B-166005, MAR. 25, 1969

B-166005: Mar 25, 1969

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GARDNER: FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED JANUARY 23 AND SUPPLEMENTARY LETTERS DATED JANUARY 29. THE INVITATION WAS ISSUED ON NOVEMBER 26. BIDDERS ARE ADVISED THAT FOR EVALUATION OF BIDS - TO DETERMINE THE LOW AGGREGATE BID. BIDS WILL BE EVALUATED UTILIZING THE FOLLOWING ESTIMATED QUANTITIES AT THE PRICES SET FORTH BY THE BIDDERS UNDER PART II. THE METHOD TO BE USED IN FIGURING THE MONETARY AMOUNT FOR EACH ITEM IS SET FORTH IN ITEM 1. IMMEDIATELY BELOW THIS PROVISION A TABLE WAS INSERTED SHOWING AS TO EACH ITEM (1-39) THE QUANTITY (PAGES). THE FOLLOWING INFORMATION WAS GIVEN: QUANTITY UNIT MONETARY PAGE ITEM (PAGES) UNIT PRICE AMOUNT IMPRESSIONS . 000 COPIES AT THE BOTTOM OF THE TABLE APPEARS THE FOLLOWING CAVEAT: "IT IS EMPHASIZED THAT THE ABOVE ESTIMATES ARE FOR EVALUATION OF BIDS ONLY AND ARE NOT TO BE CONSTRUED BY BIDDERS AS REPRESENTING THE ACTUAL SERVICES THE SUCCESSFUL BIDDER WILL BE CALLED UPON TO PERFORM AND ARE NOT TO BE CONSTRUED AS A GUARANTEE OF THE VOLUME OF WORK WHICH MAY BE ORDERED UNDER THIS CONTRACT.'.

B-166005, MAR. 25, 1969

TO MR. JAMES F. GARDNER:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED JANUARY 23 AND SUPPLEMENTARY LETTERS DATED JANUARY 29, FEBRUARY 7, 21 AND 27, 1969, PROTESTING, ON BEHALF OF LITHO PRESS, INC., ANY AWARD UNDER AIR FORCE INVITATION FOR BIDS NO. F41699-69-B-0122, ISSUED BY KELLY AIR FORCE BASE, TEXAS.

THE INVITATION WAS ISSUED ON NOVEMBER 26, 1968, FOR THE ANNUAL REQUIREMENTS FOR DUPLICATING REPRODUCTION AND RELATED SERVICES ON A DELIVERY ORDER BASIS. NOTE 8 (B) OF THE INVITATION, AS AMENDED, PROVIDED:

"FOR EVALUATION OF BIDS ONLY. BIDDERS ARE ADVISED THAT FOR EVALUATION OF BIDS - TO DETERMINE THE LOW AGGREGATE BID, BIDS WILL BE EVALUATED UTILIZING THE FOLLOWING ESTIMATED QUANTITIES AT THE PRICES SET FORTH BY THE BIDDERS UNDER PART II, PRICING SCHEDULE. THE METHOD TO BE USED IN FIGURING THE MONETARY AMOUNT FOR EACH ITEM IS SET FORTH IN ITEM 1, ITEM 34, ITEM 36 AND ITEM 38.' IMMEDIATELY BELOW THIS PROVISION A TABLE WAS INSERTED SHOWING AS TO EACH ITEM (1-39) THE QUANTITY (PAGES), THE UNIT (COPIES) AND THE NUMBER OF PAGE IMPRESSIONS. AS TO ITEMS 1, 34, 36 AND 38, THE FOLLOWING INFORMATION WAS GIVEN:

QUANTITY UNIT MONETARY PAGE ITEM (PAGES) UNIT PRICE AMOUNT IMPRESSIONS --

1 50 25 COPIES $ 0.60 $ 30 1,250 34 20,000 100 SHEETS 0.04 800 2,000,000 SHEETS 36 100 PUBS. 100 PUBS. 15.00 15 100 PUBS. 38 3,100 100 COPIES0.40 1,240 310,000 COPIES

AT THE BOTTOM OF THE TABLE APPEARS THE FOLLOWING CAVEAT: "IT IS EMPHASIZED THAT THE ABOVE ESTIMATES ARE FOR EVALUATION OF BIDS ONLY AND ARE NOT TO BE CONSTRUED BY BIDDERS AS REPRESENTING THE ACTUAL SERVICES THE SUCCESSFUL BIDDER WILL BE CALLED UPON TO PERFORM AND ARE NOT TO BE CONSTRUED AS A GUARANTEE OF THE VOLUME OF WORK WHICH MAY BE ORDERED UNDER THIS CONTRACT.'

OF THE 28 SOURCES SOLICITED, THREE AGGREGATE BIDS WERE RECEIVED AS FOLLOWS:

NAME BID (ESTIMATED) LITHO PRESS, INC. $ 98,692.00 BRENHOLB, INC. 146,694.94 EDWARD L. JONES, D.B.A.

BORREGO PRINTERS (BORREGO) 85,812.45

A PREBID CONFERENCE AS CONTEMPLATED AND AUTHORIZED BY PARAGRAPH 2 207 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WAS NOT SCHEDULED SINCE THE PROCUREMENT WAS NOT CONSIDERED COMPLEX AND ONE HAD BEEN HELD PRIOR TO THE PREVIOUS PROCUREMENT AND NO QUESTIONS WERE RAISED ON IDENTICAL SPECIFICATIONS AND SIMILAR REQUIREMENTS. SINCE THE QUANTITY AND DELIVERY REQUIREMENTS COULD NOT DEFINITELY BE FORECAST, IT WAS DETERMINED THAT A CALL PROCUREMENT ARRANGEMENT (CPA) AS AUTHORIZED BY AIR FORCE PROCUREMENT INSTRUCTION (AFPI) 3-410.3 WOULD BEST SERVE THE GOVERNMENT'S NEEDS. THAT REGULATION IN PERTINENT PART PROVIDES:

"/A) DESCRIPTION. A CALL PROCUREMENT ARRANGEMENT IS AN AGREEMENT CONTAINING A SPECIFIC DESCRIPTION OF THE SUPPLIES OR SERVICES TO BE FURNISHED BUT NOT CONTAINING SPECIFIC QUANTITIES OR DELIVERY SCHEDULES. THE ARRANGEMENT, ALONG WITH OTHER TERMS, CONTAINS FIXED PRICES AND SPECIFIES THE PERIOD DURING WHICH CALLS MAY BE MADE. THE GOVERNMENT IS UNDER NO OBLIGATION TO CALL FOR ANY SUPPLIES OR SERVICES DURING SUCH PERIOD. QUANTITIES AND DELIVERY SCHEDULES ARE ESTABLISHED BY EACH CALL. THE ESTIMATED AGGREGATE PRICE OF THE CALLS WILL BE CONSIDERED THE AMOUNT OF THE CONTRACT WITHIN THE DELEGATION OF AUTHORITY TO MAKE AWARDS AND EXECUTE OR APPROVE CONTRACTS SET FORTH IN 1-455.

"/B) APPLICABILITY. A CALL PROCUREMENT ARRANGEMENT MAY BE APPROPRIATE WHERE QUANTITY AND DELIVERY REQUIREMENTS ARE NOT PRESENTLY KNOWN, BUT WHERE RECURRING REQUIREMENTS ARE EXPECTED TO ARISE IN CIRCUMSTANCES WHERE -- BY THE TIME SUCH REQUIREMENTS BECOME DEFINITELY KNOWN -- TIME WOULD NOT PERMIT SOLICITATION OF BIDS OR PROPOSALS, AND FIXED PRICES CAN BE ESTABLISHED AT THE OUTSET FOR THE SUPPLIES OR SERVICES TO BE PROCURED. THUS, A CALL PROCUREMENT ARRANGEMENT MAY BE APPLICABLE WHERE STANDBY PROCUREMENT COVERAGE IS REQUIRED AND CIRCUMSTANCES WILL NOT PERMIT FIRM CONTRACTUAL COMMITMENTS BY EITHER THE GOVERNMENT OR THE CONTRACTOR, FOR EXAMPLE: IN THE PROCUREMENT OF THE PRINTING OF TECHNICAL DATA OR OXYGEN.'

PURSUANT TO SUCH REGULATION, THE INVITATION AT PAGE 16 INCLUDED THE FOLLOWING CLAUSE:

"/A) UPON RECEIPT BY IT OF ANY DELIVERY ORDER ISSUED HEREUNDER BY THE CONTRACTING OFFICER, THE CONTRACTOR, PURSUANT TO SUCH ORDER, SHALL FURNISH TO THE GOVERNMENT SUPPLIES OR SERVICES OF THE TYPE AND AT THE PRICES SET FORTH IN THE SCHEDULE. ORDERS MAY BE ISSUED AT THE SOLE OPTION OF THE CONTRACTING OFFICER DURING THE PERIOD SET FORTH IN THE SCHEDULE. IT IS UNDERSTOOD AND AGREED THAT THE GOVERNMENT UNDERTAKES NO OBLIGATION HEREBY TO ISSUE ORDERS HEREUNDER. THE PROVISIONS OF THIS ARRANGEMENT, INCLUDING THE SCHEDULE, SHALL GOVERN ALL ORDERS ISSUED HEREUNDER DURING THE AFOREMENTIONED PERIOD.

"/B) DELIVERY ORDERS FOR SUPPLIES OR SERVICES SHALL BE ISSUED BY THE CONTRACTING OFFICER IN WRITING, DATED, AND NUMBERED. THEY SHALL SET FORTH (I) THE SUPPLIES OR SERVICES BEING ORDERED, (II) THE QUANTITIES TO BE FURNISHED, (III) DELIVERY OR PERFORMANCE DATES, (IV) PLACE OF DELIVERY OR PERFORMANCE, AND (V) PACKING AND SHIPPING INSTRUCTIONS, IF ANY. AMENDMENTS TO DELIVERY ORDERS MAY BE ISSUED BY THE CONTRACTING OFFICER BY WRITTEN CHANGE ORDER. EACH DELIVERY ORDER OR CHANGE ORDER WHICH INCREASE THE DOLLAR AMOUNT, SHALL CONTAIN A CITATION OF FUNDS FROM WHICH PAYMENT FOR THE SUPPLIES OR SERVICES ORDERED SHALL BE MADE.'

WE HAVE REVIEWED THIS PROCUREMENT IN THE LIGHT OF THE APPLICABLE REGULATIONS AND HAVE CONCLUDED THAT THE INVITATION IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

YOUR PROTEST RAISES FIVE CONTENTIONS WHICH ARE CONSIDERED AND ANSWERED BELOW.

YOU FIRST CONTEND THAT "THE DESCRIPTION OF THE WORK TO BE PERFORMED IS SO VAGUE, INCOMPLETE AND MISLEADING THAT ALL PROSPECTIVE BIDDERS CANNOT BID ON AN EQUAL COMPETITIVE BASIS FOR SUFFICIENT INFORMATION IS NOT FURNISHED IN THE IFB TO ALLOW BIDDERS TO INTELLIGENTLY FIGURE EVEN THEIR BASIC COSTS.' YOU ALLEGE FURTHER THAT ESTIMATES OF PAGE IMPRESSIONS ARE GROSSLY INACCURATE AND THAT THERE IS A COMPLETE LACK OF INFORMATION WITH REFERENCE TO THE COLLATING REQUIREMENTS.

IN REPLY, THE PROCUREMENT ACTIVITY HAS ADVISED, BASED ON A REVIEW BY ITS TECHNICAL PERSONNEL, THAT THE DESCRIPTION OF THE WORK TO BE PERFORMED IS CLEARLY DEFINED IN PAGES 9 THROUGH 14 OF THE INVITATION AND IS READILY UNDERSTANDABLE BY ONE CONVERSANT WITH TERMINOLOGY OF THE PRINTING AND DUPLICATING INDUSTRY. IN ORDER TO PROVIDE NECESSARY ASSISTANCE TO PROSPECTIVE BIDDERS, PARAGRAPH 3 OF THE INVITATION INSTRUCTIONS AND CONDITIONS ADVISED BIDDERS AS TO THE MEANS WHEREBY EXPLANATIONS REGARDING THE MEANING OR INTERPRETATION OF THE INVITATION COULD BE OBTAINED BEFORE BID OPENING. WE UNDERSTAND THAT NO REQUESTS FOR INFORMATION OR INTERPRETATIONS WERE RECEIVED FROM ANY BIDDERS. IN ANY EVENT, THE METHOD OF PROCUREMENT WAS STANDARD WITH THE PRINTING INDUSTRY AND IT SEEMS THAT THE INVITATION WAS FULLY UNDERSTOOD BY THE INDUSTRY AS TO THE GOVERNMENT'S REQUIREMENTS.

THE ESTIMATED QUANTITIES AND PAGE IMPRESSIONS SHOWN ON THE TABLE BELOW NOTE 8 (B) OF THE INVITATION ARE NOT MISLEADING AND ARE BASED ON PAST EXPERIENCE AS WELL AS UNFORESEEN JOBS EXPECTED DURING THE LIFE OF THE CONTRACT, AND CLEARLY INDICATE TO PROSPECTIVE BIDDERS THE WORKLOAD WHICH MAY DEVELOP. SINCE SPECIFIC QUANTITIES OR DELIVERY SCHEDULES COULD NOT BE FURNISHED, THE CALL PROCUREMENT ARRANGEMENT AS AUTHORIZED IN AFPI 3-410.3 WAS CONSIDERED MOST FEASIBLE. UNDER THIS ARRANGEMENT AND AS PROVIDED AT PAGE 16 OF THE INVITATION, THE GOVERNMENT IS NOT OBLIGATED TO PROCURE ANYTHING UNDER THE CONTRACT. FURTHER, THE BASE PROCUREMENT OFFICE HAS NO BASIS TO CONCLUDE THAT THE PROPOSED CONTRACT WILL NECESSARILY EXCEED THE WORKLOAD UNDER THE PRESENT CONTRACT, AS YOU ALLEGE IN YOUR BRIEF. FACT, THE ESTIMATE SUBMITTED BY THE OFFICE HAVING TECHNICAL COGNIZANCE FOR THE CURRENT CONTRACT WAS $178,000; WHEREAS, THE PURCHASE REQUEST SUBMITTED FOR THE PROPOSED CONTRACT IS ONLY $95,945.40.

COLLATING IS NOT SET FORTH AS A SEPARATE ITEM TO BE PRICED IN THE INVITATION. EACH ITEM IN THE PRICING SCHEDULE, EXCEPT ITEMS 34 THROUGH 39, INCLUDES COLLATING AS WELL AS STAPLING AND PACKAGING. THE ESTIMATED NUMBER OF SHEETS TO BE COLLATED CAN BE READILY ASCERTAINED BY REFERENCE TO THE TABLE APPEARING BELOW NOTE 8 (B) OF THE INVITATION. IN THIS REGARD, PARAGRAPH "G" OF THE INVITATION, AS AMENDED, SPECIFICALLY PROVIDES THAT THE NUMBER OF SHEETS TO BE COLLATED FOR A PUBLICATION MAY RANGE FROM TWO TO 500 SHEETS PER DOCUMENT. IT APPEARS, THEREFORE, THAT KNOWLEDGEABLE BIDDERS WERE PROVIDED WITH SUFFICIENT DATA AS TO THE ESTIMATED REQUIREMENTS TO ENABLE THEM TO SUBMIT BIDS WHICH WOULD REFLECT THOSE ESTIMATED NEEDS.

SECONDLY, YOU CONTEND THAT "CONVERSELY, THE DESCRIPTION OF THE WORK TO BE PERFORMED IS SO VAGUE, INCOMPLETE AND MISLEADING, THE GOVERNMENT PRE-AWARD SURVEY TEAM HAS NO GUIDE LINES TO GO BY TO INTELLIGENTLY EVALUATE THE BIDDER'S CAPABILITY OF PERFORMING THE CONTRACT.'

THE ALLEGATION OF VAGUENESS, ETC., HAS BEEN ANSWERED ABOVE. REGARDING THE EVALUATION BY THE PREAWARD SURVEY TEAM, THE RECORD SHOWS THAT THE TWO REPRESENTATIVES FROM THE PRINTING PLANT AT KELLY AIR FORCE BASE WHO WERE MEMBERS OF THE SURVEY TEAM HAVE A TOTAL OF 36 YEARS' EXPERIENCE IN THE PRINTING FIELD; THAT THEY ARE EMPLOYED IN PRINTING JOBS ON A DAILY BASIS; AND THAT THEY ARE FULLY QUALIFIED TO JUDGE THE DUPLICATING CAPABILITIES OF THE RESPONDING BIDDERS. MOREOVER, SUCH PREAWARD SURVEY MEMBERS ARE FAMILIAR WITH THE QUANTITIES AND TYPE OF WORK TO BE PERFORMED UNDER THE CONTRACT. IT THEREFORE APPEARS THAT EXPERT ADVICE WAS AVAILABLE WITH REGARD TO:

(1) GENERAL EQUIPMENT REQUIREMENTS;

(2) SPECIAL QUANTITATIVE REQUIREMENTS; AND

(3) DIRECT DAY-TO-DAY INFORMATION REGARDING THE PEAKS AND VALLEYS OF THE WORKLOAD. THE PREAWARD SURVEY AND OTHER INFORMATION IN THE RECORD DEMONSTRATE THAT THE LOW BIDDER UNDERSTANDS THE REQUIREMENTS OF THE INVITATION AND IS CAPABLE OF PERFORMING THE CONTEMPLATED CONTRACT.

THIRDLY, YOU CONTEND THAT "ONLY THE EXISTING CONTRACTOR, WITH PRIVATE KNOWLEDGE OF THE HISTORY OF THE GOVERNMENT'S ACTUAL REQUIREMENTS ON THIS PROCUREMENT, IS IN A POSITION TO EVALUATE THE BASIC COSTS AND BID INTELLIGENTLY; AND AS A RESULT THE GOVERNMENT DOES NOT RECEIVE RESPONSIBLE COMPETITIVE BIDS ON THIS PROCUREMENT.'

NATURALLY, THE CURRENT CONTRACTOR HAS HISTORICAL KNOWLEDGE OF THE GOVERNMENT'S PAST REQUIREMENTS; HOWEVER, LIKE THE OTHER BIDDERS, IT HAD TO RESPOND TO THE ESTIMATED ADVERTISED REQUIREMENTS AND IT HAD NO KNOWLEDGE OF THE ACTUAL REQUIREMENTS WHICH ARE TO BE GENERATED. THE INCUMBENT CONTRACTOR MAY HAVE AN ADVANTAGE OVER THE OTHER BIDDERS IN THAT IT HAD EXPERIENCED THE FREQUENCIES OF CERTAIN CATEGORIES OF WORK. THESE FACTORS ARE INHERENT IN GOVERNMENT PROCUREMENT AND ARE NOT PREJUDICIAL TO OTHER BIDDERS PER SE.

FOURTHLY, YOU CONTEND THAT "THE TRUE IDENTITY OF THE APPARENT LOW BIDDER IS NOT REVEALED BY HIS BID AND CONSEQUENTLY THE GOVERNMENT DOES NOT KNOW WITH WHOM IT IS CONTRACTING.'

THE RECORD SHOWS THAT MR. EDWARD L. JONES IS THE OWNER AND MANAGER OF BORREGO PRINTERS SINCE ITS ESTABLISHMENT IN 1964. THE COMPANY IS A SOLE PROPRIETORSHIP AND OPERATES INDEPENDENTLY OF THE EDWARD L. JONES BOOKKEEPING SERVICE ALTHOUGH IT IS LOCATED AT THE SAME PREMISES. THE PREAWARD SURVEY ESTABLISHED THAT BORREGO PRINTERS HAS SUFFICIENT FINANCIAL CAPABILITIES TO PROPERLY ASSUME THE OBLIGATIONS UNDER THE CONTRACT IF AWARDED. FURTHER, THE BROOKS FIELD NATIONAL BANK, SAN ANTONIO, TEXAS, HAS ESTABLISHED FOR BORREGO A SUFFICIENT LINE OF CREDIT TO PERFORM THE CONTRACT. THE NECESSITY FOR COSIGNERS ON THE BID ITSELF IS NEITHER REQUIRED NOR DESIRABLE UNDER THE CIRCUMSTANCES SINCE ALL EVIDENCE INDICATES NOTHING MORE THAN A FINANCIAL ARRANGEMENT IS INVOLVED.

LASTLY, YOU CONTEND THAT "THERE IS NO SUBSTANTIAL EVIDENCE IN THE RECORD TO SUPPORT A DETERMINATION THAT THE APPARENT LOW BIDDER IS COMPETENT OR RESPONSIBLE.'

THE INVITATION REQUESTS IN PART IX, PAGE 15, THAT THE PROSPECTIVE BIDDERS LIST THE SIZES AND NUMBER OF THEIR AVAILABLE PRESSES TO GIVE THE GOVERNMENT A BETTER UNDERSTANDING OF THE BIDDER'S ABILITY TO PERFORM THE PRINTING SERVICES. THE GOVERNMENT INDUSTRIAL SPECIALIST HAS DETERMINED THAT THE LOW BIDDER HAS AVAILABLE THE FOLLOWING EQUIPMENT:

MODEL 2000 MASTER MAKER

MULTILITH 2650 AUTOMATED

MULTILITH 1250 (AUTOMATIC CYLINDER)

MULTILITH 85 DUPLICATOR

THOMAS GATHERMATIC COLLATOR

AUTOMATIC STAPLING ATTACHMENT

PAPER DRILL

POWER STITCHING MACHINE

THE EQUIPMENT ON HAND WAS INSPECTED BY THE PREAWARD SURVEY TEAM WHICH REPORTED IT SATISFACTORY AND ADEQUATE FOR THIS PROCUREMENT. IT WAS FURTHER DETERMINED THAT THE LOW BIDDER HAS THE NECESSARY EQUIPMENT, MANPOWER, SKILL AND EXPERIENCE TO ADEQUATELY PERFORM UNDER AN AWARD; THAT BORREGO HAS SUBMITTED A RESPONSIVE, RESPONSIBLE BID AT PRICES ARRIVED AT INDEPENDENTLY BY THE BIDDER; AND THAT IT HAS ADEQUATE PLANT LOADING FACILITIES, PRODUCTION AND MATERIAL CONTROL, AND RECEIVING AND INSPECTION SYSTEMS. OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY AND NOT OF THE GENERAL ACCOUNTING OFFICE. 38 COMP. GEN. 131; 33 ID. 549. WHETHER A BIDDER IS, OR IS NOT, CAPABLE OF PRODUCING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT, AND ABSENT EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITIES WAS BASED ON ERROR, FRAUD, OR FAVORITISM, OUR OFFICE WILL ACCEPT THE FINDINGS OF THE CONTRACTING AGENCY. 40 COMP. GEN. 294. WE HAVE ALSO STATED THAT THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT, WHICH, WHILE IT SHOULD BE BASED ON FACT AND ARRIVED AT IN GOOD FAITH, MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED, SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY-TO-DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, WE HAVE HELD THAT IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING OFFICIALS. 39 COMP. GEN. 705, 711.

UNDER ASPR 1-905, THE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS REQUIRED TO BE MADE ON THE BASIS OF CURRENTLY VALID INFORMATION ON FILE OR WITHIN THE KNOWLEDGE OF PERSONNEL IN THE DEPARTMENT OF DEFENSE, AND GENERALLY THE INFORMATION REGARDING THE PROSPECTIVE CONTRACTOR'S RESPONSIBILITY, INCLUDING PREAWARD SURVEYS WHEN DEEMED NECESSARY, MUST BE OBTAINED PROMPTLY AFTER BID OPENING OR RECEIPT OF PROPOSALS. UNDER ASPR 1-905.4, A PREAWARD SURVEY IS DEFINED AS AN EVALUATION BY A CONTRACT ADMINISTRATION OFFICE OF A PROSPECTIVE CONTRACTOR'S CAPABILITY TO PERFORM UNDER THE TERMS OF A PROPOSED CONTRACT, AND WHEN SUCH A SURVEY IS MADE, THE CONTRACTING OFFICER IS REQUIRED TO USE THE EVALUATION IN DETERMINING THE PROSPECTIVE CONTRACTOR'S RESPONSIBILITY.

WHILE YOU INFER THAT THE SMALL BUSINESS ADMINISTRATION (SBA) SHOULD BE REQUIRED TO PASS ON THE LOW BIDDER'S CAPACITY, NO QUESTION OF CAPACITY OR CREDIT AROSE AS A RESULT OF THE PREAWARD SURVEY AND THERE IS, THEREFORE, NO NECESSITY TO REFER THE MATTER TO SBA FOR CERTIFICATE OF COMPETENCY PURPOSES UNDER THE PROVISIONS OF 15 U.S.C. 637 (B) (7). SEE ASPR 1-705.4 (C). NO NECESSITY EXISTS FOR AN SBA DETERMINATION OF A BIDDER'S CAPABILITY AT THE REQUEST OF A PROTESTING COMPETING BIDDER WHERE THE CONTRACTING OFFICER HAS MADE THE DETERMINATION OF RESPONSIBILITY REQUIRED UNDER ASPR 1-903. HAVING MADE THE REQUIRED DETERMINATION OF RESPONSIBILITY UNDER ASPR 1-903 NO JUSTIFICATION EXISTS TO REFER THE MATTER OF THE LOW BIDDER'S STATUS AS A MANUFACTURER OR DEALER TO THE SECRETARY OF LABOR UNDER PROVISIONS OF THE WALSH-HEALEY ACT (41 U.S.C. 35).

THE RECORD ESTABLISHES THAT THE NECESSARY DETERMINATION REQUIRED BY THE PROCUREMENT REGULATIONS AS TO THE RESPONSIBILITY OF BORREGO WAS MADE BY THE CONTRACTING OFFICER AND, IN THE ABSENCE OF A SHOWING OF CAPRICIOUS OR ARBITRARY ACTION, WE ARE REQUIRED TO ACCEPT AS FINAL THE ADMINISTRATIVE DETERMINATION THAT THE LOW BIDDER IS FINANCIALLY ABLE AND TECHNICALLY CAPABLE OF PERFORMING THE CONTRACT.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO QUESTION THE CONTRACTING OFFICER'S CONCLUSION THAT BORREGO IS A RESPONSIBLE BIDDER.