B-159717, OCT. 7, 1966

B-159717: Oct 7, 1966

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INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 19. YOUR BID WAS THE LOWEST OF THE FOUR RECEIVED BUT SINCE YOUR COMPANY HAD NO PREVIOUS EXPERIENCE MANUFACTURING THE REQUIRED EQUIPMENT A PRE AWARD SURVEY WAS REQUESTED BY THE PROCURING ACTIVITY PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-904.1. WHICH STATES GENERALLY THAT BEFORE A CONTRACT MAY BE AWARDED TO ANY PERSON THE CONTRACTING OFFICER SHALL FIRST MAKE A WRITTEN DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE GUIDELINES SET FORTH IN ASPR 1 902. THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER WITH RESPECT TO THIS PROCUREMENT. IT IS A WELL-SETTLED RULE THAT OUR OFFICE WILL NOT INTERFERE WITH SUCH A DETERMINATION IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR. 37 COMP.

B-159717, OCT. 7, 1966

TO MCKEE AND MCHALE, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF JULY 19, 1966, PROTESTING THE ACTION OF THE NAVY PURCHASING OFFICE IN REJECTING YOUR BID UNDER INVITATION FOR BIDS NO. 600-861-66, OPENED APRIL 28, 1966. THE INVITATION SOLICITED BIDS ON THE PROCUREMENT OF 196 FIXED PLATFORM AIRFIELD MAINTENANCE TRUCKS, PROVISIONING DATA FOR REPAIR PARTS, AND TECHNICAL MANUALS REQUIRED FOR USE AT NAVAL AIR STATIONS AND FACILITIES BOTH WITHIN THE UNITED STATES AND OVERSEAS.

YOUR BID WAS THE LOWEST OF THE FOUR RECEIVED BUT SINCE YOUR COMPANY HAD NO PREVIOUS EXPERIENCE MANUFACTURING THE REQUIRED EQUIPMENT A PRE AWARD SURVEY WAS REQUESTED BY THE PROCURING ACTIVITY PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-904.1, WHICH STATES GENERALLY THAT BEFORE A CONTRACT MAY BE AWARDED TO ANY PERSON THE CONTRACTING OFFICER SHALL FIRST MAKE A WRITTEN DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE GUIDELINES SET FORTH IN ASPR 1 902.

THE PRE-AWARD SURVEY, COMPLETED ON JUNE 17, 1966, RECOMMENDED THAT NO AWARD BE MADE TO YOUR FIRM FOR THE FOLLOWING REASONS:

A. INADEQUATE PRODUCTION FACILITIES;

B. LACK OF AVAILABLE SKILLED PERSONNEL;

C. LACK OF EVIDENCE OF THE AVAILABILITY OF SUFFICIENT FUNDS WITH WHICH TO PERFORM THE PROPOSED CONTRACT.

FOLLOWING THE CONTRACTING OFFICER'S RECEIPT OF THE ABOVE-CITED PRE AWARD SURVEY AND HIS TENTATIVE DETERMINATION OF YOUR FIRM'S NON RESPONSIBILITY, YOU FILED FOR A CERTIFICATE OF COMPETENCY FROM THE SMALL BUSINESS ADMINISTRATION (SBA). ON JULY 18, 1966, THE SBA NOTIFIED THE NAVY PURCHASING OFFICE THAT "BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION, THIS AGENCY HAS DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY IN THIS INSTANCE.'

BASED ON THE FOREGOING SET OF FACTS, THE CONTRACTING OFFICER DETERMINED THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER WITH RESPECT TO THIS PROCUREMENT, AND AWARDED THE CONTRACT TO THE NEXT LOW BIDDER.

IT IS A WELL-SETTLED RULE THAT OUR OFFICE WILL NOT INTERFERE WITH SUCH A DETERMINATION IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR. 37 COMP. GEN. 430. THE REASONS UNDERLYING THIS RULE ARE SET OUT IN OUR DECISION AT 39 COMP. GEN. 705, IN PART, AS FOLLOWS:

"* * * WHILE SUCH JUDGMENT SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICES INVOLVED, SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY TO DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING OFFICIALS. * * *.'

MOREOVER, WE HAVE HELD THAT THE REFUSAL OF SBA TO ISSUE A CERTIFICATE OF COMPETENCY TO A SMALL BUSINESS BIDDER MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OF THE BIDDER CONCERNED. WHEN THE ISSUANCE OF A CERTIFICATE OF COMPETENCY IS DENIED, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED.

IN VIEW OF THE FOREGOING, WE WOULD NOT BE JUSTIFIED, ON THE PRESENT RECORD, IN QUESTIONING THE ADMINISTRATIVE DETERMINATION IN THIS CASE.