B-156871, AUG. 6, 1965

B-156871: Aug 6, 1965

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE BASIS OF YOUR PROTEST IS THAT YOU ARE THE LOW INITIAL OFFEROR AND THE CONTRACTING OFFICER. IS IN CONTRAVENTION OF THE APPLICABLE REGULATIONS. ONE OF THE ESSENTIAL REQUIREMENTS OF THE RFQ WAS THAT THE SUCCESSFUL OFFEROR HAVE ITS SERVICE FACILITY WITHIN 100 MILES OF FORT MONMOUTH TO INSURE THAT THE TRANSPORTATION OF THE INSTRUMENTS SUBMITTED FOR REPAIR AND CALIBRATION WOULD BE PERFORMED EXPEDITIOUSLY. TWENTY OFFERS WERE RECEIVED BY THE PROCURING ACTIVITY AND OPENED ON APRIL 16. WERE DETERMINED TO BE IN THE FINANCIAL ZONE OF CONSIDERATION FOR FURTHER NEGOTIATIONS. SINCE HE WAS NOT SATISFIED AS TO THE ADEQUACY OF YOUR FACILITIES IN THE PRESCRIBED AREA. THE SBA REPRESENTATIVE-IN-CHARGE AT THE ARMY ELECTRONICS COMMAND WAS FULLY AWARE OF THE FACTS AND WAS OF THE OPINION THAT THE PROCEDURE FOLLOWED WAS PROPER AND THAT ISSUANCE OF A CERTIFICATE OF COMPETENCY WOULD NOT AUTOMATICALLY REQUIRE AWARD TO YOU.

B-156871, AUG. 6, 1965

TO ELECTRONIC SCIENCE SERVICE COMPANY, INC.:

YOUR TELEGRAM OF MAY 26, 1965, PROTESTS THE PROCEDURES EMPLOYED BY THE DEPARTMENT OF THE ARMY IN THE CONDUCT OF A NEGOTIATED PROCUREMENT UNDER REQUEST FOR QUOTATIONS (RFQ) NO. AMC/E/-28-043-65-00669/N), ISSUED APRIL 6, 1965, BY THE UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY.

THE BASIS OF YOUR PROTEST IS THAT YOU ARE THE LOW INITIAL OFFEROR AND THE CONTRACTING OFFICER, AFTER REFERRING TO THE SMALL BUSINESS ADMINISTRATION (SBA) THE MATTER OF YOUR RESPONSIBILITY AS TO CAPACITY AND CREDIT, CONTINUED TO CONDUCT NEGOTIATIONS WITH OTHER FIRMS. SUCH ACTION, YOU CONTEND, IS IN CONTRAVENTION OF THE APPLICABLE REGULATIONS.

THE RFQ SOLICITED OFFERS TO PERFORM REPAIR AND CALIBRATION OF PORTABLE ELECTRICAL AND ELECTRONIC INSTRUMENTS UNDER A TIME AND MATERIALS CONTRACT FOR A PERIOD OF 24 MONTHS, BEGINNING MAY 16, 1965, AND TERMINATING MAY 15, 1967. ONE OF THE ESSENTIAL REQUIREMENTS OF THE RFQ WAS THAT THE SUCCESSFUL OFFEROR HAVE ITS SERVICE FACILITY WITHIN 100 MILES OF FORT MONMOUTH TO INSURE THAT THE TRANSPORTATION OF THE INSTRUMENTS SUBMITTED FOR REPAIR AND CALIBRATION WOULD BE PERFORMED EXPEDITIOUSLY, ECONOMICALLY, AND WITH THE MINIMUM POSSIBLE DAMAGE.

TWENTY OFFERS WERE RECEIVED BY THE PROCURING ACTIVITY AND OPENED ON APRIL 16. SIX OFFERS, INCLUDING YOURS, WERE DETERMINED TO BE IN THE FINANCIAL ZONE OF CONSIDERATION FOR FURTHER NEGOTIATIONS. HOWEVER, SINCE HE WAS NOT SATISFIED AS TO THE ADEQUACY OF YOUR FACILITIES IN THE PRESCRIBED AREA, THE CONTRACTING OFFICER REFERRED TO SBA THE MATTER OF YOUR CAPACITY AND CREDIT WITH RESPECT TO PERFORMANCE OF THE PROPOSED CONTRACT. IN THE MEANTIME, THE CONTRACTING OFFICER CONTINUED NEGOTIATIONS WITH THE OTHER FIVE LOW OFFERORS AND WITH YOU.

IN REFERRING THE MATTER TO SBA, THE CONTRACTING OFFICER REPORTED MERELY THAT YOU HAD SUBMITTED A BID ON THE SOLICITATION AND HAS BEEN DETERMINED BY HIM TO BE NONRESPONSIBLE AS TO CAPACITY. HE HAD NOT IN FACT DETERMINED AT THAT TIME THAT YOUR PROPOSAL WOULD OTHERWISE BE ACCEPTED AND MADE NO REPRESENTATION TO THAT EFFECT, AND THE SBA REPRESENTATIVE-IN-CHARGE AT THE ARMY ELECTRONICS COMMAND WAS FULLY AWARE OF THE FACTS AND WAS OF THE OPINION THAT THE PROCEDURE FOLLOWED WAS PROPER AND THAT ISSUANCE OF A CERTIFICATE OF COMPETENCY WOULD NOT AUTOMATICALLY REQUIRE AWARD TO YOU. HOWEVER, UPON YOUR PROTEST, THE SBA HEADQUARTERS AT WASHINGTON TOOK THE POSITION THAT UNDER ITS REGULATIONS IT WOULD NOT PROCESS A REFERENCE FOR ISSUANCE OF A CERTIFICATE OF COMPETENCY UNLESS IT WAS ESTABLISHED THAT THE BIDDER IN QUESTION WOULD BE AWARDED A CONTRACT IF A CERTIFICATE OF COMPETENCY WERE ISSUED. UPON THIS RULING AND AT THE SUGGESTION OF SBA, THE REFERENCE WAS WITHDRAWN. WE ARE ADVISED THAT NEGOTIATIONS HAVE NOW BEEN CONCLUDED BUT THAT AWARD ACTION IS BEING WITHHELD PENDING OUR DECISION UPON YOUR PROTEST.

WHILE IT APPEARS TO US THAT IN CONDUCTING COMPETITIVE NEGOTIATIONS IT WELL MIGHT BE DESIRABLE FOR THE CONTRACTING OFFICER TO BE ABLE TO A ASCERTAIN WHETHER SBA WOULD ISSUE A CERTIFICATE OF COMPETENCY TO ONE OR MORE OF SEVERAL OFFERORS BEFORE THE CONCLUSION OF FURTHER NEGOTIATIONS, WE DO NOT QUESTION THE SBA INTERPRETATION IN THIS INSTANCE OF ITS OWN REGULATIONS. IN THE CIRCUMSTANCES HERE PRESENT IT IS NEVERTHELESS CLEAR THAT THE REFERENCE TO SBA BY THE CONTRACTING OFFICER OF THE QUESTION OF YOUR CAPABILITY CANNOT PROPERLY BE CONSTRUED AS A DETERMINATION OR COMMITMENT THAT AWARD WOULD BE MADE TO YOU IF A CERTIFICATE OF COMPETENCY WERE ISSUED. THE ERROR OF THE CONTRACTING OFFICER THEREFORE WAS NOT IN CONTINUING TO NEGOTIATE WITH OTHER OFFERORS BUT IN SUBMITTING THE MATTER TO SBA BEFORE COMPLETION OF NEGOTIATIONS. SINCE NO ACTION WAS TAKEN BY SBA AND THE ERROR HAS BEEN CORRECTED BY WITHDRAWAL OF THE REFERENCE, WE FIND NO BASIS FOR CONSIDERING YOUR RIGHTS TO HAVE BEEN PREJUDICED IN ANY WAY, AND WE SEE NO REASON WHY THE PROCUREMENT SHOULD NOT PROCEED AS IF THE ERRONEOUS REFERENCE HAD NOT BEEN MADE.