B-164681, JAN. 17, 1969

B-164681: Jan 17, 1969

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 25. THE PROCUREMENT WAS ASSIGNED AN 02 PRIORITY DESIGNATOR UNDER THE UNIFORM MATERIAL MOVEMENT ISSUE PRIORITY SYSTEM. "BIDDERS WILL BE SURVEYED TO ESTABLISH COMPETENCE IN THE PRODUCTION OF DIGITAL COMPUTER CIRCUIT BOARDS HAVING COMPARABLE CHARACTERISTICS OF RELIABILITY AND COMPLEXITY AS WELL AS HIS UNDERSTANDING OF AND APPROACH TO THE TOOLING AND TEST EQUIPMENTS TO INSURE RELIABLE AND QUALITY EQUIPMENT IN ACCORDANCE WITH TIME SCHEDULES.'. SIX PROPOSALS WERE OPENED ON OCTOBER 19. DALTRONICS WAS THE LOW OFFEROR UNDER ITS INITIAL OFFER FOR ALL ITEMS. A PRE-AWARD SURVEY WAS REQUESTED BY THE CONTRACTING OFFICER ON YOUR FIRM. THIS SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR).

B-164681, JAN. 17, 1969

TO DALTRONICS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 25, 1968, AND SUPPLEMENTARY LETTERS, WITH ENCLOSURES, DATED JULY 25, 1968, OCTOBER 10, 1968, NOVEMBER 20, 1968, AND DECEMBER 5, 1968, PROTESTING AGAINST AWARD OF CONTRACT TO ALLIED RESEARCH ASSOCIATES, INCORPORATED, UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAA-25-68-R-0205, ISSUED BY THE UNITED STATES FRANKFORD ARSENAL, PHILADELPHIA, PENNSYLVANIA.

THIS SOLICITATION, ISSUED ON OCTOBER 5, 1967, INVITED OFFERS ON FOUR COMPONENT ITEMS OF CIRCUIT BOARDS IN SPECIFIED QUANTITIES DESIGNATED AS: (1) CAPACITOR; (2) LOGIC, FLIP-FLOP; (3) RECTIFIER TRANSISTOR ASSEMBLY; AND (4) TRANSISTOR ASSEMBLY. THE PROCUREMENT WAS ASSIGNED AN 02 PRIORITY DESIGNATOR UNDER THE UNIFORM MATERIAL MOVEMENT ISSUE PRIORITY SYSTEM, INDICATING AN URGENT REQUIREMENT FOR THE EQUIPMENT. THE REQUEST FOR PROPOSAL CONTAINED THE FOLLOWING PARAGRAPH.

"BIDDERS WILL BE SURVEYED TO ESTABLISH COMPETENCE IN THE PRODUCTION OF DIGITAL COMPUTER CIRCUIT BOARDS HAVING COMPARABLE CHARACTERISTICS OF RELIABILITY AND COMPLEXITY AS WELL AS HIS UNDERSTANDING OF AND APPROACH TO THE TOOLING AND TEST EQUIPMENTS TO INSURE RELIABLE AND QUALITY EQUIPMENT IN ACCORDANCE WITH TIME SCHEDULES.' SIX PROPOSALS WERE OPENED ON OCTOBER 19, 1967, AND DALTRONICS WAS THE LOW OFFEROR UNDER ITS INITIAL OFFER FOR ALL ITEMS.

ON OCTOBER 30, 1967, A PRE-AWARD SURVEY WAS REQUESTED BY THE CONTRACTING OFFICER ON YOUR FIRM. THIS SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), BOSTON, WITH JOINT PARTICIPATION BY COGNIZANT FRANKFORD ARSENAL (FA) PERSONNEL. THE JOINT PRE-AWARD SURVEY WAS CONDUCTED ON NOVEMBER 7, 1967, 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 INVESTIGATED:

A. TECHNICAL CAPABILITY D. QUALITY ASSURANCE

CAPABILITY

B. PRODUCTION CAPABILITY

E. ABILITY TO MEET SCHEDULE

C. PLANT FACILITIES AND EQUIPMENT

THEREAFTER, ON NOVEMBER 27, 1967, THE CONTRACTING OFFICER MADE A DETERMINATION THAT DALTRONICS WAS NOT RESPONSIBLE WITHIN THE STANDARDS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903. IT WAS FURTHER DETERMINED THAT THERE WAS AN URGENT REQUIREMENT FOR THE INSTANT PROCUREMENT; CONSEQUENTLY, PURSUANT TO ASPR 1-705.4 (C) (IV), THE MATTER OF YOUR CONCERN'S RESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION. SUBSEQUENT TO THIS, HOWEVER, IT WAS DECIDED THAT SINCE ALL ITEMS WERE ON PRINTED CIRCUIT BOARDS SIMILAR IN NATURE, NEGOTIATIONS WOULD BE CONDUCTED ON AN "ITEM BY ITEM" AND "ALL OR NONE" BASIS.

BY LETTER DATED JANUARY 12, 1968, YOU WERE INFORMED THAT DALTRONICS WAS DETERMINED NON-RESPONSIBLE FOR THE PURPOSE OF THE SOLICITATION AND THAT A RE-SURVEY WOULD NOT BE CONDUCTED. YOU WERE FURTHER ADVISED OF CONTINUED NEGOTIATIONS REQUESTING THE SUBMISSION OF AN ALTERNATE PROPOSAL FOR AN "ALL OR NONE" AWARD INDICATING THE UNIT AND TOTAL PRICE OF EACH ITEM WITHIN THE ALL OR NONE PRICE, AND ADVISED IN EVENT YOUR PROPOSAL WAS LOW, IT WOULD BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION OF ISSUANCE OF A CERTIFICATE OF COMPETENCY.

THE RECORD SHOWS THAT NEGOTIATIONS WERE CONCLUDED ON APRIL 24, 1968. DALTRONICS, AFTER REVISING AND CONFIRMING PRICES, WAS LOW ON ITEMS 2 AND 3. IN VIEW OF THE FACT THAT SUBSTANTIAL TIME HAD ELAPSED SINCE THE ORIGINAL PRE-AWARD SURVEY, A RE-SURVEY WAS CONDUCTED BY DCASR, BOSTON, ON APRIL 24, 1968, AGAIN IN CONJUNCTION WITH FRANKFORD ARSENAL PERSONNEL. THE REPORT DATED MAY 2, 1968, RECOMMENDED NO AWARD, CITING SPECIFIC UNSATISFACTORY FACTORS IN TECHNICAL CAPABILITY, PRODUCTION CAPABILITY, LABOR RESOURCES, PERFORMANCE RECORD AND ABILITY TO MEET REQUIRED SCHEDULES. BASED ON THIS INFORMATION IN THE RE-SURVEY, THE CONTRACTING OFFICER AGAIN DETERMINED DALTRONICS TO BE NON-RESPONSIBLE AND SUBMITTED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION, IN ACCORDANCE WITH ASPR 1 -705.4.

SUBSEQUENTLY, THE LOW OFFEROR ON ITEM 1 REVISED ITS PROPOSAL TO AN "ALL OR NONE" BASIS ONLY AND DALTRONICS BECAME LOW ON THAT ITEM ALSO. DCASR, BOSTON, CONDUCTED A RE-SURVEY, LIMITED TO ITEM 1 WITH RECOMMENDATION OF NO AWARD. THE SBA INCLUDED ITEMS 1, 2, AND 3 IN ITS DETERMINATION ON THE ISSUANCE OF A CERTIFICATE OF COMPETENCY.

BY LETTER DATED JUNE 20, 1968, THE SBA DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY FOR DALTRONICS AND THE CONTRACTING OFFICER DETERMINED THAT AWARD SHOULD BE MADE TO ALLIED RESEARCH ASSOCIATES, INCORPORATED, AS THE LOW RESPONSIVE AND RESPONSIBLE OFFEROR. THE AWARD WAS MADE ON JUNE 28, 1968, PURSUANT TO ASPR 3-509 AND 2-407.9.

IN YOUR SUPPLEMENTAL LETTER OF JULY 25, 1968, AND THE ENCLOSURES THEREWITH, YOU CONTEND THAT THE PRE-AWARD SURVEY TEAM RELIED UPON MINOR DISCREPANCIES, SELECTION OF DATA REQUIRING CONFORMANCE TO NON EXISTING REQUIREMENTS, AND OUTRIGHT ERRONEOUS MISREPRESENTATION TO PROVE THEIR PRE- DETERMINED FINDINGS OF NON-RESPONSIBILITY SO THAT THE CONTRACT WOULD BE AWARDED TO A CONTRACTOR OF THEIR CHOICE. YOU SET OUT IN DETAIL CERTAIN FACTS, WHICH WILL NOT BE REPEATED HERE, WHICH YOU CONTEND CLEARLY SHOW YOUR FIRM'S RESPONSIBILITY TO PERFORM.

ON SEPTEMBER 19, 1968, WE EXTENDED YOU THE OPPORTUNITY TO EXAMINE AND MAKE COMMENTS ON THE ADMINISTRATIVE REPORT TO THIS OFFICE. IN YOUR LETTER OF OCTOBER 10, 1968, WITH ENCLOSURES, YOU SET FORTH SPECIFIC EXPLANATIONS OF EACH OF THE MATTERS RELIED UPON BY THE CONTRACTING OFFICER IN DETERMINING YOUR FIRM NON-RESPONSIBLE. IN THIS INSTANCE, WE WISH TO COMMEND DALTRONICS FOR ITS CONTRIBUTION TO THE THOROUGHNESS OF THE RECORD.

WITH REGARD TO YOUR CONTENTIONS RESPECTING THE PRE-AWARD SURVEYS, WE HAVE BEEN ADVISED BY DCASR, IN PERTINENT PART, ACCORDINGLY.

I. PRE-AWARD NO. 67-11-2

1. THE ACTUAL SURVEY WAS CONDUCTED ON NOVEMBER 7, 1967, AND NOT ON OCTOBER 30, 1967, WHICH WAS THE REQUESTED DATE.

2. AT THE TIME OF THE ORIGINAL SURVEY (NOVEMBER 7, 1967) NO MENTION WAS MADE BY THE CONTRACTOR OF INTENT TO HIRE ENGINEERS THROUGH LINCOLN AND LEE, WALTHAM, MASSACHUSETTS. THE NAME OF MR. MEDOFF NEVER CAME UP AT THAT TIME. CONTRACTOR INDICATED HIS INTENT TO USE CONSULTANTS ONLY AND WAS NOT ABLE TO PRESENT ANY WRITTEN AGREEMENTS WITH ANY SUCH CONSULTANTS.

3. MR. ALEX GORDON WAS REPRESENTING THE CONTRACTOR AT THE TIME AND NOT MR. BERNARD GORDON. INSOFAR AS IS KNOWN, THERE IS NO RELATIONSHIP, BUSINESS OR OTHERWISE, BETWEEN MR. BERNARD AND MR. ALEX GORDON. CONTRACTOR HAD NO PRINTS FROM APERTURE CARDS OR ANY FACILITIES TO VIEW CARDS AT THE TIME OF THIS REVIEW. THIS WAS NOT A NEGATIVE FACTOR, BUT ONLY INFORMATIONAL. IT WAS NOTED THAT SOME ITEMS WERE ORDERED TO VENDOR PART NUMBER ONLY, WITHOUT REFERENCE TO PROPER DRAWING REQUIREMENTS WHICH SPECIFIED ELECTRICAL AND ENVIRONMENTAL REQUIREMENTS. CONTRACTOR HAS INTENTIONS OF HIRING ADDITIONAL PERSONNEL, BUT HAD NOT ESTABLISHED AVAILABILITY OF FORMER EMPLOYEES OR GIVEN ANY INDICATION OF CONTRACTS MADE WITH ANY TYPE OF EMPLOYMENT AGENCY. THIS IS BASED ON REPLY TO DIRECT QUESTION AS TO WHETHER PERSONAL CONTACTS HAD BEEN MADE WITH FORMER EMPLOYEES. CONTRACTOR HAS HAD SOME EXPERIENCE WITH PRINTED CIRCUIT BOARDS, BUT THESE WERE MUCH SIMPLER PRODUCTS THAN THESE PARTICULAR BID ITEMS. FRANKFORD ARSENAL PERSONNEL HAVE HAD THE BENEFIT OF EXPERIENCE WITH OTHER PRODUCERS FOR THESE ITEMS. NO CONTRACTORS' ESTIMATES ARE NECESSARILY VALID PER SE AND ARE A PRIME AREA FOR REVIEW BY ANY SURVEY TEAM. THE REVISION MADE TO THE LOGIC, FLIP-FLOP TIME ESTIMATE WAS INCREASED FROM 174 MINUTES TO 256 MINUTES. THIS REPRESENTED AN INCREASE OF 40 PERCENT AND NOT 20 PERCENT AS STATED. FURTHER, THIS WAS MADE AFTER THE SURVEY HAD BEEN COMPLETED BY A TELEPHONE CALL TO DCASR, BOSTON. THIS TIME WAS TO PROVIDE FOR REWORK EFFORTS WHICH HAD BEEN APPARENTLY UNDERESTIMATED ORIGINALLY. THIS IS INDICATIVE OF THE LACK OF PLANNING INVOLVED IN THAT LABOR WAS INCREASED BY 40 PERCENT WITH NO CHANGE TO THE BID PRICE.

4. SOME CONFUSION EXISTS IN THE ADMINISTRATIVE FILE CONCERNING THE REQUIREMENT FOR SAND AND GRAVEL TEST WHICH SHOULD READ SAND AND DUST. DCASR PRE-AWARD FILE STATES THIS IS A REQUIRED ENVIRONMENTAL TEST ALONG WITH FUNGUS AND SALT SPRAY. THE ADMINISTRATIVE FILE FROM FRANKFORD ARSENAL REFLECTS SAND AND DUST AS A REQUIREMENT. IN TELEPHONE COMMUNICATION WITH FRANKFORD ARSENAL ON DECEMBER 11, 1968, IT WAS STATED BY FRANKFORD ARSENAL THAT THIS TEST WAS NOT A REQUIREMENT. NO WRITTEN QUOTES OR REQUEST FOR WRITTEN QUOTES WERE AVAILABLE AT THE TIME OF THE SURVEY WITH RESPECT TO PRINTED CIRCUIT BOARDS. NO WRITTEN QUOTES WERE AVAILABLE FOR THE DISSIPATOR. THIS ITEM IS NOT A SOLE SOURCE PER DRAWINGS. A SOURCE WAS FURNISHED THE CONTRACTOR AS THE ONLY KNOWN SOURCE BY FRANKFORD ARSENAL PERSONNEL IN AN EFFORT TO HELP THE CONTRACTOR. WRITTEN QUOTES WERE AVAILABLE AT THE TIME OF THE SURVEY.

5. AUTOMATIC TEST EQUIPMENT CANNOT BE DESIGNED WITHOUT KNOWLEDGE OF FABRICATION AND TESTING REQUIREMENTS. THE CONSULTANT STATED HE HAD NOT PREVIOUSLY SEEN MIL-L-60196, WHICH OUTLINED THE ABOVE REQUIREMENTS. THE PREVIOUS GOVERNMENT CONTRACT REQUIRED DELIVERY DATE WAS AUGUST 24, 1965, AND NOT DECEMBER 25, 1965, AS STATED. THE FINAL DELIVERY BY THE CONTRACTOR WAS MADE ON JULY 5, 1967. THE PAS REPORT SHOULD HAVE STATED "GOLD PLATED" PRINTED CIRCUIT BOARDS, RATHER THAN GOLD FILLED.

II. PRE-AWARD NO. 67-11-2A

MR. NURENBURGER INDICATED HE WOULD WORK FOR DALTRONICS, SUBJECT TO HIS AVAILABILITY AT THE TIME HE WAS REQUIRED BY THEM. THIS WOULD BE AS A COMPANY ENGINEER. THERE WAS NO WRITTEN AGREEMENT AVAILABLE TO THE SURVEY TEAM. INFORMATION SUPPLIED BY MR. GORDON WAS GIVEN AS A REPRESENTATIVE OF DALTRONICS. MR. MENDELSOHN, BEING PRESENT, TOOK NO EXCEPTION TO STATEMENTS MADE BY MR. GORDON. THERE WERE NO WRITTEN QUOTES AVAILABLE AND IN MANY CASES NO EVIDENCE OF REQUESTS FOR WRITTEN QUOTES. MANY REQUESTS WERE BY VENDOR PART NUMBER ONLY AND OMITTED PROPER DRAWING REFERENCES WHICH SPECIFIED ELECTRICAL AND ENVIRONMENTAL REQUIREMENTS WHICH COULD EXCEED THE NORMAL VENDOR ITEM REQUIREMENTS. AT THE TIME OF THE SURVEY MR. MENDOLSOHN PRESENTED THE SURVEY TEAM WITH A WRITTEN QUOTATION OF 20 WEEKS FROM GENERAL ELECTRIC FOR DIODE TYPE 1N1202A. THERE WAS A VERBAL AGREEMENT ONLY AT THE TIME OF THE SURVEY WITH THE PROPOSED ENGINEERING CONSULTANT, AS PER MR. MENDOLSOHN. THERE IS NO POINT IN COMPETITIVE QUOTES, IF VENDOR AND PARTS ARE SPECIFIED AS THE APPROVED ITEMS. THERE WERE NO WRITTEN QUOTES FROM APPROVED SOURCES FOR SOME ITEMS (C10525858 CAPACITOR-G.E., C10525830 CAPACITOR G.E., C10525784-1 RETAINERS AUGAT, AND C10525784-2 RETAINERS AUGAT).

III. PRE-AWARD NO. 67-11-2B

THE NON-EXISTENT PRODUCTION PLAN WOULD HAVE DEMONSTRATED THE CONTRACTOR'S AWARENESS OF THE APPLICABLE SPECIFICATION AND OTHER TECHNICAL REQUIREMENTS OF THE PROPOSED PROCUREMENT. OTHER ITEMS WERE NOT DISCUSSED OR BROUGHT UP AT THIS SURVEY. CONTRACTOR INDICATED THAT HE ALONE SHOULD BE THE JUDGE AS TO WHAT IS AN EXCESSIVE EXPENDITURE FOR HIM, WHEN THE ACQUISITION COST FOR THE DYNASERT WAS COMMENTED ON. CONTRACTOR'S INTENT DURING THE SURVEY WAS TO PURCHASE A DYNASERT FOR ASSEMBLY OF UNITS.

IT IS NOTED THAT THE ENCLOSURES TO THIS OFFICE SHOWING AGREEMENTS WITH PROPOSED PERSONNEL AND CONFIRMATIONS OF VENDORS' QUOTATIONS ARE, FOR THE MOST PART, DATED AND ACQUIRED AFTER THE COMPLETION OF THE PRE AWARD SURVEY. IN THIS INSTANCE, THE FINDINGS OF A PRE-AWARD SURVEY REFLECT THE BIDDER'S CAPABILITY AS OF THE TIME OF THE SURVEY, AND THE VALIDITY OF A CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE JUDGED ON THE BASIS OF INFORMATION BEFORE HIM AT THE TIME IT WAS MADE. 47 COMP. GEN. 373. A BIDDER MUST DEMONSTRATE THROUGH OBJECTIVE EVIDENCE THAT HE HAS THE NECESSARY ORGANIZATION, EXPERIENCE, OPERATIONAL CONTROLS AND TECHNICAL SKILLS OR THE ABILITY TO OBTAIN THEM WITHIN THE TIME LIMITATIONS SET TO SUPPORT THE REQUIREMENTS OF THE PROPOSED CONTRACT.

IN REGARD TO THE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, THE AUTHORITIES ARE IN AGREEMENT THAT THE OFFICERS IN WHOM THE POWER IS VESTED TO DETERMINE ,RESPONSIBILITY" MUST DETERMINE THE FACT AND SUCH DETERMINATION CANNOT BE SET ASIDE UNLESS THE ACTION WAS ARBITRARY, CAPRICIOUS OR FRAUDULENT. DETERMINATION OF THE LOWEST RESPONSIBLE BIDDER IS TO BE MADE BY THE AUTHORIZED OFFICIAL OF THE CONTRACTING AGENCY, WHO IS REQUIRED TO ACT FAIRLY UPON REASONABLE INFORMATION WHICH SUPPORTS THE DETERMINATION MADE. WHEN SUCH OFFICIAL DETERMINES THE RESPONSIBILITY OF A BIDDER, SUCH DETERMINATION CANNOT BE OVERTHROWN BY THE COURTS OR OUR OFFICE UNLESS IT CAN BE HELD THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS OR FRAUDULENT. SEE MCQUILLIN, MUNICIPAL CORPORATIONS, 3D ED., VOL. 10, SEC. 29.73, AND THE CASES THERE CITED; 38 COMP. GEN. 131; 33 ID. 549; BROWN V CITY OF PHOENIX, 272 P.2D 358; MCNICHOLS V CITY AND COUNTY OF DENVER, 274 P.2D 317. OUR 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 MAINTAIN DAY-TO-DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF. 39 COMP. GEN. 705, 711; 43 ID. 228, 230; B-161765, AUGUST 31, 1967.

IN ADDITIONAL ENCLOSURES TO YOUR LETTERS OF NOVEMBER 20 AND DECEMBER 5, 1968, IT IS NOTED THAT MODIFICATIONS TO YOUR PRIOR GOVERNMENT CONTRACT WERE, AT LEAST IN PART, THE CAUSE FOR DELAY IN YOUR PERFORMANCE. IN THIS INSTANCE, WHILE THERE IS A DISPUTE AS TO THE DEGREE OF CAUSE AND RESPONSIBILITY FOR THE DELAY IN PERFORMANCE, WE DO NOT FIND IN THE FINAL ANALYSIS OF THE RECORD BEFORE US THAT YOUR PRIOR GOVERNMENT CONTRACT PERFORMANCE WAS OTHER THAN AN ADDED FACTOR IN THE DETERMINATION OF YOUR NON-RESPONSIBILITY. SUCH A DETERMINATION OF NON RESPONSIBILITY FOUNDED IN PART ON A CONCLUSION THAT A COMPANY DID NOT HAVE A SATISFACTORY RECORD OF PERFORMANCE, DOES NOT REPRESENT A PERMANENT EVALUATION OF THAT FIRM'S CAPABILITIES. A DETERMINATION SUCH AS HERE, DOES NOT PRECLUDE CONSIDERATION OF DALTRONICS ON FUTURE PROCUREMENTS. THE DETERMINATION OF DALTRONICS' RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR ON FUTURE PROCUREMENTS MUST BE BASED ON THE FACTS AND CIRCUMSTANCES THEN EXISTING.

THE SBA, IN DENYING A CERTIFICATE OF COMPETENCY, DETERMINED THAT DALTRONICS HAD THE NECESSARY FINANCIAL CAPABILITY OR CREDIT BUT LACKED THE CAPACITY TO PERFORM THE PROPOSED CONTRACT. IN THESE CIRCUMSTANCES, WE HAVE HELD THAT THE REFUSAL OF THE SBA TO ISSUE A CERTIFICATE OF COMPETENCY AS TO THE CAPACITY OF A SMALL BUSINESS OFFEROR MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE OFFEROR CONCERNED. 39 COMP. GEN. 705. WHEN THE ISSUANCE OF A CERTIFICATE OF COMPETENCY IS DENIED, THE CONTRACTING OFFICER'S DETERMINATION OF NON- RESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED. WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF THE SBA OR REQUIRE IT TO ISSUE A CERTIFICATE OF COMPETENCY (15 U.S.C. 637 (B) (7) ).

IN THE CIRCUMSTANCES, THERE IS NO BASIS UPON WHICH OUR OFFICE MAY PROPERLY DISTURB THE AWARD OF THE CONTRACT TO ALLIED RESEARCH ASSOCIATES, INCORPORATED.