B-163881, MAY 14, 1968

B-163881, MAY 14, 1968

TO HERMETIC AIRCRAFT INSTRUMENT CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, ENCLOSING FOR OUR ATTENTION A COPY OF YOUR LETTER OF MARCH 19, 1968, ADDRESSED TO THE DIRECTORATS OF PROCUREMENT AND PRODUCTION, OKLAHOMA CITY AIR MATERIAL AREA, TINKER AIR FORCE BASE, OKLAHOMA, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER REQUEST FOR PROPOSALS NO. F34601-68R 3092.

THIS SOLICITATION, ISSUED ON DECEMBER 12, 1967, INVITED OFFERS FOR FUNCTIONAL TEST INSPECTION-ESSENTIAL REPAIR, OVERHAUL AND/OR MODIFICATION OF OF REPARABLE COMPONENTS APPLICABLE TO THE E-4 AUTOPILOT OF NUMEROUS AIRCRAFT. EIGHT (8) RESPONSES WERE RECEIVED AND THE LOW OFFEROR WAS ARIZONA INSTRUMENT CORPORATION, PHOENIX, ARIZONA. HOWEVER, AFTER A PREAWARD SURVEY WAS MADE ON SAID FIRM ON FEBRUARY 2, 1968, A RECOMMENDATION OF "NO AWARD" WAS MADE.

ON FEBRUARY 8, 1968, A PREAWARD SURVEY WAS REQUESTED BY THE CONTRACTING OFFICER ON YOUR FIRM, THE SECOND LOW OFFEROR. THE PREAWARD SURVEY WAS COMPLETED ON FEBRUARY 27, 1968, AND A RECOMMENDATION OF "NO AWARD" WAS RECEIVED. THE BASIS STATED BY THE SURVEY TEAM FOR THIS RECOMMENDATION WAS YOUR FAILURE TO SATISFACTORILY DEMONSTRATE THE FOLLOWING FACTORS:

(1) ADEQUACY OF PRODUCTION CAPABILITY

(2) ADEQUACY OF PLANT FACILITIES AND EQUIPMENT

(3) ADEQUACY OF LABOR RESOURCES

(4) ABILITY TO MEET REQUIRED DELIVERY SCHEDULE.

THEREAFTER, ON MARCH 4, 1968, THE CONTRACTING OFFICER, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-904.1, MADE THE FOLLOWING DETERMINATIONS:"A. CONTRACTOR HAS EXHIBITED AN UNSATISFACTORY PERFORMANCE RESULTING FROM FAILURE TO APPLY TENACITY, PERSEVERANCE, AND PROPER PLANNING IN THE PURSUIT OF HIS CONTRACTUAL OBLIGATIONS WITH THE GOVERNMENT. ON CONTRACT F34601-68-D-0001, WITH A TOTAL OF ELEVEN (11) LINE ITEMS, THREE (3) ARE DELINQUENT. ON CONTRACT F34601-67-D-2462, WHICH HAS A TOTAL OF TWENTY (20) LINE ITEMS, FIVE (5) ARE CURRENTLY DELINQUENT. ON CONTRACT F34601-68-D 4271, WHICH CONTAINS FOURTEEN (14) LINE ITEMS THAT ARE A PART OF THE E 4 AUTOPILOT SYSTEM BEING REPAIRED ON THIS PROCUREMENT, THERE EXISTS A DELINQUENCY ON FOUR (4) OF THE ITEMS. THE DELINQUENCIES REFERENCED ABOVE ARE DUE TO CHANGES IN MANAGEMENT PERSONNEL AND THE CURRENT PRESENT WORK LOAD. "B. CONTRACTOR IS AWARE OF THE COMPLEXITIES AND MANHOURS ASSOCIATED WITH THIS REPAIR PROGRAM CONTAINED IN THIS PROCUREMENT, BUT HAS FAILED TO TAKE THE NECESSARY ACTION TO ACQUIRE THE MINIMUM PERSONNEL REQUIRED TO SUPPORT THE DELIVERY SCHEDULE. THE CONTRACTOR HAS THEREFORE FAILED TO TAKE THE NECESSARY STEP REQUIRED TO SUPPORT THIS PROCUREMENT. "C. THE CONTRACTOR DOES NOT POSSESS THE ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE DUE TO LACK OF PLANT FACILITIES AND EQUIPMENT, PRODUCTION CAPABILITY AND LABOR RESOURCES. "THE E-4 AUTOPILOT SYSTEM IS APPLICABLE TO NUMEROUS AIRCRAFT THAT ARE IN DIRECT SUPPORT OF SOUTHEAST ASIA. ANY DELAY OR DEVIATION IN THE SUPPORT OF THIS PROCUREMENT COULD HAVE A SUBSTANTIAL EFFECT ON THE AIR FORCE MISSION. THEREFORE, IN VIEW OF THE ABOVE FACTS, IT IS HEREBY DETERMINED THAT AWARD TO THIS CONTRACTOR WOULD HAVE A SUBSTANTIAL DETRIMENTAL IMPACT ON THIS CURRENT PROCUREMENT AND THEREBY A DETERMINATION OF NONRESPONSIBILITY IS DEEMED TO BE IN THE BEST INTEREST OF THE GOVERNMENT.'

ON MARCH 14, 1968, AFTER UPGRADING OF THE PURCHASE REQUEST FROM "ROUTINE" TO "EMERGENCY" DUE TO INCREASING DEMANDS FOR THE ITEMS TO SUPPORT SOUTHEAST ASIA AND PACIFIC AIR LIFT OPERATIONS, AWARD WAS MADE TO THE THIRD LOWEST BIDDER.

IN RESPONSE TO THE MATERIAL CONTENTIONS AND QUESTIONS RAISED IN YOUR LETTER OF MARCH 19, 1968, THE CONTRACTING OFFICER STATES THE FOLLOWING FINDINGS AND CONCLUSIONS: "CONTRACTOR HAS ALLEGED THAT BECAUSE OF HIS PAST EXPERIENCE ON IDENTICAL EQUIPMENT, THERE COULD BE NO QUESTION OF HIS ABILITY TO PERFORM IN THE AREA OF KNOWLEDGE, COMPETENCE OR FACILITIES. OUR RECORDS REFLECT THAT THE PROTESTANT HAS CURRENT EXPERIENCE ON ONLY NINETEEN (19) OF THE THIRTY-TWO (32) LINE ITEMS ON THE SOLICITATION, AND WE HAVE NO KNOWLEDGE OF HIS PERFORMANCE ON COMMERCIAL UNITS. THE CONTRACTOR DOES POSSESS LIMITED TECHNICAL CAPABILITY, HOWEVER, HE DOES NOT POSSESS THE NECESSARY CAPABILITY TO PRODUCE ALL OF THE ITEMS ON THIS PROCUREMENT IN ADDITION TO HIS CURRENT WORKLOAD. THE PROTESTANT DID NOT PRESENTLY POSSESS THE REQUIRED PERSONNEL NECESSARY TO SATISFACTORILY PERFORM ON THIS PROCUREMENT NOR HAD HE TAKEN STEPS TO SECURE APPLICATIONS FOR THE NECESSARY ADDITIONAL PERSONNEL. THE LABOR AREA WHEREIN THE PROTESTANT'S PREMISES ARE LOCATED HAS BEEN RECOGNIZED AS BEING VIRTUALLY EXHAUSTED OF THE TYPE OF SKILLED TECHNICAL PERSONNEL REQUIRED FOR PERFORMANCE ON THIS CONTRACT. PROTESTANT MAINTAINED THAT HIS CURRENT AVAILABLE TEST EQUIPMENT WOULD BE SUFFICIENT FOR PERFORMANCE ON THIS PROCUREMENT, HOWEVER, TECHNICAL EVALUATORS DETERMINED THAT THE PROTESTANT'S AVAILABLE TEST EQUIPMENT WOULD BE INADEQUATE TO MEET THE DEMANDS OF THE WORKLOAD PRODUCED BY THIS PROCUREMENT. THE PROTESTANT HAD NOT TAKEN THE NECESSARY STEPS TO ALLEVIATE THIS IMPEDIMENT TO THE PRODUCTION REQUIRED FOR THIS PROCUREMENT. THE PROTESTANT IS CURRENTLY DELINQUENT IN HIS DELIVERIES ON EXISTING GOVERNMENT CONTRACTS AND BECAUSE OF THESE CURRENT DELINQUENCIES IN EXISTING GOVERNMENT CONTRACTS, THE PROTESTANT'S ABILITY TO PERFORM WAS SERIOUSLY QUESTIONED. ,PROTESTANT MAINTAINED THAT FROM HIS PAST EXPERIENCE, HE HAD DEMONSTRATED THAT HIS ESTIMATE OF THE MAXIMUM PERSONNEL REQUIREMENT FOR THIS AWARD WOULD BE ADEQUATE. THE CONTRACTOR REPRESENTED ON HIS OFFER THAT HE HAD A TOTAL NUMBER OF THIRTY (30) EMPLOYEES. THESE THIRTY (30) EMPLOYEES CONSTITUTE THE PROTESTANT'S TOTAL WORK FORCE AND INCLUDE THE PRODUCTION TYPE PEOPLE TO BE UTILIZED IN THE REPAIR OF HIS PRESENT WORKLOAD AS WELL AS THE PROSPECTIVE WORKLOAD THAT WOULD BE REQUIRED IF HE HAD RECEIVED AN AWARD FOR THIS PROCUREMENT. AFTER SUBMISSION OF HIS OFFER TO THE GOVERNMENT, PROTESTANT'S WORK FORCE DECREASED FROM THIRTY (30) EMPLOYEES TO TWENTY- FOUR (24) EMPLOYEES. IT SHOULD ALSO BE NOTED THAT AFTER THE PROTESTANT'S SUBMISSION OF HIS OFFER TO THE GOVERNMENT, A CONTRACT WAS AWARDED WHICH NECESSITATED A MINIMUM OF FIFTEEN (15) PEOPLE. THE PROTESTANT INDICATED THAT HE WOULD UTILIZE A TOTAL OF SIXTEEN (16) PRODUCTION PEOPLE TO SUPPORT THIS PROCUREMENT (TWELVE (12) PEOPLE CURRENTLY EMPLOYED AND FOUR (4) TO BE HIRED). THE OCAMA RECORDS REFLECT THAT A MINIMUM OF THIRTY-FIVE (35) PEOPLE WOULD BE REQUIRED TO ADEQUATELY SUPPORT THIS PROCUREMENT. THE OCAMA RECORDS WERE BASED ON INDUSTRIAL ENGINEERING STANDARDS, ACTUAL EXPERIENCE ON MAN-HOURS FROM OCAMA SHOPS, AND INDUSTRIAL ENGINEERING TIME STUDIES ON EACH LINE ITEM. THE PROTESTANT INDICATED THAT HE WOULD ADD ONLY FOUR (4) PERSONNEL TO HIS PRESENT WORK FORCE IN SUPPORT OF THIS PROCUREMENT AS COMPARED TO THIRTY-FIVE (35) WHICH THE GOVERNMENT ESTIMATES AS NECESSARY FOR THIS PROCUREMENT. THE PROTESTANT INTENDED TO SUPPORT HIS EXISTING CONTRACTUAL OBLIGATIONS AS WELL AS THIS PROCUREMENT WITH A TOTAL OF THIRTY (30) EMPLOYEES. AS PREVIOUSLY MENTIONED, A SURVEY OF THE NEW YORK AREA WHEREIN THE CONTRACTOR'S PREMISES ARE LOCATED REVEALED THAT THE TYPE OF SKILLED TECHNICIANS REQUIRED FOR PERFORMANCE OF THIS CONTRACT WERE NOT AVAILABLE FOR HIRE AND THEREFORE PRECLUDED A TIMELY RECRUITMENT OF NECESSARY PERSONNEL. "THE PROTESTANT ALLEGED THAT THE ONLY CRITICISM VOICED TO HIM DURING THE PRE-AWARD SURVEY WAS ABOUT HIS PAST DELIVERY PERFORMANCE AS INDICATED BY OLD MONTHLY FORMS 392. CONTRACTOR FURTHER ALLEGED THAT THESE RECORDS PAINTED AN UNREALISTIC PICTURE IN THAT THEY CONTAINED LITTLE OR NO NARRATIVE TO EXPLAIN UNAVOIDABLE DELAYS ENCOUNTERED DURING THE LIFE OF THE CONTRACT. THE CONTRACTS THAT WERE AWARDED TO THE PROTESTANT CONTAINED PROVISIONS AND REQUIREMENTS FOR THE SUBMISSION OF AIR FORCE FORM 392 ENTITLED -OVERHAUL CONTRACTOR END ITEM REPORT-. THE CONTRACTOR IS PAID FOR THE LABOR REQUIRED FOR THE PREPARATION AND SUBMISSION OF THIS REPORT. THE CONTRACTOR THEREBY INCURS THE CONTRACTUAL OBLIGATION TO SUBMIT THE AIR FORCE FORM 392 IN ACCORDANCE WITH THE INSTRUCTIONS SET FORTH ON EACH RESPECTIVE REPORT. THE AIR FORCE FORM 392 IS THE MEDIUM THROUGH WHICH A CONTRACTOR COMMUNICATES THE CURRENT STATUS OF EACH CONTRACT AND INDICATES ANY PROBLEMS ENCOUNTERED IN THE PERFORMANCE OF THAT RESPECTIVE CONTRACT. PROTESTANT WAS NOTIFIED OF HIS FAILURE TO PROPERLY PREPARE THE AF FORM 392 ON OR ABOUT 27 OCTOBER 1967. PROTESTANT IS CURRENTLY FAILING IN THE PREPARATION OF HIS REPORTS, NOTWITHSTANDING THE GOVERNMENT'S PRIOR ADMONISHMENTS. "PROTESTANT ALLEGED THAT DELAYS WERE DUE TO THE GOVERNMENT FURNISHED PARTS SUPPORT, HOWEVER, HE HAS FAILED TO EITHER IDENTIFY OR COMMUNICATE A PARTS SHORTAGE. THE PROVISIONS OF EACH CONTRACT STIPULATE THAT WHEN THE GOVERNMENT IS UNABLE TO PROVIDE PARTS IN A MANNER NECESSARY TO ALLOW THE CONTRACTOR TO MEET HIS DELIVERY REQUIREMENTS OR AVERT A WORK STOPPAGE, THE CONTRACTOR SHALL BE AUTHORIZED TO LOCALLY PROCURE THOSE PARTS NECESSARY TO SUPPORT THAT CONTRACT. THE PROTESTANT HAD BEEN NEGLIGENT AND DELINQUENT IN THE PURSUIT OF THIS CONTRACTUAL OBLIGATION WHICH HAS RESULTED IN GOVERNMENT EQUIPMENT REMAINING IN THE PROTESTANT'S FACILITIES AS LONG AS A YEAR. "PROTESTANT ALLEGED THAT DELAYS WERE DUE TO SCHEDULE VARIATIONS REQUESTED BY GOVERNMENT PERSONNEL, HOWEVER, GOVERNMENT RECORDS SHOW THAT THE CONTRACTOR HAS NOT EXCEEDED HIS DELIVERY SCHEDULE ON EXISTING CONTRACTS AND, IN FACT, FAILED TO MEET HIS DELIVERY SCHEDULE ON THE MAJORITY OF HIS CONTRACTS INCLUDING THE CONTRACT ITEM THAT THE CONTRACTOR ALLEGED HE WAS ASKED TO EXPEDITE. "THE PROTESTANT ALLEGED THAT HE WAS DENIED THE OPPORTUNITY TO DISCUSS REASONS FOR THE -TURN DOWN- WITH DCAS OR OCAMA PRIOR TO AWARD. THE PROTESTANT DID NOT REQUEST A DISCUSSION OF THE REASONS FOR HIS NEGATIVE PRE-AWARD SURVEY UNTIL AFTER AWARD. WHEN THE PROTESTANT DID REQUEST A DISCUSSION OF THE REASONS FOR THE NEGATIVE PRE-AWARD SURVEY, ALL OF THE REASONS RELATIVE TO HIS FAILURE WERE REVEALED. IN ACCORDANCE WITH AFPI 2-408 (B) THE DCAS WAS REQUESTED TO REVEAL THE FINDINGS OF THE PRE- AWARD SURVEY TO THE PROTESTANT. PURSUANT TO ASPR 1-904 DATA OBTAINED FROM A PRE-AWARD SURVEY SHALL NOT BE RELEASED OUTSIDE THE GOVERNMENT PRIOR TO AWARD. "PROTESTANT QUESTIONED WHY HE WAS DENIED AN OPPORTUNITY FOR REFERRAL TO THE SMALL BUSINESS FOR CERTIFICATE OF COMPETENCY. REFERRAL WAS NOT MADE TO THE SMALL BUSINESS ADMINISTRATION FOR A CERTIFICATE OF COMPETANCY FOR TWO REASONS: "1) PROTESTANT WAS DECLARED AS NONRESPONSIBLE BECAUSE OF HIS FAILURE TO EXHIBIT TENACITY, PERSEVERANCE AND PROPER PLANNING FACTORS IN THE PURSUIT OF PRIOR GOVERNMENT CONTRACTS. THE PROTESTANT'S UNSATISFACTORY PERFORMANCE ON PRIOR GOVERNMENT CONTRACTS WAS DUE TO REASONS OTHER THAN THOSE RELATED TO HIS FINANCIAL STATUS AND PHYSICAL CAPABILITY TO PERFORM AND THEREFORE REFERRAL TO SMALL BUSINESS ADMINISTRATION WAS NOT REQUIRED. * * * "2) PURSUANT TO ASPR 1-705.4 (C) (IV) A REFERRAL WAS NOT MADE TO THE SMALL BUSINESS ADMINISTRATION BECAUSE THE CONTRACTING OFFICER HAD DETERMINED THAT AN AWARD MUST BE MADE WITHOUT DELAY DUE TO AN EMERGENCY CONDITION. * * * ,PROTESTANT QUESTIONED WHY THE WORDS -LACK OF TENACITY AND PERSEVERANCE- WERE USED AT THE TIME OF SURVEY AND AS A REASON FOR -TURN DOWN-. THE WORDS LACK OF TENACITY AND PERSEVERANCE- WERE USED AT THE TIME OF THE SURVEY BECAUSE THE PROTESTANT HAD FAILED TO APPLY TENACITY AND PERSEVERANCE ON PRIOR GOVERNMENT CONTRACTS F34601-67-D-4271, F34601-67-D-2462 AND F34601-68-D-0001. PROTESTANT'S FAILURE TO EXHIBIT TENACITY AND PERSEVERANCE IS EVIDENCED BY THE FOLLOWING:"1) PROTESTANT FAILED TO MEET THE DELIVERY SCHEDULE SET FORTH IN PREVIOUS GOVERNMENT CONTRACTS BY VIRTUE OF LACK OF REASONABLE AND PRUDENT PURSUIT OF CONTRACTUAL REQUIREMENTS. "2) PROTESTANT REPEATEDLY FAILED TO PREPARE AND SUBMIT PROPERLY DOCUMENTED AIR FORCE FORMS 392 IN ACCORDANCE WITH CONTRACTUAL REQUIREMENTS. PROTESTANT CONTINUED TO PREPARE AND SUBMIT AIR FORCE FORMS 392 THAT WERE NOT IN ACCORDANCE WITH THE INSTRUCTIONS SET FORTH ON EACH FORM. THE AIR FORCE FORM 392 IS THE ONLY MANAGEMENT TOOL WHEREIN THE GOVERNMENT CAN ADEQUATELY PROJECT PROGRAM REQUIREMENTS, AND IS THE MEDIUM THROUGH WHICH CONTRACTORS COMMUNICATE FORECASTED DELIVERY DATES AND ALSO ANY PROBLEMS ENCOUNTERED IN THE PERFORMANCE OF THE RESPECTIVE CONTRACT. THE PROTESTANT WAS PAID FOR ALL OF HIS SERVICES ASSOCIATED WITH THE PREPARATION AND SUBMISSION OF THIS REPORT AND EVEN AFTER REPEATED REQUESTS, INSTRUCTIONS, AND ADMONISHMENTS, CONTINUED TO PREPARE THESE REPORTS IN A FASHION THAT RESULTED IN THE REPORT HAVING NOMINAL, IF ANY, VALUE TO THE GOVERNMENT. "3) PROTESTANT FAILED TO REASONABLY PURSUE PROCEDURES FOR PROCUREMENT OF PARTS NECESSARY TO SUPPORT GOVERNMENT'S CONTRACTS AS SET FORTH IN THE PROVISIONS OF EACH RESPECTIVE CONTRACT. "PROTESTANT QUESTIONED WHY THE AWARD TOOK THREE (3) MONTHS IF THIS WAS AN URGENTLY REQUIRED ITEM. THE SOLICITATION F34601-68-R -3092 WAS ISSUED ON 12 DECEMBER 1967. THE URGENCY OF THIS REQUIREMENT WAS NOT REVEALED TO PROCUREMENT UNTIL 5 MARCH 1968. NINE (9) DAYS LATER ON 14 MARCH 1968, AWARD WAS MADE. THIS URGENCY WOULD NOT HAVE DEVELOPED AFTER THE ISSUANCE OF THE SOLICITATION IF THE INCUMBENT CONTRACTOR HAD FULFILLED CONTRACTUAL OBLIGATIONS ON EXISTING CONTRACTS. SINCE THE URGENCY OF THIS REQUIREMENT DEVELOPED SUBSEQUENT TO THE ISSUANCE OF THE SOLICITATION, AN AWARD TIME OF THREE (3) MONTHS WAS NOT UNREASONABLE AND WELL WITHIN TIME STANDARDS ESTABLISHED BY AFLC. "PROTESTANT QUESTIONED WHETHER THE SMALL BUSINESS ADMINISTRATION WAS NOTIFIED IN WRITING THAT THIS WAS AN EMERGENCY PROCUREMENT AND WHETHER THIS EMERGENCY WAS CERTIFIED BY THE PROCURING CONTRACTING OFFICER. ON 5 MARCH 1968, THE SMALL BUSINESS ADMINISTRATION WAS VERBALLY NOTIFIED THAT AN URGENCY DID EXIST FOR THIS PROCUREMENT AND THAT AWARD WAS REQUIRED TO BE MADE WITHOUT DELAY. ON 13 MARCH 1968, THE SMALL BUSINESS ADMINISTRATION WAS FORMALLY NOTIFIED OF THE URGENCY OF THIS PROCUREMENT.'

WHILE THE RULES OF FORMAL COMPETITIVE BIDDING ARE NOT APPLICABLE TO NEGOTIATED PROCUREMENTS, ASPR 3-101 REQUIRES THAT SUCH PROCUREMENTS BE MADE TO THE BEST ADVANTAGE OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, AND THE REQUIREMENTS FOR AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY, AS WELL AS THE PROVISIONS CONCERNING REFERENCE TO THE SMALL BUSINESS ADMINISTRATION OF QUESTIONS OF CAPACITY AND CREDIT OF POTENTIAL SMALL BUSINESS CONTRACTORS, ARE APPLICABLE.

DETERMINATION OF THE QUALIFICATIONS AND RESPONSIBILITY OF A PROPOSED CONTRACTOR IS PRIMARILY THE FUNCTION OF THE PROCUREMENT AGENCY (37 COMP. GEN. 430; ID. 798; 38 ID. 248; 39 ID. 468; ID. 705, 711; 43 ID. 228), AND SUCH DETERMINATION WILL NOT BE QUESTIONED BY THIS OFFICE IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 36 COMP. GEN. 42; 37 ID. 430; ID. 798; 38 ID. 131; ID. 778. THIS RULE HAS BEEN APPLIED WHERE THE EVIDENCE OF A DEFICIENT MOTIVATION TO DO AN ACCEPTABLE JOB CONSISTS OF MINOR FAULTS WHICH CUMULATIVELY RESULT IN UNDULY INCREASING THE GOVERNMENT'S BURDEN OF ADMINISTERING THE CONTRACT. 43 COMP. GEN. 257, 263.

THUS, THIS OFFICE HAS FREQUENTLY HELD THAT THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S PROBABLE ABILITY TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH MUST, OF NECESSITY, BE A MATTER OF JUDGMENT. SUCH JUDGMENT SHOULD, OF COURSE, BE BASED ON FACT AND REACHED IN GOOD FAITH; HOWEVER, IT IS ONLY PROPER THAT IT BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICER INVOLVED SINCE HE IS IN THE BEST POSITION TO ASSESS RESPONSIBILITY. ALSO, HE IS THE OFFICIAL WHO MUST BEAR THE MAJOR BRUNT OF DIFFICULTIES EXPERIENCED IN OBTAINING REQUIRED PERFORMANCE AND THE ONE WHO MUST MAINTIAN DAY-TO-DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF. 39 COMP. GEN. 705, 711; 43ID. 228, 230; B-161765, AUGUST 31, 1967).

IN THIS CASE, SINCE THE AIR FORCE DETERMINED AFTER A CAREFUL INVESTIGATION AND FULL CONSIDERATION OF ALL THE FACTS THAT YOUR OFFER MUST BE REJECTED ON THE BASIS OF NONRESPONSIBILITY, AND SINCE SAID DETERMINATION WAS BASED UPON SUBSTANTIAL EVIDENCE AND THERE HAS BEEN NO SHOWING OF BAD FAITH, WE FIND NO LEGAL BASIS UPON WHICH WE MAY PROPERLY OBJECT TO THE DETERMINATION OR DISTURB THE AWARD AS MADE.

IT IS FURTHER CONTENDED BY YOU THAT THE MATTER OF YOUR ELIGIBILITY FOR AWARD SHOULD HAVE BEEN SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR ITS DETERMINATION WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED. THERE IS NO QUESTION BUT THAT THE CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY IS SUBJECT, INSOFAR AS CAPACITY AND CREDIT ARE CONCERNED, TO THE PROVISIONS OF SECTION 8 (B) (7) OF THE SMALL BUSINESS ACT, 15 U.S.C. 63 (B) (7), AUTHORISING SBA TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICERS AS TO THE CAPACITY AND CREDIT OF A SMALL BUSINESS CONCERN TO PERFORM A SPECIFIC PROCUREMENT AND REQUIRING THAT SUCH CERTIFICATE BE ACCEPTED BY THE PROCUREMENT OFFICER AS CONCLUSIVE. HOWEVER, THE DETERMINATION TO REJECT YOUR OFFER WAS NOT BASED UPON A LACK OF CAPACITY OR CREDIT, BUT UPON DEFECTS IN YOUR PRIOR CONTRACT PERFORMANCE ATTRIBUTABLE TO OTHER CAUSES. UNDER ASPR 1-903.1 (III), A SATISFACTORY PERFORMANCE RECORD IS REQUISITE TO A DETERMINATION THAT A BIDDER IS RESPONSIBLE, AND WHERE A BIDDER'S PERFORMANCE HAS BEEN UNSATISFACTORY, IT MUST BE SHOWN THAT THE DELINQUENCY WAS FOR REASONS BEYOND THE CONTRACTOR'S CONTROL IN ORDER TO MEET SUCH REQUIREMENT. THE CITED SECTION FURTHER STATES THAT PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLYNECESSARY TENACITY OR PERSEVERENCE TO DO AN ACCEPTABLE JOB, SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY AND IN THE CASE OF A SMALL BUSINESS CONCERN SHALL NOT REQUIRE SUBMISSION OF THE CASE TO SBA. PURSUANT TO SUCH PROVISION, WHERE A CONTRACTING OFFICER DETERMINES, AS HE DID HERE, THAT A LOW SMALL BUSINESS OFFEROR IS NONRESPONSIBLE FOR REASONS NOT INCLUDED IN SBA CERTIFICATIONS, THAT IS, FACTORS CONCERNING WHETHER AN OFFEROR WILL, RATHER THAN CAN, PERFORM, THE MATTER OF THE OFFEROR'S RESPONSIBILITY NEED NOT BE SUBMITTED TO SBA. 43 COMP. GEN. 298, 300; B- 157549, DECEMBER 21, 1965.

ALSO, IN VIEW OF THE DETERMINATION THAT THE PROCUREMENT IN QUESTION HAD BECOME A MATTER OF THE UTMOST URGENCY, IT WAS CLEARLY WITHIN THE PURVIEW OF THE PROVISION IN ASPR 1-705.4 (C) (IV) PERMITTING EXCEPTION TO THE SBA CERTIFICATE OF COMPETENCY PROCEDURES. 46 COMP. GEN. 53.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED. WITH RESPECT TO FUTURE PROCUREMENTS, THE DETERMINATION OF YOUR FIRM'S RESPONSIBILITY WILL HAVE TO BE BASED ON THE CIRCUMSTANCES AS OF THAT TIME.