B-157572, DEC. 7, 1965

B-157572: Dec 7, 1965

Additional Materials:

Contact:

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

 

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

RETIRED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 19. THESE INVITATIONS WERE FOR FURNISHING ALL LABOR. THE INVITATIONS PROVIDED THAT THE PROCUREMENTS WERE SET ASIDE 100 PERCENT FOR SMALL BUSINESS. BIDS WERE OPENED ON JUNE 8. YOUR BID UNDER EACH INVITATION WAS LOW. MUST HAVE ESTABLISHED A SATISFACTORY RECORD IN THE PAST FOR COMPLETION OF CONTRACTS OF SIMILAR CHARACTER AND EXTENT. THE FACT THAT DRAWINGS AND SPECIFICATIONS HAVE BEEN FURNISHED TO BIDDERS WILL NOT LIMIT THE GOVERNMENT'S RIGHT TO JUDGE AS TO COMPETENCY AFTER BIDS HAVE BEEN RECEIVED.'. CLAUSE G OF INVITATION FOR BIDS NO. 04-666-65-64 WAS THE SAME AS THE PROVISION IN CLAUSE H QUOTED ABOVE. THAT YOU WERE CONSIDERED AS NONRESPONSIBLE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION SECTION 1-903.1 (III).

B-157572, DEC. 7, 1965

TO LT. COL. LEO F. SULLIVAN, USAF, RETIRED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 19, 1965, IN CONNECTION WITH YOUR PROTEST TO THE AWARD OF CONTRACTS UNDER INVITATIONS FOR BIDS NO. 04-666-65-64 AND 04-666-65-65, ISSUED BY BEALE AIR FORCE BASE, CALIFORNIA.

THESE INVITATIONS WERE FOR FURNISHING ALL LABOR, SUPERINTENDENCE, TRANSPORTATION, TOOLS AND EQUIPMENT TO PERFORM CUSTODIAL SERVICES IN ACCORDANCE WITH THE ATTACHED SCHEDULE. THE INVITATIONS PROVIDED THAT THE PROCUREMENTS WERE SET ASIDE 100 PERCENT FOR SMALL BUSINESS. BIDS WERE OPENED ON JUNE 8, 1965, AND YOUR BID UNDER EACH INVITATION WAS LOW.

CLAUSE II OF INVITATION FOR BIDS NO. 04-666-65-65, ENTITLED "BIDDERS QUALIFICATIONS," PROVIDED AS FOLLOWS:

"BIDDER'S QUALIFICATIONS: BIDDERS MUST BE REGULARLY ENGAGED IN THE BUSINESS COVERED BY THESE SPECIFICATIONS AND POSSESSED OF SATISFACTORY FINANCIAL AND TECHNICAL ABILITY, EQUIPMENT AND ORGANIZATION TO INSURE A SATISFACTORY COMPLETION OF THE CONTRACT, AND MUST HAVE ESTABLISHED A SATISFACTORY RECORD IN THE PAST FOR COMPLETION OF CONTRACTS OF SIMILAR CHARACTER AND EXTENT. THE CONTRACTING OFFICER SHALL BE THE JUDGE OF THE FACTS SUBMITTED IN SUPPORT OF BIDDERS CLAIM AS TO COMPETENCY. THE FACT THAT DRAWINGS AND SPECIFICATIONS HAVE BEEN FURNISHED TO BIDDERS WILL NOT LIMIT THE GOVERNMENT'S RIGHT TO JUDGE AS TO COMPETENCY AFTER BIDS HAVE BEEN RECEIVED.'

CLAUSE G OF INVITATION FOR BIDS NO. 04-666-65-64 WAS THE SAME AS THE PROVISION IN CLAUSE H QUOTED ABOVE.

ON JUNE 15, 1965, THE PROCURING OFFICE ADVISED THE SMALL BUSINESS ADMINISTRATION AT MCCLELLAN AIR FORCE BASE, CALIFORNIA, THAT YOU WERE CONSIDERED AS NONRESPONSIBLE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION SECTION 1-903.1 (III). THIS REGULATION PROVIDES THAT A PROSPECTIVE CONTRACTOR MUST HAVE A SATISFACTORY RECORD OF PERFORMANCE.

ON JUNE 16, 1965, THE PROCURING OFFICE REQUESTED A FACILITY CAPABILITY REPORT ON YOU FROM THE SAN FRANCISCO AIR PROCUREMENT DISTRICT, PALO ALTO, CALIFORNIA. IN RESPONSE TO THIS REQUEST THE PROCURING OFFICE WAS ADVISED BY A TELEGRAM DATED JUNE 17, 1965, THAT YOU HAD NO PREVIOUS EXPERIENCE ON NON-PERSONAL SERVICE CONTRACTS AND THAT YOU WERE EXPERIENCING DIFFICULTY IN OBTAINING AN ADEQUATE LINE OF CREDIT. IT WAS RECOMMENDED THAT YOUR BID BE DECLARED NONRESPONSIVE FOR FAILING TO COMPLY WITH THE REQUIREMENTS OF CLAUSES G AND H AND THAT THE REQUEST FOR THE FCR BE WITHDRAWN.

THE SAN FRANCISCO REGIONAL OFFICE AT SBA ADVISED THE PROCURING ACTIVITY ON JUNE 21, 1965, THAT YOUR BID WAS NONRESPONSIVE SINCE YOU COULD NOT COMPLY WITH THE EXPERIENCE REQUIREMENTS OF CLAUSES G AND H AND THAT SBA WOULD THEREFORE NOT TAKE ANY FURTHER ACTION. ON JUNE 18, 1965, YOU WERE ADVISED BY THE PROCURING ACTIVITY THAT YOUR BID WAS REJECTED AS NONRESPONSIVE FOR FAILING TO COMPLY WITH THE REQUIREMENTS OF CLAUSES G AND H. ON AUGUST 19, 1965, YOU PROTECTED THIS DETERMINATION TO OUR OFFICE.

A CONTRACT UNDER INVITATION FOR BIDS NO. 04-666-65-65, WAS AWARDED TO PACIFIC COAST UTILITIES SERVICE, INCORPORATED, ON JUNE 28, 1965, AND A CONTRACT UNDER INVITATION FOR BIDS NO. 04-666-65-64, WAS AWARDED TO THE AEROTRONICS CORPORATION ON JUNE 29, 1965. THESE CONTRACTS ARE FOR THE PERIOD FROM JULY 1, 1965 THROUGH JUNE 30, 1966.

IT IS OUR VIEW THAT THE REQUIREMENTS IN CLAUSES G AND H OF THE INSTANT INVITATIONS INVOLVE FACTORS WHICH ARE TO BE CONSIDERED IN DETERMINING THE RESPONSIBILITY OF A BIDDER AND THEREFORE INVOLVE HIS CAPACITY AND CREDIT. SEE 40 COMP. GEN. 106. THE SMALL BUSINESS ADMINISTRATION HAS THE STATUTORY AUTHORITY TO CERTIFY YOUR COMPETENCY IN REGARD TO CAPACITY AND CREDIT. SEE ARMED SERVICES PROCUREMENT REGULATION SECTION 1-705.4 (A). THIS OFFICE, OF COURSE, IS NOT MAKING ANY DECISION REGARDING YOUR RESPONSIBILITY BUT WE DO FIND THAT IT WAS ERRONEOUS TO REJECT YOUR BID AS NONRESPONSIVE ON THE BASIS THAT YOU DID NOT COMPLY WITH THE REQUIREMENTS OF CLAUSES G AND H. IF AN AWARD TO YOU WERE OTHERWISE PROPER, THE VALIDITY OF THE AWARDS TO PACIFIC COAST UTILITIES SERVICE AND AEROTRONICS WOULD DEPEND ON THE DETERMINATION OF SBA REGARDING YOUR CAPACITY AND CREDIT. SEE 40 COMP. GEN. 106; B-137471, OCTOBER 24, 1958. HOWEVER, EVEN IF YOU WERE ISSUED A CERTIFICATE OF COMPETENCY FOR THE INSTANT PROCUREMENTS AT THIS TIME, CANCELLATION OF THE AWARDS TO PACIFIC COAST UTILITIES SERVICE AND AEROTRONICS, WHICH APPARENTLY WERE MADE IN GOOD FAITH, WOULD NOT BE IN THE BEST INTEREST OF THE UNITED STATES. CONSEQUENTLY, WHILE WE FEEL THAT THE MANNER IN WHICH YOUR BID WAS REJECTED WAS UNFORTUNATE, WE WILL NOT RECOMMEND ANY FURTHER ACTION IN REGARD TO THIS MATTER.

THE DEPARTMENT OF THE AIR FORCE AGREES WITH OUR FINDINGS IN THIS MATTER AND HAS ADVISED THAT CORRECTIVE ACTION IS BEING TAKEN TO AVOID A REPETITION OF THIS SITUATION IN FUTURE PROCUREMENTS.