B-165982, MAR. 21, 1969

B-165982: Mar 21, 1969

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YOUR PROTEST WAS PREMISED ON THE BASIS THAT YOU WERE THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. THIS FINDING WAS MADE WITHOUT ANY REFERRAL OF FLEETWOOD. THIS OFFICE WAS ADVISED THAT THE DEFENSE CONTRACT SERVICES OFFICE. THE CONTRACTING OFFICER FOUND FLEETWOOD NONRESPONSIBLE DUE TO THE PRESENT DELINQUENCY RATE WHICH WAS ATTRIBUTED TO FACTORS OTHER THAN CAPACITY AND CREDIT COVERED BY A COC. REFERRAL OF FLEETWOOD TO SBA FOR A COC WAS NOT DEEMED NECESSARY. THE MATTER MUST BE REFERRED TO THE SBA ONLY IF THE UNSATISFACTORY RECORD OF PERFORMANCE WAS DUE SOLELY TO INADEQUATE CAPACITY OR CREDIT. * * *" IN THIS INSTANCE THE CONTRACTING OFFICER FOUND FLEETWOOD NONRESPONSIBLE FOR OTHER REASONS. IN VIEW OF THAT FINDING REFERRAL TO SBA WAS NOT REQUIRED.

B-165982, MAR. 21, 1969

TO FLEETWOOD METAL PRODUCTS CORPORATION:

WE REFER AGAIN TO YOUR TELEGRAM OF JANUARY 20, 1969, PROTESTING AGAINST THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. N00197 69-B-0032, ISSUED BY THE NAVAL ORDNANCE STATION, LOUISVILLE, KENTUCKY.

YOUR PROTEST WAS PREMISED ON THE BASIS THAT YOU WERE THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. THE ORDNANCE COMMAND REJECTED YOUR BID IN VIEW OF PAST PERFORMANCE DEFICIENCIES WHICH THEY CONSIDERED CAUSE TO FIND FLEETWOOD NONRESPONSIBLE. THIS FINDING WAS MADE WITHOUT ANY REFERRAL OF FLEETWOOD, A SMALL BUSINESS, TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR A CERTIFICATE OF COMPETENCY (COC).

THIS OFFICE WAS ADVISED THAT THE DEFENSE CONTRACT SERVICES OFFICE, NEW YORK, AFTER A SURVEY, RECOMMENDED AGAINST AWARD TO FLEETWOOD FOR SEVERAL REASONS INCLUDING A HISTORY OF DELINQUENT DELIVERIES AND DELINQUENCIES UNDER CURRENT CONTRACTS. AFTER CONSIDERING THAT RECOMMENDATION, THE CONTRACTING OFFICER FOUND FLEETWOOD NONRESPONSIBLE DUE TO THE PRESENT DELINQUENCY RATE WHICH WAS ATTRIBUTED TO FACTORS OTHER THAN CAPACITY AND CREDIT COVERED BY A COC. ACCORDINGLY, REFERRAL OF FLEETWOOD TO SBA FOR A COC WAS NOT DEEMED NECESSARY.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4 (C) (V) PROVIDES IN PART: "* * * IF A CONCERN DOES NOT MEET THE REQUIREMENTS OF 1-903.1 (III) AS TO A SATISFACTORY RECORD OF PERFORMANCE, THE MATTER MUST BE REFERRED TO THE SBA ONLY IF THE UNSATISFACTORY RECORD OF PERFORMANCE WAS DUE SOLELY TO INADEQUATE CAPACITY OR CREDIT. * * *" IN THIS INSTANCE THE CONTRACTING OFFICER FOUND FLEETWOOD NONRESPONSIBLE FOR OTHER REASONS, NOT LACK OF CAPACITY OR CREDIT. IN VIEW OF THAT FINDING REFERRAL TO SBA WAS NOT REQUIRED. THIS OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF THE RESPONSIBILITY OF A CONTRACTOR IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE AGENCY, NOT QUESTIONED BY OUR OFFICE IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE 37 COMP. GEN. 430.

ADDITIONALLY, THE ORDNANCE COMMAND HAS ADVISED THAT IN REVIEWING THE CONTRACT FILE, IN RESPONSE TO YOUR PROTEST, IT WAS DISCOVERED THAT FLEETWOOD HAD FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 0001. THAT AMENDMENT ADDED TO THE INVITATION FOR BIDS THE "DEFAULT" CLAUSE AS REQUIRED BY ASPR 7-103.11. THE RULE IS WELL SETTLED THAT THE FAILURE TO ACKNOWLEDGE AMENDMENTS WHICH MATERIALLY AFFECT THE CONTRACT TO BE AWARDED REQUIRES REJECTION OF THE WHOLE BID AS NONRESPONSIVE. SEE 37 COMP. GEN. 785; 41 ID. 550; 44 ID. 753.

ACCORDINGLY, UNDER NO CIRCUMSTANCES WAS THE BID BY FLEETWOOD PROPER FOR ACCEPTANCE AND AWARD TO THE NEXT LOW BIDDER WAS PROPER. THEREFORE YOUR PROTEST MUST BE DENIED.