B-155392, NOV. 9, 1964

B-155392: Nov 9, 1964

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YOUR LOW BID UNDER THE INVITATION WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE YOU LACKED THE CAPACITY AND CREDIT TO SATISFACTORILY PERFORM THE CONTEMPLATED CONTRACT. THE SMALL BUSINESS ADMINISTRATION (SBA) WAS REQUESTED TO CONSIDER YOUR RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR FOR THIS PARTICULAR PROCUREMENT. THIS AGENCY IS AUTHORIZED UNDER 15 U.S.C. 637 (B) (7) TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICERS WITH RESPECT TO THE COMPETENCY. WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF THE RESPONSIBILITY AND THE QUALIFICATIONS OF A BIDDER TO PERFORM A CONTRACT AS REQUIRED IS PRIMARILY THAT OF THE PROCUREMENT AGENCY AND NOT OF THIS OFFICE. 33 COMP. THE ENCLOSURES TRANSMITTED WITH YOUR LETTER INDICATE THAT YOUR QUALIFICATIONS TO PERFORM THE CONTEMPLATED CONTRACT WERE CONSIDERED EXTENSIVELY BOTH BY THE PROCUREMENT OFFICE AND SBA.

B-155392, NOV. 9, 1964

TO TAR HEEL ENGINEERING AND MANUFACTURING COMPANY:

WE REFER TO YOUR LETTER OF OCTOBER 30, 1964, WITH ENCLOSURES, WHEREIN YOU REQUEST THAT WE REVIEW THE DECISION OF THE CONTRACTING OFFICER, UNITED STATES ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, DENYING YOUR PROTEST AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. AMC/T/-11-184-64- 397.

APPARENTLY, YOUR LOW BID UNDER THE INVITATION WAS REJECTED BY THE CONTRACTING OFFICER BECAUSE YOU LACKED THE CAPACITY AND CREDIT TO SATISFACTORILY PERFORM THE CONTEMPLATED CONTRACT. PURSUANT TO THE PROCEDURES PRESCRIBED IN PARAGRAPH 1-705.4 OF THE ARMED SERVICES PROCUREMENT REGULATION, THE SMALL BUSINESS ADMINISTRATION (SBA) WAS REQUESTED TO CONSIDER YOUR RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR FOR THIS PARTICULAR PROCUREMENT. THIS AGENCY IS AUTHORIZED UNDER 15 U.S.C. 637 (B) (7) TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICERS WITH RESPECT TO THE COMPETENCY, AS TO CAPACITY AND CREDIT OF ANY SMALL BUSINESS CONCERN TO PERFORM A SPECIFIC CONTRACT. IF SBA DECIDES TO ISSUE SUCH A CERTIFICATE OF COMPETENCY, THIS STATUTE MAKES SUCH CERTIFICATE CONCLUSIVE ON THE PROCUREMENT OFFICER. HOWEVER, IN YOUR CASE, SBA DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY AFTER A REVIEW OF YOUR CAPABILITIES TO PERFORM WITHIN THE TIME LIMITATIONS PRESCRIBED IN THE INVITATION.

WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF THE RESPONSIBILITY AND THE QUALIFICATIONS OF A BIDDER TO PERFORM A CONTRACT AS REQUIRED IS PRIMARILY THAT OF THE PROCUREMENT AGENCY AND NOT OF THIS OFFICE. 33 COMP. GEN. 549. THE ENCLOSURES TRANSMITTED WITH YOUR LETTER INDICATE THAT YOUR QUALIFICATIONS TO PERFORM THE CONTEMPLATED CONTRACT WERE CONSIDERED EXTENSIVELY BOTH BY THE PROCUREMENT OFFICE AND SBA. UNDER SIMILAR CIRCUMSTANCES, WE HAVE HELD THAT THE REFUSAL OF SBA TO ISSUE A CERTIFICATE OF COMPETENCY MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE BIDDER CONCERNED. 39 COMP. GEN. 705. WHEN SBA DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED. OUR OFFICE HAS NO AUTHORITY TO REVIEW SUCH DETERMINATION OF SBA OR TO REQUIRE IT TO ISSUE A CERTIFICATE OF COMPETENCY. B-152831, JANUARY 8, 1964; B-152080, OCTOBER 9, 1963, AND B-151977, OCTOBER 3, 1963. NOR DO WE DISTURB BONA FIDE DETERMINATIONS OF A CONTRACTING OFFICER WHERE, AS HERE, THEY DO NOT APPEAR TO BE EITHER ARBITRARY OR CAPRICIOUS.

ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO DENY YOUR REQUEST THAT WE REVIEW THE DETERMINATION MADE BY THE CONTRACTING OFFICER WITH RESPECT TO YOUR RESPONSIBILITY UNDER THE SUBJECT INVITATION.