B-157246, JAN. 5, 1966

B-157246, JAN. 5, 1966

TO THE AMERICAN LANGUAGE AND CULTURE INSTITUTE:

YOUR TELEGRAM OF JULY 13, 1965, YOUR LETTER OF JULY 14, 1965, AND SUBSEQUENT CORRESPONDENCE, PROTEST THE AWARD BY THE DEPARTMENT OF THE ARMY OF A CONTRACT TO THE INSTITUTE OF MODERN LANGUAGES, INCORPORATED, UNDER INVITATION FOR BIDS NO. AIII 31-001-66-1, ISSUED JUNE 17, 1965, BY THE PURCHASING AND CONTRACTING DIVISION, INDUSTRIAL OPERATIONS ACTIVITY, FORT BRAGG, NORTH CAROLINA.

THE PROCUREMENT WAS RESTRICTED TO SMALL BUSINESS CONCERNS, AND THE INVITATION SOLICITED BIDS TO FURNISH SERVICES FOR THE TEACHING OF THE VIETNAMESE LANGUAGE AT THE SPECIAL WARFARE SCHOOL, FORT BRAGG, DURING THE PERIOD JULY 15, 1965 (OR DATE OF AWARD, IF LATER) THROUGH JULY 14, 1966, IN COMPLIANCE WITH CERTAIN TERMS AND CONDITIONS. THE ESTIMATED NUMBER OF PERSONNEL REQUIRED TO PERFORM THE SERVICES FOR THE PERIOD JULY 15 THROUGH OCTOBER 22 WAS 24, AND FOR THE PERIOD OCTOBER 23 THROUGH JULY 14, 1966, WAS 16. BIDDERS WERE ADVISED, HOWEVER, OF THEIR RESPONSIBILITY TO PROVIDE THE REQUIRED NUMBER OF PERSONNEL, WHETHER FEWER OR MORE THAN THE GOVERNMENT ESTIMATES, FOR PROPER PERFORMANCE OF THE CONTRACT.

BID OPENING WAS ORIGINALLY SCHEDULED FOR JULY 6. HOWEVER, IN ORDER TO ALLOW ADDITIONAL TIME REQUIRED BY THE GOVERNMENT TO MAKE THE AWARD AND TO ALLOW SUFFICIENT TIME FOR NECESSARY PREPARATORY WORK BY THE SUCCESSFUL BIDDER PRIOR TO COMMENCEMENT OF THE CONTRACT SERVICES, THE DATE OF BID OPENING WAS ACCELERATED TO JUNE 29 BY AN INVITATION AMENDMENT ISSUED JUNE 21.

PARAGRAPH 19 OF THE SPECIAL CONDITIONS OF THE INVITATION READS AS FOLLOWS:

"19. BIDDER'S QUALIFICATIONS: BEFORE AN OFFER IS CONSIDERED FOR AWARD, THE OFFEROR MAY BE REQUESTED BY THE GOVERNMENT TO SUBMIT A STATEMENT REGARDING HIS PREVIOUS EXPERIENCE IN PERFORMING COMPARABLE WORK, HIS BUSINESS AND TECHNICAL ORGANIZATION, FINANCIAL RESOURCES, AND PLANT AVAILABLE TO BE USED IN PERFORMING THE WORK.'

THE THREE BIDS RECEIVED BY THE PROCURING ACTIVITY WERE OPENED AT 1:30 P.M. ON JUNE 29, AS SCHEDULED. YOUR BID OF $144,210 WAS LOW; MODERN LANGUAGE INSTITUTE WAS SECOND LOW AT $149,454, AND SANZ SCHOOL OF LANGUAGE WAS HIGHEST AT $179,809.

THE RECORD SHOWS THAT 30 MINUTES AFTER BID OPENING, YOUR MRS. BACHLAN TRUONG BINH TELEPHONED THE CONTRACTING OFFICER REGARDING THE BIDDING RESULTS AND WAS NOTIFIED THAT YOU WERE THE LOW BIDDER. THE CONTRACTING OFFICER STATES THAT HE ADVISED MRS. BINH THAT IN THE ABSENCE OF ANY RECORD OF PREVIOUS CONTRACTS WITH THE PROCURING ACTIVITY, IT WOULD BE NECESSARY FOR YOU TO FURNISH EVIDENCE THAT YOU HAD SUFFICIENT QUALIFIED PERSONNEL AND EXPERIENCE TO PERFORM THE CONTRACT SERVICES TOGETHER WITH THE MOST CURRENT INFORMATION ON THE FINANCIAL CONDITION OF YOUR FIRM. MRS. BINH WAS SPECIFICALLY ASKED WHETHER YOU COULD FURNISH THE REQUESTED INFORMATION WITHIN THE NEXT TWO OR THREE DAYS; OTHERWISE, THE PROCURING ACTIVITY WOULD REFER THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR DECISION REGARDING THE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC) TO YOUR FIRM. THE RECORD INDICATES THAT BY TELEGRAM DATED JULY 2 MRS. BINH ADVISED THE CONTRACTING OFFICER THAT YOU HAD 22 QUALIFIED INSTRUCTORS AND 2 SUPERVISORS AVAILABLE. ADDITIONAL INFORMATION ON THE COMPANY OFFICERS, FACILITIES, NUMBER OF EMPLOYEES, AND NET WORTH WAS SUBMITTED TO THE CONTRACTING OFFICER ON A BIDDER'S MAILING LIST APPLICATION UNDER DATE OF JULY 7. THE CONTRACTING OFFICER FURTHER STATES THAT MRS. BINH INFORMED HIM THAT SHE WAS THEN EMPLOYED AT COLUMBIA UNIVERSITY BUT WOULD RESIGN HER POSITION IF YOU WERE AWARDED THE CONTRACT; THAT WHILE YOU DID NOT HAVE 24 QUALIFIED PERSONNEL AVAILABLE, YOU ANTICIPATED NO RECRUITING PROBLEMS; AND THAT YOU HAD NOT PREVIOUSLY PERFORMED ANY SIMILAR SERVICES FOR EITHER A GOVERNMENT AGENCY OR A COMMERCIAL FIRM.

BASED UPON THE INFORMATION SO FURNISHED BY YOU, THE CONTRACTING OFFICER CONCLUDED THAT HE COULD NOT DETERMINE THAT YOU WERE A RESPONSIBLE PROSPECTIVE CONTRACTOR, AS CONTEMPLATED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-902. ACCORDINGLY, ON THE SAME DAY, THE CONTRACTING OFFICER TELEPHONED THE NEW YORK CITY SBA OFFICE TO INQUIRE WHETHER A REQUEST FOR A COC ON YOUR FIRM COULD BE PROCESSED WITHIN SIX DAYS IN VIEWOF THE NEED FOR THE CONTRACT SERVICES COMMENCING JULY 15. THE SBA REPRESENTATIVE REPLIED THAT A MINIMUM OF 15 DAYS WOULD BE REQUIRED TO PROCESS SUCH REQUEST, BUT IT WAS SUGGESTED THAT THE COC PROCEDURE COULD BE BY-PASSED IN AN EMERGENCY AND AWARD MADE TO THE NEXT RESPONSIVE BIDDER.

THE RECORD FURTHER INDICATES THAT PURSUANT TO A PROTEST BY SANZ SCHOOL OF LANGUAGE, A STOP ORDER WAS PLACED ON AWARD ACTION ON JUNE 30, THE DAY AFTER BID OPENING. THE STOP ORDER WAS LIFTED, HOWEVER, ON JULY 12 FOLLOWING A MEMORANDUM REQUEST FROM THE COMMANDANT OF THE SPECIAL WARFARE SCHOOL TO HIGHER AUTHORITIES IN THE DEPARTMENT OF THE AIR FORCE. THE COMMANDANT'S MEMORANDUM, WHICH WAS DATED JUNE 30, INDICATED THAT THE VIETNAMESE LANGUAGE PROGRAM HAD BEEN EXPANDED IN APRIL 1965 TO MEET A CRITICAL NEED; THAT CONTINUITY OF THE PROGRAM WAS OF UTMOST IMPORTANCE; AND THAT INTERRUPTION OF THE PROGRAM WOULD RESULT IN SERIOUS DIFFICULTIES.

ON JULY 12, THE CONTRACTING OFFICER ISSUED A WRITTEN STATEMENT CERTIFYING THAT AWARD MUST BE MADE WITHOUT DELAY TO PROVIDE LANGUAGE INSTRUCTIONS TO 364 MILITARY STUDENTS (THE NUMBER STATED IN THE INVITATION FOR THE FIRST TRAINING SESSION) COMMENCING JULY 15, THERE BEING NO TIME TO PERMIT RESCHEDULING OF STUDENTS FOR THE FISCAL YEAR 1966. ACCORDINGLY, AWARD WAS MADE ON THE SAME DATE TO MODERN LANGUAGE INSTITUTE, THE SECOND LOW BIDDER, WHO HAD SATISFACTORILY PERFORMED SIMILAR PREVIOUS CONTRACTS FOR THE GOVERNMENT. IN THIS CONNECTION, IT IS REPORTED BY THE DEPARTMENT OF THE ARMY THAT THE CONTRACTOR IS SATISFACTORILY PERFORMING THE CURRENT CONTRACT, ALSO.

THE RECORD FURTHER SHOWS THAT YOU WERE ADVISED OF THE AWARD IN A SUBSEQUENT TELEPHONE CONVERSATION WITH THE CONTRACTING OFFICER ON JULY 12. YOU WERE ALSO ADVISED THAT DUE TO THE LACK OF PRIOR SIMILAR CONTRACTS, IT COULD NOT BE DETERMINED THAT YOU WERE A RESPONSIBLE BIDDER. IN SUBSEQUENT CORRESPONDENCE WITH THE PROCURING ACTIVITY, YOU INDICATED THAT YOU HAD FORWARDED TO THE ACTIVITY BY CERTIFIED MAIL ON JUNE 30, FOR WHICH YOU FURNISHED A RECEIPT, CERTAIN PAPERS EVIDENCING YOUR RESPONSIBILITY. WHILE THE PROCURING ACTIVITY WAS ABLE TO VERIFY THAT A CERTIFIED MAIL ITEM HAD BEEN RECEIVED FROM YOU ON JULY 1, THE PAPERS IN QUESTION HAVE NOT BEEN LOCATED, AND THE CONTRACTING OFFICER REPORTEDLY WAS UNAWARE THAT THE PAPERS HAD BEEN FORWARDED BY YOU UNTIL AFTER THE AWARD. FURTHER, THE PROCURING ACTIVITY REPORTS THAT, ON THE BIDDER'S MAILING LIST APPLICATION SUBMITTED BY YOU ON JULY 7, 1965, YOU REPORTED A NET WORTH OF $35,000, WHICH, IN THE OPINION OF THE PROCURING ACTIVITY, INDICATES A LACK OF FINANCIAL CAPABILITY TO PERFORM A $144,000 CONTRACT.

IT IS YOUR POSITION, IN SUBSTANCE, THAT, AS THE LOWEST SMALL BUSINESS BIDDER, YOU WERE ENTITLED TO THE AWARD. ACCORDINGLY, YOU REQUEST THAT THE AWARD BE CANCELLED AND THAT YOU BE PERMITTED TO ASSUME THE CONTRACT FUNCTIONS.

IT IS THE POSITION OF THE DEPARTMENT OF THE ARMY THAT THE URGENCY OF THE SITUATION, INVOLVING THE NECESSARY TRAINING, COMMENCING JULY 15, OF 364 MILITARY STUDENTS PRIOR TO THEIR DEPARTURE FOR OVERSEAS, JUSTIFIED THE AWARD, IN ACCORDANCE WITH ASPR 1-705.4 (B) (I) (REVISION 9), TO AMERICAN LANGUAGE AND CULTURE INSTITUTE WITHOUT DELAY FOR THE PROCESSING OF A COC REQUESTED ON YOUR FIRM.

UNDER SECTION 8 (B) (7) OF THE SMALL BUSINESS ACT, 15 U.S.C. 637 (B) (7), SBA IS AUTHORIZED TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICERS AS TO THE CAPACITY AND CREDIT OF A SMALL BUSINESS CONCERN TO PERFORM A SPECIFIC PROCUREMENT, AND SUCH CERTIFICATION MUST BE ACCEPTED BY THE PROCUREMENT OFFICERS AS CONCLUSIVE. CONSISTENT WITH SUCH STATUTORY PROVISIONS, ASPR 1 -705, ISSUED IN IMPLEMENTATION OF THE APPLICABLE PROCUREMENT STATUTE, PROVIDES THAT A CONTRACTING OFFICER WHO FINDS A SMALL BUSINESS BIDDER NONRESPONSIBLE FOR REASONS RELATING SOLELY TO CAPACITY OR CREDIT SHALL REFER THE MATTER TO SBA FOR DETERMINATION WHETHER A COC SHOULD BE ISSUED. HOWEVER, REFERRAL TO SBA IS NOT MANDATORY WHEN AWARD MUST BE MADE WITHOUT DELAY AND THE CONTRACTING OFFICER MAKES AN APPROPRIATE CERTIFICATION TO SUCH EFFECT, SUPPORTED BY DOCUMENTARY EVIDENCE TO BE RETAINED IN THE CONTRACT FILE, AND PROMPTLY FURNISHES A COPY OF THE CERTIFICATION TO THE SBA REPRESENTATIVE. ASPR 1-705.4 (B) (I) (REVISION 9). 38 COMP. GEN. 248.

FROM THE FACTS STATED, THE SERVICES INVOLVED WERE REQUIRED TO COMMENCE JULY 15. THIS FACT NECESSITATED AWARD OF THE CONTRACT SOMETIME PRIOR THERETO TO ENABLE THE SUCCESSFUL BIDDER TO PROPERLY PREPARE FOR THE TRAINING PROGRAM. IT WOULD APPEAR, HOWEVER, THAT THE INFORMATION AVAILABLE TO THE CONTRACTING OFFICER REGARDING YOUR CAPACITY AND CREDIT AT THE TIME OF THE AWARD ON JULY 12 TO THE SECOND LOW BIDDER DID NOT, THROUGH INADVERTENCE OR NEGLIGENCE, INCLUDE THE PAPERS WHICH YOU FORWARDED TO THE PROCURING ACTIVITY BY CERTIFIED MAIL ON JUNE 30, AND THE AVAILABLE INFORMATION THEREFORE WAS NOT ADEQUATE TO WARRANT THE ISSUANCE OF THE AFFIRMATIVE DETERMINATION REQUIRED BY ASPR 1-902 THAT YOU WERE A RESPONSIBLE PROSPECTIVE CONTRACTOR. WHILE THE APPARENT LAXITY ON THE PART OF THE PROCURING ACTIVITY IN THE HANDLING OF YOUR CERTIFIED MAIL ITEM IS REGRETTABLE, IT HAS BEEN REPORTED BY THE DEPARTMENT OF THE ARMY THAT THE DOCUMENTATION FURNISHED WITH YOUR LETTER OF JUNE 30, 1965, AS ENCLOSURES 1 THROUGH 16, HAS BEEN REVIEWED BY THE DEPARTMENT AND IT HAS BEEN CONCLUDED THAT THE INFORMATION CONTAINED THEREIN WOULD HAVE TENDED TO STRENGTHEN THE CONTRACTING OFFICER'S FINDING OF NONRESPONSIBILITY SINCE YOUR INSTITUTE, AS SHOWN BY THE DOCUMENTATION, HAD BEEN IN EXISTENCE LESS THAN TWO YEARS, HAD SPECIALIZED IN "ENGLISH AS A SECOND LANGUAGE," AND OPERATED PRINCIPALLY AS A TUTORING SCHOOL FOR ENGLISH. SINCE WE ARE UNABLE TO DISAGREE WITH THE DEPARTMENT'S CONCLUSIONS IN THAT REGARD, WE CANNOT CONCLUDE THAT THE LAXITY ON THE PART OF THE PROCURING ACTIVITY IN THE HANDLING OF YOUR CERTIFIED LETTER OF JUNE 30 RESULTED IN SUCH PREJUDICE TO YOUR FIRM AS TO WARRANT FURTHER ACTION BY OUR OFFICE IN REGARD TO THE AWARD OF THE CONTRACT TO THE INSTITUTE OF MODERN LANGUAGES.

UNDER THE CIRCUMSTANCES, AND IN VIEW OF THE EXCEPTION TO THE COC PROCEDURE PROVIDED IN ASPR 1-705, WE ARE UNABLE TO CONCLUDE THAT THE AWARD WAS IMPROPER AND YOUR PROTEST MUST BE DENIED. HOWEVER, WE ARE DIRECTING THE ATTENTION OF THE SECRETARY OF THE ARMY TO THE MATTER WITH THE SUGGESTION THAT ACTION BE TAKEN TO INSURE THAT EFFECTIVE PROCEDURES WILL HEREAFTER BE EMPLOYED FOR THE HANDLING OF CERTIFIED MAIL AT THE PROCURING ACTIVITY, SO AS TO AVOID ANY FUTURE SIMILAR OCCURRENCES.