B-161307, SEP. 5, 1967

B-161307: Sep 5, 1967

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LOW BIDDER WHO ACCORDING TO PLANT SURVEY FACILITIES REPORT WAS FOUND DELINQUENT IN OTHER CONTRACTS. AS WELL AS INCAPABLE OF PRODUCING CURRENT NEEDS UNLESS PLANT WAS PLACED ON OVERTIME SCHEDULE. MAY NOT HAVE DETERMINATION OF NONRESPONSIBILITY QUESTIONED IN ABSENCE OF ANY LEGAL BASIS TO SHOW REJECTION OF BID AS IMPROPER OR LACKING A REASONABLE BASIS. IT IS ALSO SHOW THAT BIDDER WITHDREW APPLICATION FOR CERTIFICATE OF COMPETENCY FROM SBA. INC.: REFERENCE IS MADE TO YOUR LETTER OF APRIL 17. WHICHEVER WAS LATER. YOUR COMPANY WAS THE APPARENT LOW BIDDER ON SEVERAL ITEMS CONTAINED IN THE IFB. A PLANT FACILITIES SURVEY OF THE FOREIGN MANUFACTURING CONCERN WAS OBTAINED BY GSA. THE SURVEY OF THE JAPANESE SUPPLIER INDICATED IT WAS CAPABLE OF PRODUCING THE REQUIRED ITEMS PROVIDED THE FORGING SHOP WAS PLACED ON AN OVERTIME PRODUCTION SCHEDULE.

B-161307, SEP. 5, 1967

BIDDERS - RESPONSIBILITY - PERFORMANCE CAPABILITY DECISION TO FRANK AND WARREN, INC., PROTESTING REJECTION OF BID FOR REQUIREMENTS-TYPE CONTRACT FOR WRENCHES ON BASIS OF LACK OF RESPONSIBILITY. LOW BIDDER WHO ACCORDING TO PLANT SURVEY FACILITIES REPORT WAS FOUND DELINQUENT IN OTHER CONTRACTS, AS WELL AS INCAPABLE OF PRODUCING CURRENT NEEDS UNLESS PLANT WAS PLACED ON OVERTIME SCHEDULE, MAY NOT HAVE DETERMINATION OF NONRESPONSIBILITY QUESTIONED IN ABSENCE OF ANY LEGAL BASIS TO SHOW REJECTION OF BID AS IMPROPER OR LACKING A REASONABLE BASIS. IT IS ALSO SHOW THAT BIDDER WITHDREW APPLICATION FOR CERTIFICATE OF COMPETENCY FROM SBA.

TO FRANK AND WARREN, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1967, IN WHICH YOU PROTEST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS (IFB) FPNTT-D8-56221-A -2-24-67, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) ON JANUARY 27, 1967. THE INVITATION CALLED FOR BIDS FOR THE NORMAL REQUIREMENTS OF GSA SUPPLY DEPOTS FOR CLASS 5120-WRENCHES, COMBINATION BOX AND OPEN END, NONADJUSTABLE, FOR THE PERIOD APRIL 1, 1967, OR DATE OF AWARD, WHICHEVER WAS LATER, THROUGH MARCH 31, 1968. YOUR COMPANY WAS THE APPARENT LOW BIDDER ON SEVERAL ITEMS CONTAINED IN THE IFB, OFFERING WRENCHES TO BE MANUFACTURED IN PUERTO RICO FROM BLANK FORGINGS TO BE PRODUCED IN JAPAN. A PLANT FACILITIES SURVEY OF THE FOREIGN MANUFACTURING CONCERN WAS OBTAINED BY GSA, IN ADDITION TO A SIMILAR SURVEYS WITH RESPECT TO YOUR BROOKLYN, NEW YORK OPERATION AND PROPOSED FACILITIES IN PUERTO RICO.

THE SURVEY OF THE JAPANESE SUPPLIER INDICATED IT WAS CAPABLE OF PRODUCING THE REQUIRED ITEMS PROVIDED THE FORGING SHOP WAS PLACED ON AN OVERTIME PRODUCTION SCHEDULE. HOWEVER, IT WAS REPORTED THE ANTICIPATED MINIMUM DELIVERY TIME OF THE PRODUCTS WOULD MAKE IT DIFFICULT FOR YOU TO COMPLY WITH THE DELIVERY DATES TO THE GOVERNMENT INDICATED IN YOUR BID. THE REPORT ON YOUR BROOKLYN OPERATION CONCLUDED THAT YOUR COMPANY WOULD PROBABLY BE "INCAPABLE OF PERFORMING" THE CONTRACT, ON THE BASIS OF YOUR RECORD OF SERIOUS DELINQUENCIES ON OTHER CONTRACTS WITH GSA AND YOUR LACK OF EXPERIENCE WITH THE TYPE OF OPERATION PROPOSED. FROM THESE REPORTS THE CONTRACTING OFFICER DETERMINED THAT YOU COULD NOT BE CONSIDERED AS A RESPONSIBLE BIDDER. HOWEVER, SINCE YOUR FIRM IS A SMALL BUSINESS, THE MATTER OF YOUR RESPONSIBILITY WAS, IN ACCORDANCE WITH LAW, REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION OF THE ISSUANCE OF A CERTIFICATE OF COMPETENCY. BY LETTER DATED JULY 12, 1967, SBA ADVISED THAT YOU HAD WITHDRAWN YOUR APPLICATION FOR THIS CERTIFICATE AND THAT IT ACCORDINGLY CONSIDERED THE CASE CLOSED.

THE DETERMINATION OF THE QUALIFICATIONS OF A BIDDER IS PRIMARILY THE FUNCTION OF THE PROCUREMENT AGENCY, AND AWARD OF A CONTRACT MAY BE MADE ONLY AFTER THE CONTRACTING OFFICER HAS AFFIRMATIVELY DETERMINED THAT THE BIDDER IS RESPONSIBLE. IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR A DETERMINATION OF NONRESPONSIBILITY, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE REQUIRING ACTIVITY. COMP. GEN. 798. CAREFUL EXAMINATION OF THE RECORD FAILS TO DISCLOSE ANY LEGAL BASIS TO CONSIDER THE REJECTION OF YOUR BID FOR THE ABOVE REASONS AS IMPROPER OR LACKING A REASONABLE BASIS, AND YOUR PROTEST MUST THEREFORE BE DENIED.