B-165083, NOV. 7, 1968

B-165083: Nov 7, 1968

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TO SANDLIN FUNERAL SERVICE: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15. THE TOTAL ESTIMATED YEARLY REQUIREMENT AS SET FORTH IN THE INVITATION WAS 75 FUNERALS. IT IS REPORTED THAT YOUR FIRM SUBMITTED THE LOWEST BID ON THE REQUIRED SUPPLIES AND SERVICES. THE ONLY OTHER BID WAS SUBMITTED BY THE JOHNSON FUNERAL HOME. THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER UNDER THE CRITERIA SET OUT IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903. THE CONTRACTING OFFICER CONCLUDED THAT YOUR FIRM WAS UNABLE TO MEET THE REQUIRED DELIVERY SCHEDULE AND IN ARRIVING AT THIS DETERMINATION OF NONRESPONSIBILITY PARTICULAR CONSIDERATION WAS GIVEN TO YOUR FIRM'S LACK OF ADEQUATE FACILITIES TO PROPERLY PERFORM THE CONTRACT.

B-165083, NOV. 7, 1968

TO SANDLIN FUNERAL SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1968, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO A COMPANY OTHER THAN YOUR FIRM UNDER INVITATION FOR BIDS NO. N00189-68 B0293, ISSUED BY THE UNITED STATES NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA.

THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, BY SOLICITATION NO. N00189-68 -B0293 REQUESTED BIDS FOR FURNISHING EMBALMING, CASKETING AND FUNERAL SERVICES FOR DECEASED PERSONNEL OF THE MARINE CORPS AIR STATION, CHERRY POINT, NORTH CAROLINA, AND UNITED STATES NAVAL HOSPITAL, CAMP LEJEUNE, NORTH CAROLINA, DURING THE PERIOD FROM JULY 1, 1968, THROUGH JUNE 30, 1969. THE TOTAL ESTIMATED YEARLY REQUIREMENT AS SET FORTH IN THE INVITATION WAS 75 FUNERALS.

IT IS REPORTED THAT YOUR FIRM SUBMITTED THE LOWEST BID ON THE REQUIRED SUPPLIES AND SERVICES. THE ONLY OTHER BID WAS SUBMITTED BY THE JOHNSON FUNERAL HOME. WHILE YOUR FIRM SUBMITTED THE LOWEST BID, THE CONTRACTING OFFICER DETERMINED ON THE BASIS OF AN INSPECTION REPORT BY REPRESENTATIVES OF THE NAVAL HOSPITAL, CAMP LEJEUNE, AND A PREAWARD SURVEY MADE BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), ATLANTA, THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER UNDER THE CRITERIA SET OUT IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903. THE CONTRACTING OFFICER CONCLUDED THAT YOUR FIRM WAS UNABLE TO MEET THE REQUIRED DELIVERY SCHEDULE AND IN ARRIVING AT THIS DETERMINATION OF NONRESPONSIBILITY PARTICULAR CONSIDERATION WAS GIVEN TO YOUR FIRM'S LACK OF ADEQUATE FACILITIES TO PROPERLY PERFORM THE CONTRACT. IN COMPLIANCE WITH THE PROVISIONS OF ASPR 1-705.1 THE MATTER OF YOUR COMPANY'S NONRESPONSIBILITY WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) ON JULY 9, 1968. THE RECORD INDICATES THAT ON JULY 10, 1968, YOU ADVISED THE SBA REGIONAL OFFICE OF YOUR INTENTION TO APPLY FOR A CERTIFICATE OF COMPETENCY (COC) IN CONNECTION WITH THE SUBJECT PROCUREMENT. AFTER CONDUCTING AN INDEPENDENT SURVEY OF THE FACILITIES OF YOUR FIRM, THE SBA ADVISED THE PROCUREMENT ACTIVITY ON JULY 29, 1968, THAT: "BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION, THIS AGENCY HAS DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY IN THIS INSTANCE.' BY LETTER OF THE SAME DATE THE SBA ADVISED YOUR FIRM THAT IT HAD CAREFULLY EVALUATED ALL THE EVIDENCE SUBMITTED BY YOU IN SUPPORT OF YOUR APPLICATION FOR A COC AND THAT IT HAD FOUND NO SUFFICIENT REASON FOR DISAGREEING WITH THE PROCUREMENT AGENCY. ON AUGUST 2, 1968, A CONTRACT FOR THE REQUIRED SUPPLIES AND SERVICES WAS AWARDED TO THE JOHNSON FUNERAL HOME.

IN HIS LETTER OF OCTOBER 15, 1968, YOUR ATTORNEY CONTENDS THAT IF A FAIR, HONEST AND IMPARTIAL INVESTIGATION AND CHECK OF YOUR FIRM'S FACILITIES WERE MADE, THE INVESTIGATOR WOULD FIND THAT YOUR FIRM POSSESSED THE NECESSARY FACILITIES AS REQUIRED BY THE INVITATION FOR BIDS. IN SUPPORT OF SUCH CONTENTION, YOUR ATTORNEY SUBMITTED NOTARIZED FINDINGS OF TWO SEPARATE INSPECTIONS WHICH WERE CONDUCTED BY PRIVATE INDIVIDUALS AT YOUR FIRM'S EXPENSE. YOUR ATTORNEY ALSO STATES THAT THE OPERATION FACILITIES OF YOUR FIRM MEET THE REQUIREMENTS OF THE STATE OF NORTH CAROLINA. FURTHER, YOUR ATTORNEY ADVISED THAT THE INSPECTOR FROM THE NAVAL HOSPITAL AT CAMP LEJEUNE -- THE FIRST INSPECTOR -- HAD A VERY HOSTILE AND ANTAGONISTIC ATTITUDE TO REPRESENTATIVES OF YOUR FIRM; THAT THE SECOND INSPECTOR -- FROM THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, ATLANTA -- WAS VERY COOPERATIVE BUT FOLLOWING HIS INSPECTION HE CONVERSED WITH THE FIRST INSPECTOR AND MERELY REPEATED WHAT THAT INSPECTOR APPARENTLY REPORTED; AND THAT THE INSPECTOR FROM SBA WAS INCOMPETENT TO MAKE AN INSPECTION OF A FUNERAL HOME.

SECTION 8.8 FACILITY REQUIREMENTS OF THE ADDITIONAL PROVISIONS OF THE INVITATION FOR BIDS PROVIDES, IN PERTINENT PART, THAT "THE CONTRACTOR'S BUILDING SHALL HAVE COMPLETE FACILITIES FOR MAINTAINING THE HIGHEST STANDARDS OF SOLEMNITY, REVERENCE, AND ASSISTANCE TO THE FAMILY, AND FOR PRESCRIBED CEREMONIAL SERVICES.' SUBPARAGRAPH 1B OF SPECIFICATION 5 FUNERAL ESTABLISHMENT, MERCHANDISE, AND MOTOR EQUIPMENT OF DEPARTMENT OF THE NAVY SPECIFICATIONS FOR CARE OF REMAINS DATED AUGUST 16, 1966, WHICH WAS MADE PART OF THE INVITATION FOR BIDS, PROVIDES THAT THE FUNERAL ESTABLISHMENT SHALL HAVE A CHAPEL, REPOSING ROOM/S), STORAGE AND OFFICE FACILITIES. IT IS REPORTED THAT YOUR FIRM HAD ONLY TWO SMALL REPOSING ROOMS AND A VERY SMALL CHAPEL WHICH DID NOT HAVE EQUIPMENT FOR PROVIDING MUSIC DURING SERVICES. YOUR FACILITIES WERE INSPECTED ON THREE DIFFERENT OCCASIONS BY GOVERNMENT INSPECTORS AND THE FINDINGS OF THOSE INSPECTORS SUBSTANTIATE THE DETERMINATION BY THE CONTRACTING OFFICER THAT YOUR FACILITIES DO NOT MEET THE MINIMUM REQUIREMENTS OF THE PROPOSED CONTRACT FOR MAINTAINING THE HIGH STANDARDS OF SOLEMNITY, REVERENCE, AND ASSISTANCE TO THE BEREAVED FAMILIES AND FOR THE VARIOUS PRESCRIBED CEREMONIAL SERVICES.

THE 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 THEREIN 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. WE ARE OF THE OPINION THAT THE DETERMINATION OF THE CONTRACTING OFFICER AS TO THE RESPONSIBILITY OF YOUR FIRM IS SUPPORTED BY THE EVIDENCE OF RECORD AND THAT IT IS NEITHER ARBITRARY NOR CAPRICIOUS.

WE HAVE EXAMINED THE FILE SUBMITTED BY SBA WITH RESPECT TO YOUR REQUEST FOR ISSUANCE OF A COC AND IT INDICATES THAT THE SMALL BUSINESS ADMINISTRATION COMPETENCY REVIEW COMMITTEE IN ATLANTA RECOMMENDED FOR GOOD AND SUFFICIENT REASONS THAT A COC NOT BE ISSUED TO YOUR FIRM. THE ACTING AREA ADMINISTRATOR OF SBA APPROVED THAT RECOMMENDATION. UNDER 15 U.S.C. 637 (B) (7) SBA IS AUTHORIZED TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICERS WITH RESPECT TO THE COMPETENCY AS TO CAPACITY AND CREDIT OF ANY SMALL BUSINESS CONCERN TO PERFORM SPECIFIC CONTRACTS. THAT SECTION FURTHER PROVIDES THAT SUCH CERTIFICATIONS ARE "CONCLUSIVE.' FURTHER, OUR OFFICE HAS HELD THAT THE REFUSAL OF SBA TO ISSUE A COC MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO A BIDDER'S LACK OF COMPETENCY OR CREDIT. COMP. GEN. 705.

SINCE SBA, PURSUANT TO THE AUTHORITY VESTED IN IT BY 15 U.S.C. 637 (B) (7), DETERMINED NOT TO CERTIFY YOUR FIRM'S CAPACITY TO THE PROCUREMENT ACTIVITY, IT MUST BE CONCLUDED THAT THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY HAS BEEN AFFIRMED. THAT BEING THE CASE, NO LEGAL AWARD COULD HAVE BEEN MADE TO YOUR FIRM UNDER 10 U.S.C. 2305 (B) WHICH REQUIRES THAT AWARDS BE MADE TO "RESPONSIBLE BIDDERS" ONLY.

IN VIEW OF THE FOREGOING, WE SEE NO BASIS FOR DISTURBING THE ADMINISTRATIVE ACTION TAKEN IN REJECTING YOUR BID. ACCORDINGLY, YOUR PROTEST IS DENIED.