B-161806, FEB. 26, 1968

B-161806: Feb 26, 1968

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FAILURE TO APPLY NECESSARY TENACITY AND PERSEVERANCE IN MEETING CONTRACT REQUIREMENTS MUST HAVE DETERMINATION WHICH IS SUPPORTED BY RECORD UPHELD. TO DERO RESEARCH AND DEVELOPMENT CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 14 AND LETTER DATED JUNE 16. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR ATTORNEY'S LETTER OF NOVEMBER 16. WHEREBY A REBUTTAL WAS SUBMITTED IN REPLY TO THE AIR FORCE REPORT OF OCTOBER 18. YOUR ATTORNEY WAS AFFORDED AN OPPORTUNITY TO COMMENT UPON SUCH ADDITIONAL INFORMATION. AWARD WAS MADE TO THE COLLINS RADIO COMPANY ON JUNE 13. RESPONSIBLE OFFEROR SINCE YOUR LOW OFFER WAS REJECTED ON THE BASIS THAT YOU DID NOT MEET THE MINIMUM STANDARDS OF RESPONSIBILITY PRESCRIBED BY ASPR 1-903.

B-161806, FEB. 26, 1968

BIDDERS - RESPONSIBILITY - PRIOR UNSATISFACTORY PERFORMANCE DECISION DENYING PROTEST OF DERO RESEARCH AND DEVELOPMENT CORPORATION AGAINST REJECTION OF BID BY AIR FORCE BECAUSE OF NONRESPONSIBILITY AND AWARD TO COLLINS RADIO CO. BIDDER DETERMINED TO BE NONRESPONSIBLE BECAUSE OF PRIOR UNSATISFACTORY PERFORMANCE ATTRIBUTABLE TO CAUSES OTHER THAN INADEQUATE CAPACITY OR CREDIT, NAMELY, FAILURE TO APPLY NECESSARY TENACITY AND PERSEVERANCE IN MEETING CONTRACT REQUIREMENTS MUST HAVE DETERMINATION WHICH IS SUPPORTED BY RECORD UPHELD.

TO DERO RESEARCH AND DEVELOPMENT CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 14 AND LETTER DATED JUNE 16, 1967, WITH ENCLOSURES, PROTESTING THE ACTION OF THE AFSC AERONAUTICAL SYSTEMS DIVISION, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, IN REJECTING YOUR LOW OFFER SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. F33657-67-R-1125. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR ATTORNEY'S LETTER OF NOVEMBER 16, 1967, WHEREBY A REBUTTAL WAS SUBMITTED IN REPLY TO THE AIR FORCE REPORT OF OCTOBER 18, 1967. ON THE BASIS OF FURTHER DISCUSSIONS WITH YOUR ATTORNEY, WE REQUESTED ADDITIONAL INFORMATION FROM THE AIR FORCE. UPON RECEIPT THEREOF, YOUR ATTORNEY WAS AFFORDED AN OPPORTUNITY TO COMMENT UPON SUCH ADDITIONAL INFORMATION.

AS YOU KNOW, AWARD WAS MADE TO THE COLLINS RADIO COMPANY ON JUNE 13, 1967, AS THE LOWEST RESPONSIVE, RESPONSIBLE OFFEROR SINCE YOUR LOW OFFER WAS REJECTED ON THE BASIS THAT YOU DID NOT MEET THE MINIMUM STANDARDS OF RESPONSIBILITY PRESCRIBED BY ASPR 1-903.

WE HAVE 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 OUR OFFICE IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 39 COMP. GEN. 705.

WE ARE ADVISED THAT YOU WERE DETERMINED TO BE NONRESPONSIBLE PRIMARILY BECAUSE OF YOUR PRIOR UNSATISFACTORY PERFORMANCE UNDER CONTRACTS NOS. AF- 33/657/-16809 AND F-33657-67-C-0632, AND THAT YOUR POOR PERFORMANCE WAS ATTRIBUTABLE TO CAUSES OTHER THAN INADEQUATE CAPACITY OR CREDIT, NAMELY, YOUR FAILURE TO APPLY THE NECESSARY TENACITY AND PERSEVERANCE IN MEETING THE EXISTING CONTRACT REQUIREMENTS. THE RECORD AT THE TIME OF THE NONRESPONSIBILITY DETERMINATION INDICATED THAT YOU WERE DELINQUENT UNDER CONTRACT NO. 16809 AND THAT THERE WAS A DISTINCT POSSIBILITY THAT YOU WOULD ALSO BE DELINQUENT UNDER CONTRACT NO. -0632. WHILE THE PRESENT RECORD INDICATES THAT YOU DID NOT BECOME DELINQUENT UNDER CONTRACT NO. - 0632, THE FACT REMAINS THAT AT THE TIME OF THE DETERMINATION, THE RECORD SUPPORTED A REASONABLE ASSUMPTION THAT YOU MIGHT BE DELINQUENT UNDER THAT CONTRACT. WHILE THE GENERAL SITUATION RESPECTING YOUR OVERALL CONTRACT PERFORMANCE MAY HAVE IMPROVED SUBSEQUENT TO THE NONRESPONSIBILITY DETERMINATION, THE FACT REMAINS THAT THE RECORD SUPPORTS THAT DETERMINATION WHEN MADE.

IT IS ARGUED THAT THE FACT THAT CONTRACT NO. -0632 WAS AWARDED TO YOU NOTWITHSTANDING THE AIR FORCE DISSATISFACTION WITH YOUR PERFORMANCE UNDER CONTRACT NO. -16809 MAY BE CONSTRUED ONLY AS A DETERMINATION THAT YOU WERE A RESPONSIBLE PERSEVERING CONTRACTOR. HOWEVER, IN OUR VIEW, THIS FACT DID NOT CONSTITUTE AN ACKNOWLEDGMENT OF YOUR RESPONSIBILITY OR OF YOUR ENTITLEMENT TO FURTHER AWARDS. B-155078, DECEMBER 1, 1964. IN FACT, YOU WERE FULLY AWARE THAT YOUR PRIOR POOR CONTRACT PERFORMANCE WAS A FACTOR IN DETERMINING YOUR RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR UNDER THE SUBJECT RFP. THE REGULATION PROMULGATED AT ASPR 1-904.1 PRECLUDES AN AWARD UNLESS THE CONTRACTING OFFICER MAKES AN AFFIRMATIVE DETERMINATION OF YOUR RESPONSIBILITY. THIS HE COULD NOT DO IN VIEW OF YOUR PRIOR RECORD OF POOR CONTRACT PERFORMANCE.

ALTHOUGH ASPR 1-705.4 REQUIRES THE CONTRACTING OFFICER TO NOTIFY THE SMALL BUSINESS ADMINISTRATION IF IT IS PROPOSED TO REJECT THE BID OF A SMALL BUSINESS CONCERN BECAUSE OF NONRESPONSIBILITY DUE TO A LACK OF "CAPACITY AND CREDIT," THAT REQUIREMENT IS NOT MANDATORY WHERE A BIDDER HAS BEEN FOUND TO BE LACKING IN RESPONSIBILITY DUE TO FACTORS OTHER THAN CAPACITY AND CREDIT. WE HAVE HELD THAT THE TERM "CAPACITY" AS CONTEMPLATED BY THE CERTIFICATE OF COMPETENCY AUTHORITY OF THE SMALL BUSINESS ADMINISTRATION INCLUDES ABILITY TO PERFORM, ORGANIZATION, EXPERIENCE, TECHNICAL KNOWLEDGE, SKILLS,"KNOW-HOW," TECHNICAL EQUIPMENT AND FACILITIES. 38 COMP. GEN. 864. HOWEVER, WE HAVE RECOGNIZED THAT POOR BUSINESS PRACTICES, SUCH AS DEMONSTRATED HERE, ARE MATTERS SOLELY WITHIN THE CONTRACTING OFFICER'S AUTHORITY AND NOT WITHIN THE SCOPE OF THE CERTIFICATE OF COMPETENCY PROCEDURES. 39 COMP. GEN. 868; 43 ID. 257; ID. 387.

WE HAVE CAREFULLY REVIEWED THE ENTIRE RECORD IN THE LIGHT OF YOUR REPRESENTATIONS, BOTH ORAL AND WRITTEN, AND WE FIND NO BASIS TO DISAGREE WITH THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY MADE WITH RESPECT TO THE SUBJECT RFP. ACCORDINGLY, YOUR PROTEST IS DENIED.