B-159667, SEP. 13, 1966

B-159667: Sep 13, 1966

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WHEN THE BIDS WERE OPENED JUNE 1. OPPORTUNITIES UNLIMITED WAS FOUND TO BE THE LOWEST BIDDER. WAS DELINQUENT ON A PREVIOUS CONTRACT AND HAD RECEIVED AN UNFAVORABLE PREAWARD SURVEY ON MAY 26. SINCE NO NEW FINANCIAL INFORMATION WAS THEN AVAILABLE. THE FINANCIAL PORTION OF THE PREVIOUS SURVEY WAS INCORPORATED INTO THE NEW SURVEY. IT WAS ALSO FURTHER DETERMINED THAT OPPORTUNITIES UNLIMITED WOULD BE UNABLE TO MEET THE REQUIRED PERFORMANCE AND DELIVERY SCHEDULE BECAUSE OF INADEQUATE PLANT FACILITIES AND EQUIPMENT. THAT OPPORTUNITIES UNLIMITED WAS A NONRESPONSIBLE PROSPECTIVE CONTRACTOR PURSUANT TO ASPR 1-903.1/II) AND 1-903.1/III). WHILE ORDINARILY THE MATTER OF YOUR NONRESPONSIBILITY SHOULD HAVE BEEN REFERENCED TO THE SMALL BUSINESS ADMINISTRATION.

B-159667, SEP. 13, 1966

TO OPPORTUNITIES UNLIMITED:

WE AGAIN REFER TO YOUR TELEGRAM DATED JULY 9, 1966, IN WHICH YOU PROTEST ANY AWARD UNDER INVITATION FOR BIDS AMC/Z/-01-021-66-3347 TO ANOTHER BIDDER. THAT INVITATION, ISSUED APRIL 29, 1966, BY THE U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, SOLICITED BIDS FOR ONE ITEM OF MODIFICATION KITS FOR USE IN THE SERGEANT MISSILE SYSTEM. WHEN THE BIDS WERE OPENED JUNE 1, 1966, AS SCHEDULED, OPPORTUNITIES UNLIMITED WAS FOUND TO BE THE LOWEST BIDDER.

OPPORTUNITIES UNLIMITED, AT THAT TIME, WAS DELINQUENT ON A PREVIOUS CONTRACT AND HAD RECEIVED AN UNFAVORABLE PREAWARD SURVEY ON MAY 26, 1966, WITH RESPECT TO A PREVIOUS INVITATION ISSUED BY THE SAME PROCUREMENT AGENCY. BECAUSE OF THESE FACTS AND THE UNUSUALLY LOW BID ON THIS INVITATION, THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY ON OPPORTUNITIES UNLIMITED.

THE PREVIOUS PREAWARD SURVEY OF MAY 26, 1966, HAD RECOMMENDED NO AWARD BECAUSE OF FINANCIAL INCAPACITY, AND SINCE NO NEW FINANCIAL INFORMATION WAS THEN AVAILABLE, THE FINANCIAL PORTION OF THE PREVIOUS SURVEY WAS INCORPORATED INTO THE NEW SURVEY. IN ADDITION, THE CURRENT SURVEY DISCLOSED A LACK OF PRODUCTION AND TECHNICAL CAPABILITY. IT WAS ALSO FURTHER DETERMINED THAT OPPORTUNITIES UNLIMITED WOULD BE UNABLE TO MEET THE REQUIRED PERFORMANCE AND DELIVERY SCHEDULE BECAUSE OF INADEQUATE PLANT FACILITIES AND EQUIPMENT. IN VIEW OF THESE FINDINGS, THE FACILITIES SURVEY OFFICER RECOMMENDED AGAINST AWARD TO OPPORTUNITIES UNLIMITED. THE CONTRACTING OFFICER THEREAFTER DETERMINED ON JUNE 29, 1966, THAT OPPORTUNITIES UNLIMITED WAS A NONRESPONSIBLE PROSPECTIVE CONTRACTOR PURSUANT TO ASPR 1-903.1/II) AND 1-903.1/III).

WHILE ORDINARILY THE MATTER OF YOUR NONRESPONSIBILITY SHOULD HAVE BEEN REFERENCED TO THE SMALL BUSINESS ADMINISTRATION, SUCH ACTION WAS NOT REQUIRED HERE SINCE THE ASSIGNED PRIORITY DESIGNATOR OF THE PROCUREMENT WAS UPGRADED FROM 99 TO 06 BECAUSE OF ITS ESSENTIAL NATURE AND URGENCY. IN VIEW THEREOF, THE CONTRACTING OFFICER CERTIFIED THAT AN URGENT REQUIREMENT EXISTED FOR THE ITEM AND THAT THE CONTRACT MUST BE AWARDED WITHOUT DELAY. THEREFORE, THE MATTER WAS NOT REFERRED TO SBA UNDER ASPR 1 -705.4/C) AND THE CONTRACT WAS AWARDED TO THE LOWEST RESPONSIBLE BIDDER ON JUNE 29, 1966.

THIS OFFICE HAS CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO DETERMINE THE RESPONSIBILITY OF A BIDDER (37 COMP. GEN. 430; 38 ID. 248; 39 ID. 468; 43 ID. 228), AND THAT SUCH DETERMINATION WILL NOT BE QUESTIONED BY THIS OFFICE IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 36 COMP. GEN. 42; 37 ID. 430; ID. 798; 38 ID. 131; ID. 778. WE FIND NO BASIS TO QUESTION THE CONTRACTING OFFICER'S DETERMINATION IN THIS CASE, ESPECIALLY IN VIEW OF ASPR 1- 705.4/C) (I) WHICH PROVIDES THAT REFERRAL TO THE SBA IS NOT NECESSARY WHERE, AS HERE, THE CONTRACTING OFFICER CERTIFIES IN WRITING THAT THE AWARD MUST BE MADE WITHOUT DELAY. SEE 38 COMP. GEN. 248.