B-158209, FEB. 23, 1966

B-158209: Feb 23, 1966

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TO JAFFE PRODUCTS CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15. THIS INVITATION WAS FOR THE PROCUREMENT OF AN INITIAL INCREMENT OF 259 CLAMP SHEAR ASSEMBLIES IN ACCORDANCE WITH THE LISTED SPECIFICATIONS. B AND C WERE FOR 259. THE PROCUREMENT WAS A 100 PERCENT-SET ASIDE FOR SMALL BUSINESS CONCERNS. AN AWARD WAS MADE TO L AND S MACHINE COMPANY FOR THE 259 UNITS OF THE INITIAL AWARD INCREMENT AT THE QUOTED PRICE OF $5. ON THE COVER PAGE OF YOUR BID YOU INDICATED THAT YOU WERE A MANUFACTURER OF THE SUPPLIES OFFERED. PART IV OF SCHEDULE II OF THE INVITATION ENTITLED "PLACE/S) OF PERFORMANCE" STATED: "OFFEROR WILL ENTER ALL LOCATIONS OF PLANTS WHERE ITEMS WILL BE PRODUCED INCLUDING STREET ADDRESS.

B-158209, FEB. 23, 1966

TO JAFFE PRODUCTS CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15, 1965, REGARDING YOUR PROTEST TO THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 41- 608-66-392, ISSUED BY KELLY AIR FORCE BASE, TEXAS. THIS INVITATION WAS FOR THE PROCUREMENT OF AN INITIAL INCREMENT OF 259 CLAMP SHEAR ASSEMBLIES IN ACCORDANCE WITH THE LISTED SPECIFICATIONS. OPTIONAL INCREMENTS A, B AND C WERE FOR 259, 130 AND 65 UNITS RESPECTIVELY. THE PROCUREMENT WAS A 100 PERCENT-SET ASIDE FOR SMALL BUSINESS CONCERNS.

YOUR BID QUOTED A UNIT PRICE OF $21 FOR THE INITIAL AWARD INCREMENT OF 259 UNITS OR A TOTAL PRICE OF $5,439. THE SECOND LOW BID SUBMITTED BY THE L AND S MACHINE COMPANY QUOTED A UNIT PRICE OF $21.65 FOR THE INITIAL AWARD INCREMENT OR A TOTAL PRICE OF $5,607.35. ON DECEMBER 2, 1965, AN AWARD WAS MADE TO L AND S MACHINE COMPANY FOR THE 259 UNITS OF THE INITIAL AWARD INCREMENT AT THE QUOTED PRICE OF $5,607.35.

ON THE COVER PAGE OF YOUR BID YOU INDICATED THAT YOU WERE A MANUFACTURER OF THE SUPPLIES OFFERED. ON THE SAME PAGE YOU INDICATED THAT THE ESTIMATED PERCENTAGE OF SUBCONTRACTING CONTEMPLATED IN YOUR BID WOULD BE 100 PERCENT.

PART IV OF SCHEDULE II OF THE INVITATION ENTITLED "PLACE/S) OF PERFORMANCE" STATED:

"OFFEROR WILL ENTER ALL LOCATIONS OF PLANTS WHERE ITEMS WILL BE PRODUCED INCLUDING STREET ADDRESS. IF ITEMS ARE TO BE PRODUCED BY OTHER THAN OFFEROR, ALSO FURNISH THE NAMES AND ADDRESSES OF OWNER AND OPERATOR OF PRODUCING FACILITIES.'

YOUR BID DID NOT PROVIDE ANY INFORMATION REGARDING THE LOCATION OF THE MANUFACTURERS OF YOUR PROPOSED PRODUCT.

ON NOVEMBER 18, 1965, THE CONTRACTING OFFICER DETERMINED THAT YOU WERE NOT A RESPONSIBLE BIDDER. THE FILE INDICATES THAT THIS DETERMINATION WAS BASED ON TELEPHONIC ADVICE RECEIVED FROM THE DEFENSE CONTRACT ADMINISTRATION SERVICES DIVISION (DCASD), GARDEN CITY, LONG ISLAND, NEW YORK. THIS ACTIVITY ADVISED THE CONTRACTING OFFICER THAT THREE PRE-AWARD SURVEYS HAD BEEN MADE AND THAT THREE SURVEYS WERE NOT FAVORABLE REGARDING OUR CAPACITY AND CREDIT. A TELEGRAM IN THE FILE DATED DECEMBER 29, 1965, FROM DCASD, GARDEN CITY, LONG ISLAND, NEW YORK, AFFIRMS THAT UNFAVORABLE PRE-AWARD SURVEYS HAD BEEN PROCESSED ON YOU ON NOVEMBER 16, 17 AND 23, 1965, AND DECEMBER 28, 1965.

THE PUBLIC ADVERTISING STATUTE AT 10 U.S.C. 2305 (C) PROVIDES THAT: "AWARDS SHALL BE MADE WITH REASONABLE PROMPTNESS BY GIVING WRITTEN NOTICE TO THE RESPONSIBLE BIDDER * * *.'

IT IS WELL SETTLED THAT A DETERMINATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY AND SUCH A DETERMINATION WHEN MADE WILL NOT BE QUESTIONED BY OUR OFFICE, IN THE ABSENCE OF A SHOWING OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE B-153617, JUNE 12, 1964, AND CASES CITED THEREIN.

ARMED SERVICES PROCUREMENT REGULATION SECTION 1-705.4 (B) PROVIDES THAT IF A BID OF A SMALL BUSINESS CONCERN IS TO BE REJECTED SOLELY BECAUSE THE CONTRACTING OFFICER HAS FOUND THE CONCERN TO BE NONRESPONSIBLE AS TO CAPACITY AND CREDIT, THE SMALL BUSINESS ADMINISTRATION SHALL BE NOTIFIED OF THE CIRCUMSTANCES. SECTION 1-705.4 (B) (II) OF ASPR STATES THAT FOR PROPOSED AWARDS EXCEEDING $2,500 BUT NOT EXCEEDING $10,000, IT IS DISCRETIONARY WITH THE CONTRACTING OFFICER WHETHER THE MATTER WILL BE REFERRED TO SBA. THE INSTANT PROCUREMENT WAS OVER $2,500 BUT UNDER $10,000; THEREFORE, IT WAS WITHIN THE CONTRACTING OFFICER'S DISCRETION WHETHER THIS MATTER WOULD BE REFERRED TO SBA.

IN VIEW OF THE RECORD PRESENTED TO OUR OFFICE WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE DETERMINATION REGARDING YOUR RESPONSIBILITY.