B-161373, SEP. 7, 1967

B-161373: Sep 7, 1967

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LOW BIDDER WHO WAS DETERMINED TO LACK CAPABILITY TO PERFORM BY PLANT FACILITIES SURVEY AND WHO SUBSEQUENTLY WITHDREW APPLICATION MADE WITH SBA FOR CERTIFICATE OF COMPETENCY HAS NOT PRESENTED ANY BASIS FOR LEGAL OBJECTION TO DETERMINATION OF NONRESPONSIBILITY AND PROTEST IS DENIED. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 25. WHICHEVER IS LATER. WHEN BIDS WERE OPENED MARCH 24. YOU WERE DETERMINED TO BE THE LOW BIDDER ON ITEMS 1. A PLANT FACILITIES SURVEY WAS CONDUCTED TO DETERMINE YOUR CAPABILITY. CONCLUDED THAT YOUR FIRM WAS "INCAPABLE OF PERFORMING.'. IN VIEW OF THE FACT THAT FRANK AND WARREN IS A SMALL BUSINESS FIRM. THE SMALL BUSINESS ADMINISTRATION WAS ASKED BY LETTER OF JUNE 9.

B-161373, SEP. 7, 1967

BIDDERS - RESPONSIBILITY - PERFORMANCE CAPABILITY DECISION TO FRANK AND WARREN, INC., PROTESTING REJECTION OF BID FOR REQUIREMENTS-TYPE CONTRACT FOR SPANNER WRENCHES BY GSA. LOW BIDDER WHO WAS DETERMINED TO LACK CAPABILITY TO PERFORM BY PLANT FACILITIES SURVEY AND WHO SUBSEQUENTLY WITHDREW APPLICATION MADE WITH SBA FOR CERTIFICATE OF COMPETENCY HAS NOT PRESENTED ANY BASIS FOR LEGAL OBJECTION TO DETERMINATION OF NONRESPONSIBILITY AND PROTEST IS DENIED.

TO FRANK AND WARREN, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1967, PROTESTING THE POSSIBLE REJECTION OF YOUR BID UNDER INVITATION NO. FPNTT-D3-56159-A-3 -24-67 ISSUED BY THE FEDERAL SUPPLY SERVICE ON MARCH 6, 1967 FOR SPANNER WRENCHES.

THE INVITATION CALLED FOR MEETING THE GSA SUPPLY DEPOT REQUIREMENTS FOR THE WRENCHES FROM APRIL 1, 1967, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH MARCH 31, 1968. WHEN BIDS WERE OPENED MARCH 24, 1967, YOU WERE DETERMINED TO BE THE LOW BIDDER ON ITEMS 1, 2, 3, AND 17.

BECAUSE OF A SEQUENCE OF PRIOR FINDINGS, A PLANT FACILITIES SURVEY WAS CONDUCTED TO DETERMINE YOUR CAPABILITY. THE REPORT DATED MAY 12, 1967, CONCLUDED THAT YOUR FIRM WAS "INCAPABLE OF PERFORMING.' IN VIEW OF THE FACT THAT FRANK AND WARREN IS A SMALL BUSINESS FIRM, AND PURSUANT TO FPR-1 -1.708.2, THE SMALL BUSINESS ADMINISTRATION WAS ASKED BY LETTER OF JUNE 9, 1967, WHETHER IT WOULD ELECT TO ISSUE A CERTIFICATE OF COMPETENCY (COC) IN FAVOR OF FRANK AND WARREN. THE SBA RESPONDED BY LETTER ON JUNE 14, 1967, THAT FRANK AND WARREN WOULD FILE APPLICATION FOR A COC ON THE INVITATION FOR BIDS. SUBSEQUENTLY, HOWEVER, BY LETTER OF JUNE 23, 1967, SBA ADVISED THAT FRANK AND WARREN HAD WITHDRAWN ITS APPLICATION. FOLLOWING THIS NOTIFICATION, THE CONTRACTING OFFICER DETERMINED ON JULY 24, 1967, THAT FRANK AND WARREN WAS NON-RESPONSIBLE AS A BIDDER UNDER THE INVITATION.

THIS OFFICE HAS REPEATEDLY RULED, 38 COMP. GEN. 131; 37 ID. 798, 800; ID. 430, 435, THAT THE DETERMINATION AS TO THE RESPONSIBILITY OF A PROPOSED CONTRACTOR IS PRIMARILY THE FUNCTION OF THE PROCUREMENT AGENCY SUBJECT, IN THE CASE OF A SMALL BUSINESS CONCERN, TO THE AUTHORITY OF SBA TO ISSUE A CERTIFICATE OF COMPETENCY. IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR OBVIOUS ABUSE OF ADMINISTRATIVE DISCRETION, WE WILL NOT OBJECT TO A DETERMINATION OF NON RESPONSIBILITY BY THE CONTRACTING OFFICER. WHERE, AS HERE, THERE APPEARS TO BE AN ADEQUATE BASIS FOR THE CONTRACTING OFFICER'S DECISION THAT THE BIDDER IS NOT RESPONSIBLE, AND THAT BIDDER HAS WITHDRAWN AN APPLICATION FOR A COC, THEREBY WAIVING ITS RIGHT TO A DETERMINATION BY THE SBA, THIS OFFICE WILL NOT TAKE EXCEPTION TO THE CONTRACTING OFFICER'S DETERMINATION. SEE B-149307, AUGUST 14, 1962.