B-159608, SEP. 7, 1966

B-159608, SEP. 7, 1966

TO OPPORTUNITIES, UNLIMITED:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1966, PROTESTING AGAINST THE AWARD OF A CONTRACT TO SOUTHERN ELECTRONICS ENGINEERING, INCORPORATED, UNDER INVITATION FOR BIDS NO. AMC/Z/-01-021-66-3263, BY THE U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA.

THE INVITATION, CALLING FOR BIDS ON 47 ITEMS DESCRIBED AS "DUCT, AIR, MISSILE COOLING, FSN: 1440-076-5888; OPN:10110158," FOR THE HAWK MISSILE SYSTEM, WAS ISSUED ON APRIL 6, 1966. SEVEN BIDS WERE RECEIVED AND OPENED ON MAY 6, 1966. SINCE YOUR UNIT BID PRICE OF $88.00 WAS APPRECIABLY LOWER THAN THE OTHER BIDS RECEIVED, AND SINCE YOU WERE CURRENTLY 102 DAYS DELINQUENT ON ANOTHER CONTRACT FOR THE SAME ITEM, A PRE-AWARD SURVEY WAS REQUESTED PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1- 905.4. THE SURVEY REPORT DATED MAY 26, 1966, RECOMMENDED THAT ,NO AWARD" BE MADE FOR THE FOLLOWING REASONS:

"EFFORTS TO OBTAIN MORE CURRENT FINANCIAL DATA WERE UNSUCCESSFUL. PROPOSED AWARD IS IN AMOUNT OF $4,136.00 AND SCHEDULED COMPLETION IS 180 DAYS AFTER RECEIPT OF AWARD. CONTRACTOR'S WORKING CAPITAL IS REPORTED AS A DEFICIT OF $22,029. CURRENT RATIO IS POOR, ACID TEST RATIO IS DANGEROUSLY WEAK. FINANCIAL POSITION IS EXTREMELY HEAVY. LOSSES HAVE BEEN INCURRED. CREDIT INFORMATION SUGGESTS TRADE PAYMENT WEAKNESS INCLUDING ACCOUNTS PLACED FOR COLLECTION BY SUPPLIERS. IN VIEW OF THIS, NO RECOMMENDATION FOR AWARD IS MADE.'

PURSUANT TO THIS RECOMMENDATION, OPPORTUNITIES, UNLIMITED, WAS DETERMINED TO BE FINANCIALLY NONRESPONSIBLE BY THE CONTRACTING OFFICER IN ACCORDANCE WITH ASPR 1-904. THE MATTER OF YOUR NONRESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION SINCE THE ESTIMATED AMOUNT OF THE CONTRACT WAS LESS THAN $10,000. SEE ASPR 1 705.4/C); B-158209 DATED FEBRUARY 23, 1966.

YOU CONTEND THAT AWARD SHOULD HAVE BEEN MADE TO OPPORTUNITIES, UNLIMITED, SINCE IT SUCCESSFULLY SUPPLIED THE SAME ITEM UNDER TWO PRIOR CONTRACTS. IT IS ALSO YOUR VIEW THAT THE PRE-AWARD SURVEY DID NOT CONSIDER ALL OF THE FINANCIAL INFORMATION AVAILABLE AND THAT ADDITIONAL INFORMATION SUBSEQUENTLY PROVIDED WAS NOT CONSIDERED IN DETERMINING THE RESPONSIBILITY OF YOUR FIRM.

IT IS ADMINISTRATIVELY REPORTED THAT THE TECHNICAL COMPETENCY OF YOUR FIRM DID NOT ENTER INTO THE CONTRACTING OFFICER'S NEGATIVE DETERMINATION; RATHER, IT WAS BASED SOLELY ON THE LACK OF YOUR FIRM'S FINANCIAL RESPONSIBILITY. THE PRE-AWARD SURVEY CONSIDERED ALL OF THE FINANCIAL INFORMATION THEN AVAILABLE, AND REPEATED ATTEMPTS WERE MADE TO OBTAIN ADDITIONAL MATERIAL FROM YOUR FIRM. A REVIEW OF THE FINANCIAL INFORMATION CONTAINED IN A PRE-AWARD SURVEY CONDUCTED ON A LATER INVITATION FOR BIDS FAILS TO SUBSTANTIATE YOUR ALLEGATION THAT FINANCIAL INFORMATION WAS SUBSEQUENTLY SUBMITTED TO THE GOVERNMENT. THIS SURVEY, DATED JUNE 15, 1966, CONTAINS THE SAME UNFAVORABLE STATEMENT AS QUOTED ABOVE AND REFLECTS AN INABILITY TO OBTAIN FINANCIAL INFORMATION FROM YOUR FIRM.

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. NO SUCH SHOWING HAS BEEN MADE HERE.

IN VIEW OF THE RECORD PRESENTED TO OUR OFFICE, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE DETERMINATION REGARDING YOUR FIRM'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR.