B-158656, B-158718, MAY 26, 1966

B-158656,B-158718: May 26, 1966

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTERS DATED MARCH 24. IT WAS STATED THAT IT WAS THE OPINION OF THE BUREAU OF YARDS AND DOCKS (NOW NAVAL FACILITIES ENGINEERING COMMAND) THAT THE IRREGULARITIES IN BID SECURITY AMOUNTS AND SECURITY DOCUMENTS WHICH WERE THE BASIS OF THE PROTESTS COULD BE WAIVED AS MINOR INFORMALITIES AND THAT INASMUCH AS UNDER ASPR 1-900 THE BUREAU COULD NOT MAKE THE AFFIRMATIVE FINDING OF CONTRACTOR RESPONSIBILITY REQUIRED BEFORE AWARD COULD BE MADE TO THE LOW BIDDER. IT WAS PROPOSED TO AUTHORIZE AWARD TO SEAWARD CONSTRUCTION COMPANY AS THE LOWEST RESPONSIBLE AND CONFORMING BIDDER IF THIS OFFICE CONCURRED IN THE WAIVING OF THE INFORMALITIES OF THIS FIRM'S BID BOND.

B-158656, B-158718, MAY 26, 1966

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTERS DATED MARCH 24, 1966, AND MAY 11, 1966, FROM W. S. EVANS, NAVAL FACILITIES ENGINEERING COMMAND, FURNISHING REPORTS RELATIVE TO THE PROTESTS MADE BY SEAWARD CONSTRUCTION COMPANY, INC., AND ELECTROLINE NATIONAL, INC., AGAINST AN AWARD TO A LOWER BIDDER UNDER NAVY INVITATION NBY-60522, ISSUED BY THE U.S. NAVAL STATION, NORFOLK, VIRGINIA.

IN THE REPORT OF MARCH 24, 1966, IT WAS STATED THAT IT WAS THE OPINION OF THE BUREAU OF YARDS AND DOCKS (NOW NAVAL FACILITIES ENGINEERING COMMAND) THAT THE IRREGULARITIES IN BID SECURITY AMOUNTS AND SECURITY DOCUMENTS WHICH WERE THE BASIS OF THE PROTESTS COULD BE WAIVED AS MINOR INFORMALITIES AND THAT INASMUCH AS UNDER ASPR 1-900 THE BUREAU COULD NOT MAKE THE AFFIRMATIVE FINDING OF CONTRACTOR RESPONSIBILITY REQUIRED BEFORE AWARD COULD BE MADE TO THE LOW BIDDER, VOLTA ELECTRIC COMPANY, INC. AND SOUTHEASTERN ELECTRIC CONTRACTING COMPANY, INC., A JOINT VENTURE, IT WAS PROPOSED TO AUTHORIZE AWARD TO SEAWARD CONSTRUCTION COMPANY AS THE LOWEST RESPONSIBLE AND CONFORMING BIDDER IF THIS OFFICE CONCURRED IN THE WAIVING OF THE INFORMALITIES OF THIS FIRM'S BID BOND. IT WAS FURTHER STATED THAT THE BUREAU WAS UNABLE TO MAKE THE AFFIRMATIVE FINDING OF RESPONSIBILITY REQUIRED BY ASPR 1-900 IN THE CASE OF VOLTA AND SOUTHEASTERN BECAUSE OF THIS FIRM'S LACK OF PRIOR SUCCESSFUL EXPERIENCE IN PERFORMANCE OF WORK OF THIS MAGNITUDE AND COMPLEXITY AND THE DOUBTS THAT IT WAS UNABLE TO RESOLVE WITH REGARD TO THE JOINT VENTURE'S FINANCIAL STRENGTH. A SIGNED MEMORANDUM DETERMINATION OF NONRESPONSIBILITY OF SOUTHEASTERN AND VOLTA HAS BEEN MADE A PART OF THE FILE AS REQUIRED BY ASPR 1 904.1. THE DETERMINATION INCLUDES INFORMATION THAT VOLTA WAS DEFAULTED BY A PRIME CONTRACTOR WHILE WORKING AS A SUBCONTRACTOR UNDER A PRIOR NAVY CONTRACT. FOR THESE REASONS THE CONTRACTING OFFICER DETERMINED THAT THE LOW BIDDER IS NONRESPONSIBLE.

FOLLOWING AN INFORMAL INQUIRY BY THIS OFFICE REGARDING THE APPARENT FAILURE TO REFER THE FINDING OF NONRESPONSIBILITY TO THE SMALL BUSINESS ADMINISTRATION (SBA) AS REQUIRED BY ASPR 1-705.4 (C), THE BUREAU REFERRED THE MATTER TO THE SBA. WITH THE REPORT DATED MAY 11, 1966, COPY OF CERTIFICATE OF COMPETENCY ISSUED BY SBA ON MAY 6, 1966, CERTIFYING THE FIRM'S CAPACITY AND CREDIT TO PERFORM THIS PROCUREMENT, WAS SUBMITTED TO THIS OFFICE. HOWEVER, THE REPORT FURTHER STATED THAT THE NAVAL FACILITIES ENGINEERING COMMAND, WHILE RECOGNIZING THE JURISDICTION OF THE SBA IN THIS AREA, STILL CONSIDERS THE DETERMINATION OF NONRESPONSIBILITY MADE BY THE COMMAND JUSTIFIED UNDER THE STANDARDS ESTABLISHED BY ASPR 1-900.

FROM THE REVIEW OF THE RECORD PRESENTED HERE, WE FIND THAT THE INFORMATION UPON WHICH THE COMMAND BASED ITS DETERMINATION OF NONRESPONSIBILITY RELATES SOLELY TO THE CAPACITY AND CREDIT OF THE JOINT VENTURE.

UNDER SECTION 8 (B) (7) OF THE SMALL BUSINESS ACT, AS AMENDED, 15 U.S.C. 637 (B) (7), THE ISSUANCE OF A CERTIFICATE OF COMPETENCY BY SBA IS CONCLUSIVE UPON GOVERNMENT PROCUREMENT OFFICERS WITH RESPECT TO THE COMPETENCY, AS TO CAPACITY AND CREDIT, OF ANY SMALL BUSINESS CONCERN TO PERFORM A GOVERNMENT CONTRACT. IT IS CONCLUSIVE ON THE CONTRACTING OFFICER WITH RESPECT TO A BIDDER'S OVERALL ABILITY TO MEET QUALITY, QUANTITY, AND TIME REQUIREMENTS OF THE PROCUREMENT, INCLUDING ABILITY TO PERFORM, ORGANIZATION, TECHNICAL EXPERIENCE, KNOWLEDGE, SKILLS, "KNOW- HOW," TECHNICAL EQUIPMENT AND FACILITIES OR THE ABILITY TO OBTAIN THEM. SEE 38 COMP. GEN. 864. SEE ALSO, 38 COMP. GEN. 289; 43 ID. 257, 262; ID. 298, 300.

WITH RESPECT TO THE MATTER OF BID SECURITY SUBMITTED WITH THE LOW BID, THIS OFFICE CONCURS WITH THE ADMINISTRATIVE CONCLUSION THAT THE INDEMNITY LIMIT OF THE BONDING COMPANY, $78,000, BEING GREATER THAN THE DIFFERENCE BETWEEN THE LOW BID AND THE NEXT HIGHER ACCEPTABLE BID ON ITEM NO. 1, REJECTION OF THE LOW BID IS NOT REQUIRED. ASPR 10-102.5 (II) AND 43 COMP. GEN. 238.

ACCORDINGLY, IN VIEW OF THE CONCLUSIVE CHARACTER OF THE CERTIFICATE OF COMPETENCY, AND SINCE WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF THE SMALL BUSINESS ADMINISTRATION, WE FIND NO LEGAL BASIS FOR QUESTIONING AN AWARD TO THE LOWEST BIDDER, THE SOUTHEASTERN AND VOLTA COMPANIES.