B-159549, SEP. 30, 1968

B-159549, SEP. 30, 1968

TO BARBEE INSTRUMENT AND GYROSCOPE COMPANY, INC:

REFERENCE IS MADE TO YOUR PROTEST OF JUNE 21, 1966, AND SUBSEQUENT COMMUNICATIONS, AGAINST A CONTRACT FOR PROVIDING CENTRAL ELECTRONICS SHOP SUPPORT SERVICES AT THE MANNED SPACECRAFT CENTER, HOUSTON, TEXAS, WHICH WAS AWARDED TO MEDLEY ELECTRONICS CORPORATION BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) UNDER REQUEST FOR PROPOSALS NO. BG 84-52-6 -24P, A TOTAL SMALL BUSINESS SET-ASIDE.

IT APPEARS THAT YOUR PROTEST HAS ITS INCEPTION IN A CONTRACT FOR SIMILAR SERVICES WHICH WAS AWARDED BY NASA TO TEST EQUIPMENT CORPORATION ON MARCH 29, 1965, FOR A PERIOD OF THREE MONTHS, AND CONTAINED A UNILATERAL ONE- YEAR FIRM OPTION WITH TWO ADDITIONAL ONE YEAR OPTIONS, SUBJECT TO FURTHER NEGOTIATIONS. ONLY THE INITIAL ONE YEAR OPTION WAS EXERCISED, AND THE CONTRACT WAS PERMITTED TO EXPIRE ON JUNE 30, 1966. YOUR PROTEST OF BOTH THE AWARD OF THAT CONTRACT AND THE ACTION OF NASA IN PERMITTING THE CONTRACTOR TO CONTINUE WORK THEREUNDER THROUGH FISCAL YEAR 1966 AFTER THE SMALL BUSINESS ADMINISTRATION (SBA) HAD DETERMINED THAT SUCH FIRM WAS NOT A SMALL BUSINESS CONCERN, WAS DENIED BY THIS OFFICE IN DECISIONS OF MARCH 31, 1965, AND MARCH 4, 1966, B-155983. IT IS ADMINISTRATIVELY REPORTED THAT DURING FISCAL YEAR 1966 IT BECAME NECESSARY TO RECOMPUTE THE REQUIREMENT FOR FISCAL YEAR 1967, INCLUDING OPTIONAL REQUIREMENTS FOR FISCAL YEARS 1968 AND 1969. THE SUBJECT REQUEST FOR PROPOSALS ON SUCH REQUIREMENTS RESULTED IN RECEIPT OF FIVE PROPOSALS AT CLOSING DATE, MAY 9, 1966.

AFTER EVALUATION IN ACCORDANCE WITH THE SPECIFIED CRITERIA, THE FIVE PROPOSALS WERE SCORED AS FOLLOWS:

COMPANY TOTAL POINTS

MEDLEY 90.5

ENTRONIX 90.2

GULF AEROSPACE 82.4

TEXAS CENTRAL 72.8

BARBEE 59.4 FINAL NEGOTIATIONS WERE THEREAFTER CONDUCTED WITH MEDLEY ELECTRONICS CORPORATION AND ENTRONIX CORPORATION AS BEING THE ONLY FIRMS WITHIN A COMPETITIVE RANGE, AND THE CONTRACT WAS AWARDED TO MEDLEY ON JUNE 16, 1966. WE HAVE BEEN INFORMALLY ADVISED THAT THE OPTIONS FOR FISCAL YEARS 1968 AND 1969 WERE EXERCISED, AND THAT THE CONTRACT TERMINATES ON JUNE 30, 1969.

ON MAY 13, 1966, YOU ORALLY PROTESTED TO THE CONTRACTING OFFICER THE SMALL BUSINESS SIZE CERTIFICATION OF GULF AEROSPACE CORPORATION AND ENTRONIX CORPORATION AND FORMALLY PRESENTED SUCH PROTEST IN WRITING ON MAY 16, 1966, PRIOR TO THE CLOSE OF BUSINESS ON THE 5TH WORKING DAY AFTER CLOSING DATE FOR THE RECEIPT OF PROPOSALS AS WAS REQUIRED BY PARAGRAPH 1.703 OF THE NASA PROCUREMENT REGULATION. THE REGIONAL SMALL BUSINESS ADMINISTRATION OFFICE, HOUSTON, TEXAS, RULED ON MAY 26, 1966, THAT GULF AND ENTRONIX WERE SMALL BUSINESS CONCERNS, AND YOUR APPEAL FROM THAT RULING TO THE SBA SIZE APPEALS BOARD WAS DENIED ON JUNE 23, 1966. ON MAY 23, 1966, YOU ORALLY PROTESTED THE SMALL BUSINESS SIZE CERTIFICATION OF TEXAS CENTRAL ELECTRONICS CORPORATION AND MEDLEY ELECTRONICS CORPORATION, WHICH PROTEST WAS SUBMITTED IN WRITING TO THE CONTRACTING OFFICER ON MAY 24, 1966. THAT PROTEST, NOT HAVING BEEN SUBMITTED WITHIN 5 WORKING DAYS AFTER CLOSING DATE FOR RECEIPT OF PROPOSALS, WAS UNTIMELY, AND DID NOT REQUIRE REFERRAL TO THE SMALL BUSINESS ADMINISTRATION. AFTER INQUIRING INTO THE BASIS OF YOUR PROTEST AGAINST MEDLEY, THE CONTRACTING OFFICER DETERMINED THAT HE DID NOT HAVE ADEQUATE REASON FOR QUESTIONING MEDLEY'S SMALL BUSINESS SIZE CERTIFICATION, AND HE THEREAFTER ADVISED YOU ON JUNE 1, 1966, THAT YOUR PROTEST OF MAY 24 WAS UNTIMELY AND INELIGIBLE FOR CONSIDERATION IN CONNECTION WITH THE SUBJECT REQUEST FOR PROPOSALS.

YOU STATE THAT AFTER THE CLOSING DATE OF MAY 9, 1966, NASA WAS SECRETIVE AND WITHHELD FROM YOUR FIRM THE NAMES AND BUSINESS ADDRESSES OF THE OTHER OFFERORS, AND THAT IT WAS NOT UNTIL MAY 13, 1966, THAT YOU WERE FURNISHED THE NAMES OF THOSE FIRMS. IT IS REPORTED BY NASA THAT THE PROPOSALS RECEIVED AT CLOSING TIME ON MAY 9 WERE DELIVERED UNOPENED TO THE CHAIRMAN, SOURCE EVALUATION BOARD, ON MAY 10 AT WHICH TIME EVALUATION BEGAN. IT IS FURTHER REPORTED THAT YOU CONTACTED MR. H. T. CHRISTMAN, INDUSTRY ASSISTANCE OFFICER AND SMALL BUSINESS SPECIALIST, ON OR ABOUT MAY 10, AND THAT HE ADVISED YOU THAT HE DID NOT KNOW THE NAMES OF THE COMPANIES WHO HAD SUBMITTED OFFERS AND INDICATED TO YOU THAT THE SOURCE EVALUATION BOARD WAS THE PROPER SOURCE FOR SUCH INFORMATION.

THE RECORD BEFORE THIS OFFICE DOES NOT SHOW THAT YOU ATTEMPTED THEREAFTER TO SECURE THE INFORMATION FROM THE SOURCE EVALUATION BOARD, AS SUGGESTED BY MR. CHRISTMAN, OR FROM THE CONTRACTING OFFICER, THE PUBLIC INFORMATION OFFICER OR FROM ANY OTHER NASA OFFICIAL PRIOR TO MAY 13, 1966. FURTHER, THE RECORD DOES NOT ESTABLISH THAT YOU SPECIFICALLY REQUESTED THE ADDRESSES OF THE OTHER OFFERORS ON MAY 13 OR THAT YOU WERE REFUSED SUCH INFORMATION BY THE SOURCE EVALUATION BOARD. THE CHAIRMAN'S MEMORANDUM OF YOUR MEETING OF MAY 13 STATES IN SUCH CONNECTION: "MR. BINGMAN THEN DISCUSSED THE ORAL PROTEST OF SIZE CERTIFICATION LODGED WITH THE CONTRACTING OFFICER AND THE IMPORTANCE OF CONFIRMING THE PROTEST IN WRITING WITHIN THE ALLOTTED FIVE DAY PERIOD. "MR. BARBEE ASKED AND RECEIVED THE LIST OF OFFERORS ON RFP BG 84-52-6-24P FOR CENTRAL ELECTRONICS SHOP SUPPORT SERVICES. MR. BARBEE ASKED THE MAKEUP OF THE ENTRONIX CORPORATION CHARTER; HOWEVER, THE BOARD MEMBERS COULD NOT ANSWER AS THEY DID NOT KNOW EXACTLY HOW THE CORPORATION WAS FORMED.'

ASIDE FROM THE FOREGOING, YOUR PROTEST CONSISTS MAINLY OF ALLEGATIONS OF MISCONDUCT OF A CRIMINAL NATURE ON THE PART OF NASA PERSONNEL AND OTHER INDIVIDUALS IN CONNECTION WITH THE AWARD TO MEDLEY. AS SIMILAR CHARGES HAD BEEN MADE BY YOU IN CONNECTION WITH PRIOR PROCUREMENTS BY NASA AND WERE DETERMINED TO BE UNFOUNDED AFTER INVESTIGATION BY THAT AGENCY, YOUR ALLEGATIONS CONCERNING THE SUBJECT PROCUREMENT WERE REFERRED BY NASA TO THE FEDERAL BUREAU OF INVESTIGATION SO THAT SUCH ALLEGATIONS COULD BE FULLY INVESTIGATED AND INDEPENDENTLY RESOLVED.

FOLLOWING SUCH INVESTIGATION, THE DEPARTMENT OF JUSTICE HAS ADVISED THIS OFFICE THAT THE UNITED STATES ATTORNEY, SOUTHERN DISTRICT OF TEXAS, HAS DECLINED PROSECUTION, AND THAT AFTER REVIEW THE DEPARTMENT IS IN ACCORD WITH HIS DETERMINATION. WE HAVE ALSO BEEN ADVISED BY THE SMALL BUSINESS ADMINISTRATION THAT UPON REVIEW OF THE PERTINENT FACTORS INVOLVED, THAT ADMINISTRATION DOES NOT CONTEMPLATE ANY FURTHER ACTION ON YOUR REQUEST THAT THE SBA SIZE APPEALS BOARD DECISION OF JUNE 23, 1966, BE REOPENED.

SINCE THE ALLEGED MISCONDUCT ON WHICH YOUR PROTEST WAS BASED WAS PRIMARILY OF A CRIMINAL NATURE, AND INVESTIGATION OF SUCH ALLEGATIONS BY THE APPROPRIATE AGENCIES DOES NOT APPEAR TO HAVE DISCLOSED ANY ADEQUATE FOUNDATION IN FACT TO WARRANT FURTHER ACTION BY EITHER THE DEPARTMENT OF JUSTICE OR THE SMALL BUSINESS ADMINISTRATION, AND SINCE THE RECORD BEFORE THIS OFFICE DOES NOT OTHERWISE PROVIDE ANY SUBSTANTIAL SUPPORT FOR ANY OF YOUR CHARGES AGAINST THE PERSONNEL CONCERNED WHICH WOULD MATERIALLY AFFECT THE VALIDITY OF THE CONTRACT, WE FIND NO VALID GROUNDS ON WHICH THIS OFFICE MAY HOLD THAT THE AWARD TO MEDLEY WAS CLEARLY ILLEGAL, SO AS TO JUSTIFY CANCELLATION OF NASA'S CONTRACT WITH THAT FIRM.

IN VIEW OF THE FOREGOING YOUR PROTEST IS DENIED.

A COPY OF THE REPORT RECEIVED FROM THE SMALL BUSINESS ADMINISTRATION UNDER DATE OF SEPTEMBER 10, 1968, IS ENCLOSED FOR YOUR INFORMATION.