B-162031, NOV. 27, 1967

B-162031: Nov 27, 1967

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ALTHOUGH THE MATTER OF A BIDDER'S CAPACITY TO PERFORM ON A CANCELLED CONTRACT SHOULD HAVE BEEN SUBMITTED TO SBA. THERE IS NO AWARD CONTEMPLATED OR CONTRACT IN EXISTENCE THEREFORE COMP. IS UNABLE TO DIRECT THAT INTERIOR TAKE SUCH ACTION OR THAT SBA CONSIDER THE MATTER. YOU NOW REQUEST THAT WE RECONSIDER AND DECIDE WHETHER YOU HAD SUBMITTED A RESPONSIVE BID AND WHETHER YOU WERE QUALIFIED TO PERFORM THE REQUIRED WORK. SINCE IT WOULD NOT APPEAR THAT YOUR BUSINESS REPUTATION COULD HAVE BEEN DAMAGED BY INTERIOR'S DETERMINATION THAT YOUR BID WAS NONRESPONSIVE. YOU ARE ADVISED THAT THE JURISDICTION OF THIS OFFICE IN BID PROTEST CASES IS BASED SOLELY UPON OUR AUTHORITY TO PASS UPON THE LEGALITY OF FUNDS WHICH ARE TO BE EXPENDED UNDER THE CONTRACT TO WHICH THE PROTEST IS DIRECTED.

B-162031, NOV. 27, 1967

BIDDERS - RESPONSIBILITY - ADMINISTRATIVE DETERMINATION DECISION CONCERNING CANCELLATION OF CONTRACT FOR EXTERIOR RESTORATION OF HAMPTON MANSION, TOWSON, MD., BY INTERIOR. ALTHOUGH THE MATTER OF A BIDDER'S CAPACITY TO PERFORM ON A CANCELLED CONTRACT SHOULD HAVE BEEN SUBMITTED TO SBA, THERE IS NO AWARD CONTEMPLATED OR CONTRACT IN EXISTENCE THEREFORE COMP. GEN. IS UNABLE TO DIRECT THAT INTERIOR TAKE SUCH ACTION OR THAT SBA CONSIDER THE MATTER. SEE DECISION OF OCT. 5, 1967.

TO MR. MARVIN P. SADUR:

ON OCTOBER 16, 1967, YOU REQUESTED OUR DECISION CONCERNING THE ISSUES RAISED IN YOUR LETTER OF JULY 11, 1967, REGARDING THE PROPRIETY OF AN AWARD MADE TO THE ROCKWELL NEWMAN COMPANY BY THE DEPARTMENT OF INTERIOR FOR THE EXTERIOR RESTORATION OF HAMPTON MANSION, TOWSON, MARYLAND. IN OUR LETTER OF OCTOBER 5, 1967, WE ADVISED YOU THAT THE SUBJECT MATTER OF THE CONTROVERSY, THE AWARD TO THE ROCKWELL NEWMAN COMPANY, HAD BEEN CANCELLED; CONSEQUENTLY, WE DECLINED TO CONSIDER THE MERITS OF YOUR PROTEST. YOU NOW REQUEST THAT WE RECONSIDER AND DECIDE WHETHER YOU HAD SUBMITTED A RESPONSIVE BID AND WHETHER YOU WERE QUALIFIED TO PERFORM THE REQUIRED WORK. BECAUSE OF THESE UNRESOLVED QUESTIONS YOU MAINTAIN THAT YOUR BUSINESS REPUTATION HAS BEEN PREJUDICED.

SINCE IT WOULD NOT APPEAR THAT YOUR BUSINESS REPUTATION COULD HAVE BEEN DAMAGED BY INTERIOR'S DETERMINATION THAT YOUR BID WAS NONRESPONSIVE, EXCEPT TO THE EXTENT THAT SUCH DETERMINATION ALSO JUDGED YOUR COMPETENCY TO PERFORM THE REQUIRED WORK, WE CONSIDER YOUR LETTER OF OCTOBER 16 AS REQUESTING OUR OFFICE TO EITHER OVERRULE INTERIOR'S DETERMINATION OR TO REQUIRE THE DEPARTMENT TO REFER THE QUESTION OF YOUR CAPACITY TO PERFORM THE WORK ON THE CANCELLED PROCUREMENT TO THE SMALL BUSINESS ADMINISTRATION (SBA). IN THIS CONNECTION, YOU ARE ADVISED THAT THE JURISDICTION OF THIS OFFICE IN BID PROTEST CASES IS BASED SOLELY UPON OUR AUTHORITY TO PASS UPON THE LEGALITY OF FUNDS WHICH ARE TO BE EXPENDED UNDER THE CONTRACT TO WHICH THE PROTEST IS DIRECTED. A DECISION BY THE CONTRACTING AGENCY THAT NO CONTRACT WILL BE AWARDED, OR THAT A CONTRACT ALREADY AWARDED SHALL BE TERMINATED AT NO COST TO THE GOVERNMENT, THEREFORE PRECLUDES THIS OFFICE FROM TAKING ANY EFFECTIVE ACTION BASED UPON A BID PROTEST. B-139622, OCTOBER 12, 1959. THUS, WHILE WE BELIEVE THAT THE QUESTION PRESENTED BY YOUR BID IN THE INSTANT CASE WAS ONE OF RESPONSIBILITY WHICH SHOULD HAVE BEEN SUBMITTED TO THE SBA PRIOR TO AWARD, THERE IS NO AWARD CONTEMPLATED, OR CONTRACT IN EXISTENCE, AT THE PRESENT TIME, AND WE ARE THEREFORE UNABLE TO DIRECT THAT SUCH ACTION NOW BE TAKEN BY INTERIOR, OR TO DIRECT THE SBA TO CONSIDER THE MATTER IN THE EVENT IT SHOULD NOW BE REFERRED BY INTERIOR. IN THIS CONNECTION, SEE THE AUTHORITY OF SBA TO CERTIFY THE CAPACITY AND CREDIT OF ANY SMALL BUSINESS CONCERN, WHICH IS SET OUT IN THE SMALL BUSINESS ACT (15 U.S.C. 637 (B) (7/), AS FOLLOWS:

"/7) TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICERS, AND OFFICERS ENGAGED IN THE SALE AND DISPOSAL OF FEDERAL PROPERTY, WITH RESPECT TO THE COMPETENCY, AS TO CAPACITY AND CREDIT, OF ANY SMALL-BUSINESS CONCERN OR GROUP OF SUCH CONCERNS TO PERFORM A SPECIFIC GOVERNMENT CONTRACT. IN ANY CASE IN WHICH A SMALL-BUSINESS CONCERN OR GROUP OF SUCH CONCERNS HAS BEEN CERTIFIED BY OR UNDER THE AUTHORITY OF THE ADMINISTRATION TO BE A COMPETENT GOVERNMENT CONTRACTOR WITH RESPECT TO CAPACITY AND CREDIT AS TO A SPECIFIC GOVERNMENT CONTRACT, THE OFFICERS OF THE GOVERNMENT HAVING PROCUREMENT OR PROPERTY DISPOSAL POWERS ARE DIRECTED TO ACCEPT SUCH CERTIFICATION AS CONCLUSIVE, AND ARE AUTHORIZED TO LET SUCH GOVERNMENT CONTRACT TO SUCH CONCERN OR GROUP OF CONCERNS WITHOUT REQUIRING IT TO MEET ANY OTHER REQUIREMENT WITH RESPECT TO CAPACITY AND CREDIT; * * * " WE INTERPRET THIS PROVISION AS REQUIRING SBA CONSIDERATION OF THE CAPACITY OF A SMALL BUSINESS CONCERN ONLY WHERE THE POSSIBILITY OF AN AWARD EXISTS.

WHETHER THE BUSINESS REPUTATION OF THE STAUFFER COMPANY HAS, IN FACT, BEEN DAMAGED BY INTERIOR'S ACTION IS A MATTER ON WHICH WE HAVE NO INFORMATION, AND IT MUST BE RECOGNIZED, OF COURSE, THAT ANY REVIEW OF THE MATTER BY INTERIOR OR SBA WOULD NOT NECESSARILY RESULT IN A FINDING THAT YOUR FIRM IS QUALIFIED TO PERFORM, OR CAPABLE OF PERFORMING, THE WORK IN QUESTION. NEITHER WOULD A DETERMINATION THAT THE COMPANY IS CAPABLE OF PERFORMING THE RESTORATION WORK ON THE HAMPTON MANSION NECESSARILY INDICATE THAT IT WOULD BE CONSIDERED QUALIFIED TO PERFORM ANY FUTURE CONTRACT FOR WORK WHICH IS NOT IDENTICAL WITH THAT AT HAMPTON MANSION. VIEW THEREOF, ANY CONSIDERATION BY THIS OFFICE OF THE COMPANY'S ABILITY TO PERFORM A PARTICULAR TYPE OF WORK MUST BE POSTPONED UNTIL SUCH TIME AS THE COMPANY AGAIN SUBMITS A LOW BID FOR A FUTURE CONTRACT, AND UNTIL THE MATTER IS AGAIN SUBMITTED TO THIS OFFICE AS A CASE IN CONTROVERSY BY THE CONTRACTING AGENCY, BY THE SBA, OR BY YOUR COMPANY IN THE FORM OF A BID PROTEST.