B-156144, JUN. 9, 1965

B-156144: Jun 9, 1965

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TO AERO-SYSTEMS INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12. WAS DISTRIBUTED ON JULY 15. THE LOW OFFEROR WAS PERMITTED TO WITHDRAW ITS PROPOSAL BECAUSE IT DID NOT HAVE THE CAPACITY TO PERFORM THE REQUIRED SERVICES. THE DALLAS CONTRACT MANAGEMENT DISTRICT WAS REQUESTED TO PERFORM A PREAWARD SURVEY OR FACILITY CAPABILITY REPORT (FCR) OF YOUR COMPANY WHICH RESULTED IN A NEGATIVE FCR PRIMARILY FOR THE REASON THAT IT DID NOT HAVE ON HAND. CERTAIN SPECIFIED TOOLING AND EQUIPMENT NECESSARY TO PERFORM THE CALIBRATION OF THE INSTRUMENTS IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED BY THE APPLICABLE TECHNICAL ORDERS AS WAS SPECIFICALLY REQUIRED BY THE REQUEST FOR PROPOSALS.

B-156144, JUN. 9, 1965

TO AERO-SYSTEMS INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1965, WITH ENCLOSURE, PROTESTING THE AWARD OF A CONTRACT UNDER UNITED STATES AIR FORCE REQUEST FOR PROPOSALS NO. 36-600-65-5059, TO UNIVERSAL DYNAMIC, INC., OF OKLAHOMA CITY, OKLAHOMA.

THE REQUEST FOR PROPOSALS, COVERING THE OVERHAUL OF DIRECTIONAL GYRO INDICATORS UTILIZED IN VARIOUS AIRCRAFT, WAS DISTRIBUTED ON JULY 15, 1964, TO 16 SOURCES WITH PROPOSALS DUE IN AUGUST 1964, THE PROCUREMENT BEING SET ASIDE FOR SMALL BUSINESS. THE LOW OFFEROR WAS PERMITTED TO WITHDRAW ITS PROPOSAL BECAUSE IT DID NOT HAVE THE CAPACITY TO PERFORM THE REQUIRED SERVICES. YOUR FIRM SUBMITTED THE NEXT LOWEST ACCEPTABLE PROPOSAL FROM A SMALL BUSINESS FIRM. THE DALLAS CONTRACT MANAGEMENT DISTRICT WAS REQUESTED TO PERFORM A PREAWARD SURVEY OR FACILITY CAPABILITY REPORT (FCR) OF YOUR COMPANY WHICH RESULTED IN A NEGATIVE FCR PRIMARILY FOR THE REASON THAT IT DID NOT HAVE ON HAND, AND REFUSED TO ACQUIRE, CERTAIN SPECIFIED TOOLING AND EQUIPMENT NECESSARY TO PERFORM THE CALIBRATION OF THE INSTRUMENTS IN ACCORDANCE WITH THE PROCEDURES PRESCRIBED BY THE APPLICABLE TECHNICAL ORDERS AS WAS SPECIFICALLY REQUIRED BY THE REQUEST FOR PROPOSALS. YOUR COMPANY PROPOSED INSTEAD, TO PERFORM THIS CALIBRATION THROUGH THE USE OF ALTERNATE METHODS AND EQUIPMENT AND REQUESTED A DEVIATION FROM THE PROCEDURES SET FORTH IN THE TECHNICAL ORDERS. THIS WAS DETERMINED TO BE NOT PERMISSIBLE AND YOUR COMPANY WAS DENIED ANY SUCH DEVIATION. THE MATTER OF YOUR COMPANY'S RESPONSIBILITY WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR DETERMINATION IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4. HOWEVER, THE SBA REGIONAL OFFICE NOTIFIED THE DALLAS CONTRACT MANAGEMENT DISTRICT THAT YOUR FIRM DID NOT DESIRE TO FILE FOR A CERTIFICATE OF COMPETENCY.

IN CONSIDERATION OF THE NEGATIVE FINDINGS IN THE FCR AND IN ACCORDANCE WITH ARMED FORCES PROCUREMENT INSTRUCTION 1-904.1 (A) (III),IN THE ABSENCE OF INFORMATION SUFFICIENT TO PERMIT AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY, A DETERMINATION WAS MADE THAT YOUR COMPANY DID NOT MEET THE MINIMUM REQUIREMENTS OF ASPR 1-903.1 AND 1 903.2 AND, THEREFORE, FOR THIS PROCUREMENT IT WAS CONSIDERED NONRESPONSIBLE. SINCE THE NEXT LOW OFFEROR WAS LARGE BUSINESS ITS PROPOSAL WAS REJECTED AND RETURNED. THE NEXT ACCEPTABLE LOW PROPOSAL WAS RECEIVED FROM UNIVERSAL DYNAMIC AND UPON COMPLETION OF NEGOTIATIONS A PREAWARD SURVEY (FCR) WAS REQUESTED FROM THE ST. LOUIS CONTRACT MANAGEMENT DISTRICT. UPON REVIEW AND EVALUATION OF THE COMPLETE FOR, IT WAS DETERMINED THAT UNIVERSAL DYNAMIC MET THE MINIMUM STANDARDS FOR A RESPONSIBLE PROSPECTIVE CONTRACTOR AS SPECIFIED IN ASPR 1- 903.1 AND 1-903.2 AND AWARD WAS MADE TO THAT FIRM.

YOU STATE THAT YOUR PROTEST IS BASED PURELY ON THE AWARD TO AN UNPROVEN COMPANY WITH A BARE MINIMUM OF THE NECESSARY REQUIREMENTS, AT MORE EXPENSE TO THE GOVERNMENT, AND THAT YOU FEEL THAT CONCESSIONS HAVE BEEN ALLOWED TO THAT COMPANY WHICH WERE NOT ALLOWED TO YOU. PRESUMABLY, THIS ,FEELING" WAS GENERATED BY THE NEWSPAPER CLIPPING, ENCLOSED WITH YOUR PROTEST LETTER, OF A NEWS ITEM APPEARING IN THE "OKLAHOMA JOURNAL" ON JANUARY 26, 1965. THE ITEM ANNOUNCED THE AWARD OF A CONTRACT TO UNIVERSAL DYNAMIC AND STATED THAT THIS CONTRACTOR PLANNED TO EXPAND ITS FACILITIES AND NUMBER OF EMPLOYEES IN ORDER TO PERFORM THIS AIR FORCE CONTRACT AND ENABLE IT TO OBTAIN FUTURE CONTRACTS.

THE RECORD DISCLOSES THAT NO CONCESSIONS WERE MADE TO THE SUCCESSFUL CONTRACTOR AND THAT NO DEVIATIONS FROM THE TECHNICAL REQUIREMENTS WERE ALLOWED. ALTHOUGH THE FCR SURVEY CONDUCTED OF UNIVERSAL DYNAMIC DISCLOSED THAT THIS COMPANY DID NOT HAVE ALL THE NECESSARY FACILITIES, TOOLING AND MANPOWER REQUIRED TO PERFORM THE CONTRACT, IT ALSO DISCLOSED THAT IT POSSESSED THE ABILITY TO ACQUIRE THEM IN TIME TO COMPLY WITH THE DELIVERY SCHEDULE CALLED FOR UNDER THE REQUEST FOR PROPOSALS. THE COMPANY FURTHER DEMONSTRATED TO THE SATISFACTION OF THE SURVEY TEAM AND THE FACILITY CAPABILITY BOARD THAT IT HAD MADE ALL THE NECESSARY ARRANGEMENTS TO ACQUIRE SUCH ADDITIONAL FACILITIES, TOOLING AND MANPOWER. THE SUCCESSFUL CONTRACTOR HAS BEEN FOUND CAPABLE OF PERFORMING THE CONTRACT IN ACCORDANCE WITH THE REQUIREMENTS AND THE AIR FORCE REPORTS THAT IT WILL BE REQUIRED TO DO SO WITHOUT DEVIATIONS.

WITH RESPECT TO YOUR ALLEGATIONS AS TO THE RESPONSIBILITY OF THE SUCCESSFUL CONTRACTOR AND ITS ABILITY TO PERFORM AT THE TIME ITS PROPOSAL WAS SUBMITTED, WE HAVE HELD THAT THE CRITICAL TIME IS THE SCHEDULED TIME FOR COMMENCEMENT OF PERFORMANCE, PLUS ANY LEAD TIME WHICH MAY BE NECESSARY IN THE PARTICULAR CASE. COMPARE 39 COMP. GEN. 655. IN SUCH MATTERS OF QUALIFICATION IT IS WELL RECOGNIZED THAT THE CONTRACTING AGENCY IS INVESTED WITH A LARGE DEGREE OF ADMINISTRATIVE DISCRETION. SEE B-125247, DATED SEPTEMBER 20, 1955. 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. THIS HAS BEEN DONE IN THE PRESENT CASE.

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