B-156317, JUN. 8, 1965

B-156317, JUN. 8, 1965

TO ELECTRONIC INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 10 AND 13, 1965, PROTESTING THE AWARD OF CONTRACTS TO OTHER BIDDERS UNDER INVITATIONS FOR BIDS NOS. AMC (Z/-01-021-65-825, -830 AND -840 ISSUED BY THE UNITED STATES ARMY MISSILE COMPANY, REDSTONE ARSENAL, ALABAMA.

IN YOUR LETTERS YOU STATE THAT YOU WERE NOT GIVEN ANY REASONS AS TO WHY YOUR FIRM WAS NOT GIVEN THE AWARD OF THE CONTRACTS UNDER THE CITED INVITATIONS. HOWEVER, SUBSEQUENT TO THE AWARD OF SUCH CONTRACTS, OR ON MARCH 18, 1965, THE CONTRACTING OFFICER ADVISED YOU AS FOLLOWS:

"YOU ARE AWARE THAT THE DEPARTMENT OF THE ARMY MADE A NEGATIVE PRE AWARD SURVEY IN EACH OF THE THREE INSTANCES CITED ABOVE. FURTHER, THE SMALL BUSINESS ADMINISTRATION DECLINED TO ISSUE YOUR FIRM A CERTIFICATE OF COMPETENCY IN CONNECTION WITH THESE THREE PROCUREMENTS.

"THE REASONS YOUR COMPANY WAS DISQUALIFIED FROM RECEIVING AWARDS ON THESE THREE PROCUREMENTS WERE DUE TO YOUR INADEQUATE FACILITIES AND EQUIPMENT, DEMONSTRATED TECHNICAL EXPERIENCE, DEMONSTRATED PRODUCTION ABILITY, AND INSUFFICIENT PERSONNEL AS REVEALED IN THE PRE-AWARD SURVEYS PERFORMED.'

THEREAFTER, IN YOUR LETTER DATED MARCH 22, 1965, ADDRESSED TO THE CONTRACTING OFFICE YOU SET OUT YOUR REASONS AS TO WHY YOU CONSIDERED THAT THE PREAWARD SURVEY AND THE SMALL BUSINESS ADMINISTRATION DETERMINATION WERE ERRONEOUS.

UNDER THE PROVISIONS OF 10 U.S.C. 2305 (C) APPLICABLE TO THE CONTRACTS HERE INVOLVED EACH CONTRACT WAS TO BE AWARDED ONLY TO A RESPONSIVE AND RESPONSIBLE BIDDER. PARAGRAPH 1-904 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PRECLUDES AWARD OF A CONTRACT UNLESS THE CONTRACTING OFFICER FIRST MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE UNDER THE STANDARDS SET OUT IN ASPR 1-903. ALSO, UNDER THE PROVISIONS OF 15 U.S.C. 637 (B) (7) THE CERTIFICATION BY THE SMALL BUSINESS ADMINISTRATION THAT A SMALL BUSINESS CONCERN IS A COMPETENT CONTRACTOR WITH RESPECT TO CAPACITY AND CREDIT AS TO A SPECIFIC GOVERNMENT CONTRACT MUST BE ACCEPTED BY THE GOVERNMENT PROCUREMENT OFFICERS AS CONCLUSIVE IN THIS RESPECT.

AS STATED HEREINABOVE THE CONTRACTING OFFICER MADE A DETERMINATION UNDER EACH OF THE THREE INVITATIONS THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER, BASED UPON AN UNFAVORABLE PREAWARD SURVEY IN WHICH IT WAS CONCLUDED, AMONG OTHER THINGS, THAT YOUR FIRM DID NOT HAVE THE TECHNICAL ABILITY, PRODUCTION ABILITY, PLANT FACILITIES AND EQUIPMENT, INSPECTION ABILITY, AND ABILITY TO MEET REQUIRED SCHEDULES OF PRODUCTION. ALSO, THE SMALL BUSINESS ADMINISTRATION REFUSED TO ISSUE YOUR FIRM A CERTIFICATE OF COMPETENCY.

WE HAVE HELD THAT UNLESS THE RECORD CLEARLY SHOWS THAT ADMINISTRATIVE DETERMINATION ON MATTERS OF RESPONSIBILITY WAS CLEARLY ERRONEOUS WE WILL NOT QUESTION SUCH A DETERMINATION. 43 COMP. GEN. 228 AND B-152791, JANUARY 9, 1964. THE FACT THAT THE SMALL BUSINESS ADMINISTRATION REFUSED TO ISSUE A CERTIFICATE OF COMPETENCY TENDS TO CONFIRM THE CORRECTNESS OF THE ADMINISTRATIVE DETERMINATION. WE DO NOT FIND ANYTHING IN THE RECORD TO WARRANT OUR QUESTIONING THE ADMINISTRATIVE DETERMINATION IN THIS CASE.