B-167337, AUG. 1, 1969

B-167337: Aug 1, 1969

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LOW BIDDER WHO WAS DETERMINED TO BE NONRESPONSIBLE FOR WORK DETERMINED TO BE OF HIGH URGENCY PRIORITY HAD BID PROPERLY REJECTED. INC.: REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 25. YOUR COMPANY WAS NOT SOLICITED BECAUSE THE PROCUREMENT ACTIVITY HAD DETERMINED THAT YOUR FACILITIES WERE INADEQUATE FOR THE WORK TO BE PERFORMED. IT WAS ADDED TO THE LIST OF BIDDERS. SEVEN BIDS WERE RECEIVED AND OPENED ON JUNE 18. THIS CONTRACTOR'S FACILITIES ARE CONSIDERED TO BE LESS THAN MARGINAL. STATED IT WAS HIS INTENTION TO USE HIS OWN 13 ACRE FACILITY FOR THESE REPAIRS. THE CONTRACTOR IS IN THE PROCESS OF DEVELOPING HIS FACILITY. THIS FACILITY WILL NOT BE READY BY 24 JUNE 1969.'. AWARD WAS MADE TO THE SECOND LOW BIDDER.

B-167337, AUG. 1, 1969

BID PROTEST - NONRESPONSIBILITY DECISION DENYING PROTEST AGAINST REJECTION OF LOW BID OF R.R. ALLEN, INC., FOR REPAIR OF ONE ASSUALT CRAFT FOR NAVAL SHIP SYSTEMS COMMAND. LOW BIDDER WHO WAS DETERMINED TO BE NONRESPONSIBLE FOR WORK DETERMINED TO BE OF HIGH URGENCY PRIORITY HAD BID PROPERLY REJECTED. RECORD FULLY DEMONSTRATED URGENCY OF WORK AND JUSTIFIED NONREFERRAL OF MATTER TO SMALL BUSINESS ADMINISTRATION FOR CERTIFICATE OF COMPETENCY.

TO R. R. ALLEN, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 25, 1969, PROTESTING THE AWARD OF A CONTRACT TO ANY BIDDER OTHER THAN YOUR COMPANY UNDER INVITATION FOR BIDS NO. N62678-69-B-203, ISSUED BY THE NAVAL SHIP SYSTEMS COMMAND, SUPERVISOR OF SHIPBUILDING, CONVERSION AND REPAIR, PORTSMOUTH, VIRGINIA.

THE INVITATION, ISSUED ON JUNE 4, 1969, REQUESTED BIDS FOR THE REPAIR OF ONE ASSAULT CRAFT, LCM (8) C-2000604. INITIALLY, YOUR COMPANY WAS NOT SOLICITED BECAUSE THE PROCUREMENT ACTIVITY HAD DETERMINED THAT YOUR FACILITIES WERE INADEQUATE FOR THE WORK TO BE PERFORMED; HOWEVER, IN ACCORDANCE WITH YOUR COMPANY'S REQUEST, IT WAS ADDED TO THE LIST OF BIDDERS. SEVEN BIDS WERE RECEIVED AND OPENED ON JUNE 18, 1969. YOUR COMPANY SUBMITTED THE LOWEST BID, FOLLOWED BY THE BID OF COASTAL BOAT WORKS AND MARINA, INC. ON JUNE 18, 1969, THE CONTRACTING OFFICER ORDERED A PREAWARD SURVEY OF YOUR COMPANY'S FACILITIES TO BE CONDUCTED BY VARIOUS REPRESENTATIVES OF THE PROCUREMENT ACTIVITY. THE PREAWARD SURVEY RECOMMENDED, ON JUNE 23, 1969, THAT NO AWARD BE MADE TO YOUR COMPANY. THE SURVEY STATED, IN PART, AS FOLLOWS:

"5. THIS CONTRACTOR'S FACILITIES ARE CONSIDERED TO BE LESS THAN MARGINAL. HE HAS USED OTHER SUB-CONTRACTOR'S FACILITIES FOR PREVIOUS NAVY WORK, BUT STATED IT WAS HIS INTENTION TO USE HIS OWN 13 ACRE FACILITY FOR THESE REPAIRS. THE CONTRACTOR IS IN THE PROCESS OF DEVELOPING HIS FACILITY, AND SHOULD BE IN A POSITION TO PERFORM WORK OF THIS TYPE IN THE FUTURE IF HIS PRESENT RATE OF PROGRESS CONTINUES, BUT THIS FACILITY WILL NOT BE READY BY 24 JUNE 1969.'

ON JUNE 23, 1969, THE CONTRACTING OFFICER NOTIFIED YOUR COMPANY THAT ITS BID HAD BEEN REJECTED ON THE GROUND OF NONRESPONSIBILITY. ON JUNE 25, 1969, AWARD WAS MADE TO THE SECOND LOW BIDDER, COASTAL BOAT WORKS AND MARINA, INC.

IN THIS REGARD, IT SHOULD BE NOTED THAT THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM A CONTRACT IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICER CONCERNED, AND, IN THE ABSENCE OF BAD FAITH OR THE LACK OF A REASONABLE GROUND THEREFOR, THERE IS NO BASIS FOR LEGAL OBJECTION. 37 COMP. GEN. 430; B-161814, AUGUST 22, 1967; B- 162098, OCTOBER 9, 1967; B-165601, DECEMBER 27, 1968; B-166942, JULY 28, 1969.

YOU PROTEST THE AWARD OF THE CONTRACT TO ANY OTHER BIDDER WITHOUT RECOURSE TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CERTIFICATE OF COMPETENCY PROCEDURE AS CALLED FOR IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). ASPR 1-705.4 (C) PROVIDES THAT WHEN THE BID OF A SMALL BUSINESS CONCERN IS TO BE REJECTED SOLELY BECAUSE THE CONTRACTING OFFICER HAS DETERMINED THAT THE CONCERN IS NONRESPONSIBLE AS TO CAPACITY TO PERFORM THE CONTRACT, THE MATTER SHALL BE REFERRED TO SBA, AND AWARD SHALL NOT BE MADE UNTIL SBA RENDERS ITS DECISION OR UNTIL 15 WORKING DAYS HAVE ELAPSED, WHICHEVER IS EARLIER. HOWEVER, ASPR 1-705.4 (C) PROVIDES, AS FOLLOWS:

"/IV) A REFERRAL NEED NOT BE MADE TO THE SBA IF THE CONTRACTING OFFICER CERTIFIES IN WRITING, AND HIS CERTIFICATE IS APPROVED BY THE CHIEF OF THE PURCHASING OFFICE, THAT THE AWARD MUST BE MADE WITHOUT DELAY, INCLUDES SUCH CERTIFICATE AND SUPPORTING DOCUMENTATION IN THE CONTRACT FILE, AND PROMPTLY FURNISHES A COPY TO THE SBA. CONTRACTING OFFICERS SHALL, IMMEDIATELY UPON RECEIPT OF SUFFICIENT INFORMATION, MAKE A DETERMINATION CONCERNING THE RESPONSIBILITY OF THE LOW RESPONSIVE PROSPECTIVE SMALL BUSINESS CONTRACTOR. IF A CONTRACTING OFFICER MAKES A DETERMINATION OF NONRESPONSIBILITY, AND IF ONLY CAPACITY OR CREDIT CONSIDERATIONS ARE INVOLVED, HE SHALL PROMPTLY REFER TO SBA FOR CERTIFICATE OF COMPETENCY CONSIDERATION UNLESS HE EXECUTES A DOCUMENTED CERTIFICATE OF URGENCY INDICATING THE SPECIFIC REASONS WHY AN AWARD MUST BE MADE WITHOUT THE DELAY INCIDENT TO REFERRAL TO SBA. REFERRAL OF A CASE TO SBA OR EXECUTION OF A CERTIFICATE OF URGENCY SHALL NOT BE DEFERRED PENDING INVESTIGATION AND DETERMINATION OF THE RESPONSIBILITY OF OTHER OFFERORS.'

ON JUNE 27, 1969, IN COMPLIANCE WITH THIS SECTION, THE PROCUREMENT ACTIVITY NOTIFIED THE SBA RICHMOND, VIRGINIA OFFICE OF ITS INTENTION TO REJECT YOUR COMPANY'S BID ON THE GROUND OF NONRESPONSIBILITY, ACCOMPANIED BY SUFFICIENT DOCUMENTATION, INDICATING TO SBA THAT AWARD HAD BEEN MADE TO THE LOW RESPONSIBLE BIDDER. THE RECORD DISCLOSED THE ADEQUATE JUSTIFICATION FOR THE NONREFERRAL TO SBA DUE TO URGENCY. WE ARE ADVISED THAT REPAIRS FOR THE ASSAULT CRAFT, ASSIGNED TO COMMANDER AMPHIBIOUS FORCE, U.S. ATLANTIC FLEET (COMPHIBLANT), WERE ASSIGNED A HIGH URGENCY PRIORITY DESIGNATION REQUIRING THE PROCUREMENT ACTIVITY TO SCHEDULE THE VESSEL ON A PARTICULAR DATE AND TO RETURN THE VESSEL TO THE FLEET BY A CERTAIN DATE. COMPHIBLANT AGREED TO RESTRICT AVAILABILITY OF THE VESSEL FOR OFFICIAL MISSIONS FROM JUNE 24, 1969, TO AUGUST 25, 1969. THE PROCUREMENT ACTIVITY DETERMINED THAT IN ORDER FOR THE REPAIRS ON THE VESSEL TO BE COMPLETED BY THE REQUIRED DATE (AUGUST 25, 1969), WORK HAD TO BEGIN NO LATER THAN JUNE 24, 1969. BECAUSE OF THE PROCUREMENT ACTIVITY'S WORKLOAD, THE INVITATION WAS NOT ISSUED UNTIL JUNE 4, 1969. ON JUNE 20, 1969, A REPRESENTATIVE OF COMPHIBLANT REITERATED THE MILITARY NECESSITY FOR REPAIRS AND THE MANDATORY NATURE OF THE COMPLETION DATE.

SINCE THE RECORD FULLY DEMONSTRATED THE URGENCY OF THE REQUIRED REPAIR WORK, WHICH URGENCY JUSTIFIED NONREFERRAL TO SBA UNDER THE PROVISIONS OF ASPR 1-705.4 (C), WE SEE NO VALID BASIS TO QUESTION THE AWARD MADE TO THE LOWEST RESPONSIBLE BIDDER. 46 COMP. GEN. 53, 55.