULTS IN THE DETERMINATION THAT THE FCR IS NEGATIVE.'

THEREAFTER, AS REQUIRED BY ASPR 1-904.1, THE CONTRACTING OFFICER DETERMINED AND JUSTIFIED THE CONCLUSION THAT YOU WERE NONRESPONSIBLE FOR THE PURPOSES OF THE INSTANT PROCUREMENT. AWARD WAS THEREFORE MADE TO THE NEXT LOW RESPONSIVE, RESPONSIBLE OFFEROR, THE HAYES INTERNATIONAL CORPORATION.

IN ACCORDANCE WITH ASPR 1-704.5, THE DETERMINATION AS TO YOUR FIRM'S RESPONSIBILITY WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION WHETHER A CERTIFICATE OF COMPETENCY AS TO YOUR CAPACITY TO PERFORM THE CONTRACT WORK SHOULD BE ISSUED. UNDER DATE OF DECEMBER 4, 1964, SBA ADVISED THE CONTRACTING OFFICER THAT IT DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY TO YOUR FIRM AFTER A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION.

IN THESE CIRCUMSTANCES, WE HAVE HELD THAT THE REFUSAL OF SBA TO ISSUE A CERTIFICATE OF COMPETENCY AS TO THE CAPACITY OF A SMALL BUSINESS OFFEROR MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE OFFEROR CONCERNED. 39 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. WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF SBA OR REQUIRE IT TO ISSUE A CERTIFICATE OF COMPETENCY (15 U.S.C. 637 (B) (7) ). NOR DO WE DISTURB THE DETERMINATIONS OF A CONTRACTING OFFICER WHERE, AS HERE, THEY DO NOT APPEAR TO BE EITHER ARBITRARY OR CAPRICIOUS. YOUR PROTEST IS THEREFORE DENIED.