B-157491, DEC. 2, 1965

B-157491: Dec 2, 1965

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INC.: FURTHER REFERENCE IS MADE TO A LETTER DATED AUGUST 13. WAS THE LOWEST OF SIX BIDS SUBMITTED. AEROSPACE WAS INITIALLY ADVISED THAT ITS BID WAS REJECTED BECAUSE IT NOT ONLY DID NOT QUALIFY UNDER PARAGRAPH I (A) OF THE SOLICITATION AND OFFER BUT ALSO WAS NONRESPONSIVE TO THE SOLICITATION. THIS WAS LATER CORRECTED AND AEROSPACE WAS ADVISED THAT THE DETERMINING FACTOR FOR REJECTING ITS BID WAS DUE TO NONRESPONSIBILITY RATHER THAN THE RESPONSIVENESS OF ITS BID AND THAT THIS FINDING WAS BASED UPON REASONS OTHER THAN CAPACITY OR CREDIT. THE CRUX OF YOUR PROTEST IS THAT THE ADMINISTRATIVE AGENCY DOES NOT HAVE THE AUTHORITY TO DETERMINE THE RESPONSIBILITY OF YOUR COMPANY. YOU ASSERT THAT SINCE YOU ARE A SMALL BUSINESS CONCERN THE MATTER SHOULD HAVE BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CERTIFICATE OF COMPETENCY CONSIDERATION AS TO CAPACITY AND CREDIT.

B-157491, DEC. 2, 1965

TO AEROSPACE, INC.:

FURTHER REFERENCE IS MADE TO A LETTER DATED AUGUST 13, 1965, FROM MR. HAROLD E. FIELDING, WHICH PROTESTS THE AWARD OF A CONTRACT UNDER AIR FORCE SOLICITATION AND OFFER NO. 04-626-65-85 TO ANY BIDDER OTHER THAN AEROSPACE, INC.

THIS SOLICITATION INVITED BIDS FOR THE FURNISHING OF LABOR, EQUIPMENT AND MATERIALS FOR THE CLEANING, WASHING AND CORROSION CONTROL OF CERTAIN AIRCRAFT. AEROSPACE'S BID OF $131,850.40, LESS A 15-PERCENT-10-DAY, OR A 10-PERCENT-30-DAY CASH PAYMENT DISCOUNT, WAS THE LOWEST OF SIX BIDS SUBMITTED.

THE CONTRACTING OFFICER REQUESTED THAT A SURVEY BE CONDUCTED TO ASCERTAIN THE CAPABILITY OF AEROSPACE TO PERFORM THE PROPOSED CONTRACT. AEROSPACE WAS INITIALLY ADVISED THAT ITS BID WAS REJECTED BECAUSE IT NOT ONLY DID NOT QUALIFY UNDER PARAGRAPH I (A) OF THE SOLICITATION AND OFFER BUT ALSO WAS NONRESPONSIVE TO THE SOLICITATION. HOWEVER, THIS WAS LATER CORRECTED AND AEROSPACE WAS ADVISED THAT THE DETERMINING FACTOR FOR REJECTING ITS BID WAS DUE TO NONRESPONSIBILITY RATHER THAN THE RESPONSIVENESS OF ITS BID AND THAT THIS FINDING WAS BASED UPON REASONS OTHER THAN CAPACITY OR CREDIT. THE CRUX OF YOUR PROTEST IS THAT THE ADMINISTRATIVE AGENCY DOES NOT HAVE THE AUTHORITY TO DETERMINE THE RESPONSIBILITY OF YOUR COMPANY. YOU ASSERT THAT SINCE YOU ARE A SMALL BUSINESS CONCERN THE MATTER SHOULD HAVE BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CERTIFICATE OF COMPETENCY CONSIDERATION AS TO CAPACITY AND CREDIT. YOU STATE ALSO THAT THE INTEGRITY OF AEROSPACE IS AT ISSUE IN THIS MATTER AND THAT YOU ARE ENTITLED TO KNOW THE REASONS FOR THE REJECTION OF YOUR BID.

THE RECORD IN THIS CASE INDICATES THAT AEROSPACE IS A NEW FIRM WITHOUT EXPERIENCE IN THE PERFORMANCE OF THESE SERVICES, AND THAT IT WILL RELY ALMOST COMPLETELY ON THE EXPERIENCE AND LEADERSHIP OF ITS PRESIDENT, MR. PAUL E. SHADE. WHILE PAUL SHADE WAS PRESIDENT OF MISSILE CONTROLS LABORATORY, INC., THAT COMPANY, IN 1964, BECAME DELINQUENT ON SIX CONTRACTS WITH THE GOVERNMENT. THE CONTRACTING OFFICER ADMINISTERING THOSE CONTRACTS HAS ADVISED THAT IN BIDDING ON THOSE CONTRACTS MISSILE CONTROLS STATED THAT IT HAD FULL KNOWLEDGE OF TECHNICAL ORDERS, ETC., TO DO THE JOB BUT THAT DURING THE PERIOD OF THE CONTRACTS THE COMPANY CONSTANTLY REQUESTED THE CONTRACTING OFFICER TO FURNISH SPECIFICATIONS, TECHNICAL ORDERS, ETC., MANY OF WHICH WERE THE BASIC DOCUMENTS ON WHICH THE BUSINESS WAS TO OPERATE.

THE MATTER OF A BIDDER'S RESPONSIBILITY IS FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY AND WILL NOT BE QUESTIONED IN THE ABSENCE OF ARBITRARINESS OR BAD FAITH, WHICH DOES NOT APPEAR TO BE THE CASE HERE. COMP. GEN. 430. FURTHER, UNDER THE PROVISION OF THE ARMED SERVICES PROCUREMENT REGULATION 1-705.4 (C), A DETERMINATION OF NONRESPONSIBILITY FOR REASONS OTHER THAN CAPACITY OR CREDIT, AS HERE, NEED NOT BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR FINAL DETERMINATION. 37 COMP. GEN. 676; 38 ID. 864.