B-167142, JUL. 23, 1969

B-167142, JUL. 23, 1969

BID PROTEST - NONRESPONSIBILITY - SMALL BUSINESS ADMINISTRATION DECISION TO TREC INDUSTRIES, INC., SMALL BUSINESS CONCERN, DENYING PROTEST AGAINST REJECTION OF BID FOR FURNISHING PORTABLE TEMPERATURE ALTITUDE CHAMBER TO NAVAL AVIONICS FACILITY ON BASIS OF NONRESPONSIBILITY. IN VIEW OF FACT THAT BID WAS UNDER $10,000 ($9,743), REFERRAL TO SMALL BUSINESS ADMINISTRATION IS WITHIN DISCRETION OF CONTRACTING OFFICER (ASPR 1-705.4 (C) ). HOWEVER CONTRACTING OFFICER DID MAKE WRITTEN DETERMINATION OF BIDDER'S NONRESPONSIBILITY IN ACCORDANCE WITH ASPR 1-904. UNDER ADVERTISED PROCUREMENT THERE IS NO REQUIREMENT FOR NOTICE OF UNACCEPTABILITY AS IN THE CASE OF NEGOTIATED PROCUREMENTS.

TO TREC INDUSTRIES, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1969, PROTESTING AGAINST THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. N00163-69-B-0664, ISSUED BY THE NAVAL AVIONICS FACILITY, INDIANAPOLIS, INDIANA.

THE INVITATION REQUESTED BIDS FOR FURNISHING PORTABLE TEMPERATURE ALTITUDE CHAMBER--- BID "A," 1 EACH; BID "B," 2 EACH. YOU BID A UNIT PRICE OF $9,743 ON BID "A" AND BID "B.' TENNEY ENGINEERING, INC., BID $11,690 FOR BID "A" AND A $10,154 UNIT PRICE FOR BID "B.' ON APRIL 9, 1969, A PREAWARD SURVEY OF YOUR COMPANY WAS REQUESTED BY THE CONTRACTING OFFICER. BASED UPON THE REPORT OF THE PREAWARD SURVEY TEAM, THE CONTRACTING OFFICER DETERMINED YOU TO BE NONRESPONSIBLE FOR PURPOSES OF PERFORMING THE PROPOSED CONTRACT. THE DETERMINATION WAS BASED UPON THE FACT THAT YOU DID NOT HAVE THE NECESSARY ORGANIZATION, EXPERIENCE AND TECHNICAL SKILLS, OR THE ABILITY TO OBTAIN THE SAME DUE TO YOUR LACK OF CAPACITY. ALSO, IT WAS FOUND THAT YOU WERE NOT ABLE TO COMPLY WITH THE REQUIRED DELIVERY SCHEDULE DUE TO SUCH FACTORS. ACCORDINGLY, TENNEY ENGINEERING, INC., WAS AWARDED A CONTRACT ON MAY 22, 1969, FOR ONE UNIT UNDER ITS BID "A.'

IN YOUR LETTER OF JUNE 2, 1969, YOU ALLEGE THAT YOU ARE A SMALL BUSINESS CONCERN; THAT A CONTRACT IN THE AMOUNT OF MORE THAN $10,000 WAS AWARDED UNDER THE INVITATION; AND THAT YOUR COMPANY HAS THE NECESSARY TECHNICAL CAPABILITIES TO FULFILL THE CONTRACT. YOU SPECIFICALLY CONTEND THAT THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WAS VIOLATED IN THE FOLLOWING MANNER: "/1) TREC DID NOT RECEIVE NOTICE IN ACCORDANCE WITH ASPR 3-508.2, PRE-AWARD NOTICE OF UNACCEPTABLE FERS.''2) THE POST-AWARD NOTICE RECEIVED BY TREC, ENCLOSURE (1), DOES NOT COMPLY WITH ASPR 3-508.3, POST-AWARD NOTICE OF OFFERORS.''3) IN GIVING NO PRE-AWARD NOTICE, THE NAVAL AVIONIC FACILITY, MR. P. BARKER, CONTRACTING OFFICER, DID NOT AFFORD TREC INDUSTRIES THE OPPORTUNITY TO INVOKE ASPR 2-407.9, PROTESTS BEFORE AWARD.''4) FINALLY, SINCE TREC WAS NOT AFFORDED THE OPPORTUNITY TO FILE FOR A CERTIFICATE OF COMPETENCY IN ACCORDANCE WITH ASPR 1-705.4 THEN THE NAVAL AVIONIC FACILITY COULD NOT HAVE COMPLETED THE REQUIREMENTS OF ASPR 1 -904, DETERMINATIONS OF RESPONSIBILITY AND NON RESPONSIBILITY.'

REGARDING YOUR STATEMENT THAT YOU DID NOT RECEIVE NOTICE THAT YOUR BID WAS UNACCEPTABLE IN ACCORDANCE WITH ASPR 3-508.2, IT MAY BE POINTED OUT THAT THE PROVISION IS APPLICABLE ONLY TO OFFERS SUBMITTED IN RESPONSE TO REQUESTS FOR PROPOSALS AND IS NOT APPLICABLE TO BIDS UNDER AN INVITATION FOR BIDS AS HERE INVOLVED. THERE IS NO REQUIREMENT THAT AN AFFECTED BIDDER BE NOTIFIED OF A PROPOSED DETERMINATION OF NONRESPONSIBILITY PRIOR TO AWARD TO THE LOWEST RESPONSIBLE BIDDER.

THE POST AWARD NOTICE RECEIVED BY YOU WAS SENT BY THE NAVAL AVIONICS FACILITY IN COMPLIANCE WITH ASPR 2-408.1. THE PROVISIONS OF ASPR 3 508.3 WHICH YOU ALLEGE WERE VIOLATED ARE APPLICABLE ONLY TO PROCUREMENTS BY NEGOTIATION.

CONCERNING YOUR STATEMENT THAT THE GOVERNMENT'S FAILURE TO ADVISE YOU IN ADVANCE THAT AN AWARD WOULD BE MADE TO OTHER THAN YOUR COMPANY WAS IMPROPER SINCE IT PRECLUDED YOU FROM ENTERING A PROTEST BEFORE AWARD UNDER THE PROVISIONS OF ASPR 2-407.9, IT MAY BE STATED THAT THERE IS NO REQUIREMENT IN THE REGULATION THAT SUCH ADVANCE NOTICE BE GIVEN.

WE DO NOT AGREE WITH YOUR CONTENTION THAT THE MATTER OF YOUR RESPONSIBILITY SHOULD HAVE BEEN SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY. ASPR 1-705.4 (C) PROVIDES THAT FOR PROPOSED AWARDS EXCEEDING $2,500, BUT NOT EXCEEDING $10,000, IT IS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER AS TO WHETHER THE MATTER SHOULD BE REFERRED TO THE SBA FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY. INASMUCH AS YOUR BID WAS $9,743, THE CONTRACTING OFFICER DECIDED NOT TO REFER THE MATTER TO SBA. HE DID, HOWEVER, MAKE A WRITTEN DETERMINATION IN REGARD TO YOUR NONRESPONSIBILITY IN ACCORDANCE WITH THE PROVISIONS OF ASPR 1-904.