B-161441, JUN. 30, 1967

B-161441: Jun 30, 1967

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 11. BIDS WERE OPENED ON MARCH 28. YOUR COMPANY WAS THE LOW BIDDER ON ITEM NO. 5-11. AWARD WAS MADE TO THE NEXT LOW BIDDER ON MAY 3. YOU ACKNOWLEDGE THE GOVERNMENT'S RIGHT TO REVIEW YOUR QUALIFICATIONS BUT ASSERT THAT AN OPPORTUNITY TO PRESENT A DEFENSE SHOULD HAVE BEEN AFFORDED YOUR COMPANY. CONTRACTING OFFICER WAS CALLED ON THE MORNING OF MAY 3 AND HE INDICATED THAT NO AWARD WAS MADE BUT THAT AIRFLOTE. PROTEST OF MAY 3 WAS FILED. "3. CUOCOLO AND WAS INFORMED: (A) AN AWARD WAS NOT YET MADE. (C) THE INTERNAL REPORTS HE HAS AVAILABLE INDICATE THAT AIRFLOTE DOES NOT HAVE THE CAPABILITIES TO PERFORM AND MIGHT BE CONSIDERED IRRESPONSIBLE.

B-161441, JUN. 30, 1967

TO AIRFLOTE, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1967, AND OTHER CORRESPONDENCE PROTESTING THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOUR FIRM--- A SMALL BUSINESS CONCERN--- UNDER ITEM NO. 5-11 OF INVITATION FOR BIDS NO. 100-67-B-1689 ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER ON MARCH 7, 1967.

BIDS WERE OPENED ON MARCH 28, 1967, AND YOUR COMPANY WAS THE LOW BIDDER ON ITEM NO. 5-11,"APRON TOXICOLOGICAL AGENTS PROTECTIVE.' ACCORDINGLY, ON MARCH 31, 1967, THE CONTRACTING OFFICER ORDERED PREAWARD SURVEY MADE TO DETERMINE YOUR RESPONSIBILITY. THE PREAWARD SURVEY REPORT RECOMMENDED NO AWARD BE MADE TO YOUR COMPANY ON THE BASIS OF UNSATISFACTORY FINDINGS AS TO PRODUCTION CAPABILITY, PERFORMANCE RECORD, AND ABILITY TO MEET THE REQUIRED SCHEDULE. AWARD WAS MADE TO THE NEXT LOW BIDDER ON MAY 3, 1967.

BY LETTER OF MAY 11, 1967, YOU ACKNOWLEDGE THE GOVERNMENT'S RIGHT TO REVIEW YOUR QUALIFICATIONS BUT ASSERT THAT AN OPPORTUNITY TO PRESENT A DEFENSE SHOULD HAVE BEEN AFFORDED YOUR COMPANY. YOU ALSO ASSERT THAT THE GOVERNMENT ACTED IN A SURREPTITIOUS AND DECEITFUL MANNER. IN SUPPORT OF THAT CONTENTION, YOU SET FORTH THE FOLLOWING FACTS.

"1. MR. J. CUOCOLO, CONTRACTING OFFICER WAS CALLED ON THE MORNING OF MAY 3 AND HE INDICATED THAT NO AWARD WAS MADE BUT THAT AIRFLOTE, INC. WOULD NOT BE THE RECIPIENT.

"2. PROTEST OF MAY 3 WAS FILED.

"3. LATER THAT DAY, MR. GERSTEIN, OUR CONTRACT SPECIALIST CALLED MR. CUOCOLO AND WAS INFORMED:

(A) AN AWARD WAS NOT YET MADE.

(B) NO DECISION HAS BEEN MADE RELATIVE TO THE AWARD AND AIRFLOTE HAS NOT YET BEEN ELIMINATED FROM CONTENTION.

(C) THE INTERNAL REPORTS HE HAS AVAILABLE INDICATE THAT AIRFLOTE DOES NOT HAVE THE CAPABILITIES TO PERFORM AND MIGHT BE CONSIDERED IRRESPONSIBLE.

(D) MR. GERSTEIN SUGGESTED THAT RATHER GO THROUGH THE PROBLEM AND EFFORTS ATTENDANT TO OBTAINING A CERTIFICATE OF COMPETENCY FROM THE SBA. AIRFLOTE WILL BE PERMITTED TO RESPOND, AND BE ADVISED OF THE EVIDENCE RELATIVE TO ITS ALLEGED DEFICIENCIES AND INCAPABILITY OF PERFORMANCE. MR. CUOCOLO SAID THAT HE DID NOT KNOW THAT DIRECTION HE WOULD TAKE IN THIS MATTER, AND THE SUGGESTION WAS PREMATURE.'

THIS OFFICE WAS ADVISED THAT THE CONTRACTING OFFICER, MR. CUOCOLO, DID HAVE CONVERSATIONS WITH MR. DAVIS AND LATER MR. GERSTEIN ON MAY 3,1967. WE WERE ADVISED THAT THE SUBSTANCE OF THE CONVERSATION WITH MR. DAVIS WAS AS YOU REPORTED. HOWEVER, IN THE CONVERSATION WITH MR. GERSTEIN, IT IS CONTENDED THAT THE CONTRACTING OFFICER STATED ONLY THAT NO AWARD HAD BEEN MADE, NOT THAT A DETERMINATION AS TO YOUR RESPONSIBILITY HAD NOT BEEN MADE, AND THAT YOUR COMPANY WAS CONSIDERED NONRESPONSIBLE, NOT IRRESPONSIBLE. FURTHER, THE CONTRACTING OFFICER DENIED THE ALLEGED STATEMENT TO MR. GERSTEIN THAT HE DID NOT KNOW WHAT ACTION HE WOULD TAKE WITH RESPECT TO GOING TO THE SMALL BUSINESS ADMINISTRATION. RATHER, THE CONTRACTING OFFICER IS SAID TO HAVE STATED THAT HE DID NOT HAVE TO GO TO SBA TO SUPPORT REJECTION OF AIRFLOTE AS NONRESPONSIBLE.

WITH RESPECT TO WHETHER THE STATEMENTS WERE MADE TO DECEIVE YOUR COMPANY, IT IS POINTED OUT THAT AT THE TIMES MESSRS. DAVIS AND GERSTEIN WERE ADVISED NO AWARD HAD BEEN MADE, SUCH STATEMENTS WERE TRUE. AWARD OF CONTRACT WAS NOT MADE UNTIL LATER, APPROXIMATELY 4:00 P.M., ON MAY 3, 1967. FURTHER, WHILE YOUR PROTEST WAS DATED MAY 3, 1967, AND MAILED ON THAT DATE, IT WAS NOT RECEIVED BY THE CONTRACTING OFFICER UNTIL MAY 4, 1967, OR AFTER AWARD WAS MADE. THERE IS ALSO NO EVIDENCE OF A PRIOR ORAL PROTEST BY AIRFLOTE. THEREFORE, ALTHOUGH SOME MISUNDERSTANDING AS TO THE SUBSTANCE OF YOUR CONVERSATIONS OCCURRED, WE CANNOT CONCUR IN YOUR OPINION THAT THE CONTRACTING OFFICER ACTED IN A SURREPTITIOUS AND DECEITFUL MANNER.

AS PREVIOUSLY NOTED, YOU RECOGNIZED THE CONTRACTING OFFICER'S RIGHT TO REVIEW YOUR QUALIFICATIONS. ARMED SERVICES PROCUREMENT REGULATION 1-905.4 (A) PROVIDES THAT THE CONTRACTING OFFICER, IN DETERMINING RESPONSIBILITY OF A BIDDER MAY USE (I) DATA ON HAND; (II) DATA FROM OTHER GOVERNMENT AGENCIES OR COMMERCIAL SOURCES; (III) AN ON-SITE INSPECTION; OR (IV) ANY COMBINATION OF THESE. THERE IS NO REQUIREMENT THAT YOU BE PROVIDED A BILL OF PARTICULARS AND AN OPPORTUNITY TO PRESENT A DEFENSE. WE HAVE CONSISTENTLY HELD THAT IT IS THE DUTY OF THE CONTRACTING OFFICER TO DETERMINE TO HIS SATISFACTION THE RESPONSIBILITY OF A BIDDER. 37 COMP. GEN. 430; 38 ID. 248; 39 ID. 468; 43 ID. 228. SUCH A DETERMINATION WILL NOT BE QUESTIONED BY THIS OFFICE IN THE ABSENCE OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 36 COMP. GEN. 42; 37 ID. 430; ID. 798; 38 ID. 131; ID. 778. NORMALLY WHEN A BID OF A SMALL BUSINESS CONCERN IS TO BE REJECTED FOR NONRESPONSIBILITY, THE MATTER MUST BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION. HOWEVER, ASPR 1-705.4 (C) (IV) PROVIDES A REFERRAL NEED NOT BE MADE TO THE SBA IF THE AWARD MUST BE MADE WITHOUT DELAY. SEE 38 COMP. GEN. 248.

BECAUSE OF THE TIME LAPSE BETWEEN THE DETERMINATION OF URGENCY PURSUANT TO ASPR 1-705.4 (C) (IV) AND THE SUBSEQUENT AWARD, A REFERRAL TO SBA WOULD NOT IN FACT HAVE DELAYED THIS PROCUREMENT. TO PRECLUDE RECURRENCE OF SUCH SITUATIONS THE DEFENSE SUPPLY AGENCY ON JUNE 14, 1967, ISSUED A DIRECTIVE PROVIDING THAT WHERE A SMALL BUSINESS IS DETERMINED NONRESPONSIBLE FOR LACK OF CAPACITY OR CREDIT ON AN URGENT PROCUREMENT, AND AWARD TO NEXT LOW RESPONSIBLE BIDDER CANNOT BE MADE WITHIN THE TIME ALLOCABLE TO SBA FOR ITS REVIEW, SBA SHOULD BE GIVEN AN OPPORTUNITY TO ISSUE A CERTIFICATE OF COMPETENCY.

WE ARE IN ACCORD WITH THE POLICY EXPRESSED IN THE DEFENSE SUPPLY AGENCY DIRECTIVE. HOWEVER, WE MUST CONCLUDE THAT THE ACTION OF THE CONTRACTING OFFICER AT THE TIME RESULTED IN A VALID AWARD.