B-156419, MAY 21, 1965

B-156419, MAY 21, 1965

TO MR. RICHARD R. CHAVEZ:

BY TELEFAX DATED MARCH 29, 1965, YOU PROTESTED AGAINST THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. 65-09-016, ISSUED ON JANUARY 20, 1965, BY THE GENERAL SERVICES ADMINISTRATION (GSA) FOR THE ESTABLISHMENT AND OPERATION OF A FOOD SERVICE IN THE FEDERAL BUILDING, U.S. COURT HOUSE, DENVER, COLORADO, AND IN THE ADJACENT NEW CUSTOM HOUSE AND U.S. POST OFFICE BUILDINGS.

PARAGRAPH 1 OF THE BID FORM UNDER THE CAPTION "INSTRUCTIONS TO BIDDERS" PROVIDED IN PERTINENT PART:

"1. QUALIFICATIONS OF BIDDERS AND AWARD OF CONTRACT.

"A. BIDS WILL BE CONSIDERED ONLY FROM RESPONSIBLE ORGANIZATIONS OR INDIVIDUALS NOW OR RECENTLY ENGAGED IN THE OPERATION OR MANAGEMENT OF FOOD ESTABLISHMENTS, COMPARABLE TO THOSE DESCRIBED IN THE ATTACHED GENERAL PROVISIONS AND CONTRACT REQUIREMENTS, WHICH HAVE FURNISHED GOOD FOOD UNDER SANITARY CONDITIONS AT REASONABLE PRICES. EACH BIDDER SHALL FURNISH, WITH EACH COPY OF HIS BID, A NARRATIVE STATEMENT LISTING COMPARABLE ESTABLISHMENTS WHICH HE HAS OPERATED OR MANAGED DURING THE LAST TWO YEARS, AND ALSO A GENERAL HISTORY OF HIS OPERATING ORGANIZATION AND COMPLETE EXPERIENCE. BEFORE A BID IS CONSIDERED FOR AWARD THE BIDDER MAY BE REQUESTED TO SUBMIT A STATEMENT OF FINANCIAL INFORMATION, AND PERMIT INSPECTION OF THE ESTABLISHMENTS WHICH HE IS OPERATING OR MANAGING. * *

"B. DEMONSTRATED FINANCIAL ABILITY, COMPETENCY IN OPERATING OR MANAGING SIMILAR ESTABLISHMENTS, THE NET WORTH OF BIDDERS, AND THE FINANCIAL TERMS OF THE BIDS SUBMITTED WILL BE CONSIDERED IN DETERMINING THE BID TO BE ACCEPTED. THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS, AND TO WAIVE ANY INFORMALITY IN BIDS WHEN IN ITS INTEREST TO DO SO.'

ALSO, ATTACHED TO THE INVITATION WAS GSA FORM 527,"CONTRACTOR'S QUALIFICATIONS AND FINANCIAL INFORMATION," ON WHICH BIDDERS WERE REQUESTED TO SUPPLY INFORMATION OF THE CHARACTER CONTEMPLATED BY PARAGRAPH 1 ABOVE. UPON THE OPENING OF BIDS ON MARCH 18, 1965, IT APPEARED THAT YOU, A SMALL BUSINESS CONCERN, SUBMITTED THE LOWEST BID AND THAT FRANK G. SHATTUCK CO., SUBMITTED THE NEXT LOWEST BID. HOWEVER, BASED UPON A REVIEW OF THE INFORMATION FURNISHED BY YOU ON GSA FORM 527 AND OTHER INFORMATION INDEPENDENTLY DEVELOPED BY THE CONTRACTING OFFICER, IT WAS DETERMINED THAT YOU WERE NOT A RESPONSIBLE BIDDER WITHIN THE PURVIEW OF PARAGRAPH 1. HOWEVER, THE CONTRACTING OFFICER THROUGH INADVERTENCE REJECTED YOUR BID WITHOUT NOTIFYING THE SMALL BUSINESS ADMINISTRATION (SBA) OF THE FACT OF YOUR NONRESPONSIBILITY AS REQUIRED BY SECTION 1-1.708.2 (A) OF THE FEDERAL PROCUREMENT REGULATIONS SO AS TO PERMIT THAT AGENCY TO DETERMINE WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED IN YOUR CASE. UPON RECEIPT OF YOUR PROTEST, GSA TOOK IMMEDIATE STEPS TO ADVISE THE SHATTUCK COMPANY OF THE PROTEST, SUGGESTING THAT FURTHER COMMITMENTS BY IT BE DEFERRED PENDING RESOLUTION OF THE PROTEST, AND ALSO FORWARDED THE MATTER OF YOUR NONRESPONSIBILITY TO SBA. ON APRIL 23, 1965, SBA NOTIFIED GSA AS FOLLOWS:

"THE SMALL BUSINESS ADMINISTRATION HAS REVIEWED THE APPLICATION FOR A CERTIFICATE OF COMPETENCY FILED BY THE SUBJECT SMALL BUSINESS FIRM (RICHARD R. CHAVEZ) IN RELATION TO THE ABOVE-REFERENCED INVITATION FOR BIDS (65-09-016).

"BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION, THIS AGENCY HAS DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY IN THIS INSTANCE.'

WE CONSISTENTLY HAVE HELD THAT THE QUESTION AS TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR IS PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE OFFICERS CONCERNED, AND SUCH DETERMINATION WILL NOT BE QUESTIONED BY US IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR. 36 COMP. GEN. 42; 37 ID. 676; ID. 798. THE REFUSAL OF SBA, AN INDEPENDENT AGENCY ESTABLISHED TO ASSIST SMALL BUSINESS FIRMS, TO ISSUE A CERTIFICATE OF COMPETENCY IS PERSUASIVE THAT THE CONTRACTING OFFICER'S DETERMINATION THAT YOU WERE NOT QUALIFIED TO PERFORM THE CONTRACT WAS CORRECT.

IN VIEW THEREOF, AND SINCE THE FACT OF YOUR NONRESPONSIBILITY APPARENTLY WOULD HAVE BEEN CONFIRMED BY SBA PRIOR TO AWARD, WE DO NOT BELIEVE THAT THE ADMINISTRATIVE OVERSIGHT ADVERSELY AFFECTED YOUR RIGHTS AS A SMALL BUSINESS BIDDER.