B-167563, B-167652, OCT. 13, 1969

B-167563,B-167652: Oct 13, 1969

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FACILITY CAPABILITY REPORT WHERE PROTESTANT'S LOW BIDS WERE REJECTED UNDER TWO INVITATIONS FOR POST OFFICE BOXES AFTER PLANT FACILITIES REPORT IN PREAWARD SURVEY. NO LEGAL BASIS EXISTS FOR OBJECTION TO BID REJECTION SINCE DETERMINATION OF BIDDER'S RESPONSIBILITY IS PRIMARILY FUNCTION OF ADMINISTRATIVE OFFICER CONCERNED. WILL NOT BE DISTURBED ABSENT BAD FAITH OR LACK OF REASONABLE GROUNDS THEREFOR. AUTHORITY IS LACKING TO REVIEW SBA'S DETERMINATIONS RESPECTING ISSUANCE OF CERTIFICATES OF COMPETENCY. WHERE CERTIFICATE IS DENIED. WE HAVE NOT RECEIVED YOUR COMMENTS. ARE CONSIDERING THE PROTESTS ON THE RECORD BEFORE US. NINE BIDS WERE RECEIVED IN RESPONSE TO SOLICITATION NO. 1314. IN LIGHT OF THE FACT THAT YOUR COMPANY WAS UNKNOWN TO THE PROCUREMENT ACTIVITY.

B-167563, B-167652, OCT. 13, 1969

BIDDERS--QUALIFICATIONS--PREAWARD SURVEYS--FACILITY CAPABILITY REPORT WHERE PROTESTANT'S LOW BIDS WERE REJECTED UNDER TWO INVITATIONS FOR POST OFFICE BOXES AFTER PLANT FACILITIES REPORT IN PREAWARD SURVEY, RECOMMENDED NO AWARD UPON FINDING PROTESTANT LACKED CAPABILITY AND CAPACITY TO PRODUCE PROCURED ITEMS, AND SMALL BUSINESS ADMINISTRATION (SBA) DECLINED TO ISSUE CERTIFICATE OF COMPETENCY, NO LEGAL BASIS EXISTS FOR OBJECTION TO BID REJECTION SINCE DETERMINATION OF BIDDER'S RESPONSIBILITY IS PRIMARILY FUNCTION OF ADMINISTRATIVE OFFICER CONCERNED, AND WILL NOT BE DISTURBED ABSENT BAD FAITH OR LACK OF REASONABLE GROUNDS THEREFOR. MOREOVER, AUTHORITY IS LACKING TO REVIEW SBA'S DETERMINATIONS RESPECTING ISSUANCE OF CERTIFICATES OF COMPETENCY, AND WHERE CERTIFICATE IS DENIED, ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED.

TO FENIX, INC.:

WE REFER TO YOUR TELEGRAMS OF JULY 25 AND AUGUST 7, 1969, PROTESTING AGAINST THE REJECTION OF YOUR LOW BIDS FOR POST OFFICE LOCK BOXES UNDER INVITATIONS FOR BIDS NOS. 1314 AND 1392, RESPECTIVELY, ISSUED BY THE POST OFFICE DEPARTMENT. BY LETTER DATED AUGUST 18, 1969, OUR OFFICE FORWARDED THE ADMINISTRATIVE REPORT ON THE PROTESTS TO YOUR COMPANY, REQUESTING THE RECEIPT OF WRITTEN COMMENTS WITHIN 10 DAYS FROM THE DATE OF THE LETTER. SUBSEQUENTLY, YOU ADVISED OUR OFFICE THAT THE COMMENTS WOULD BE RECEIVED BY SEPTEMBER 5, 1969. TO DATE, WE HAVE NOT RECEIVED YOUR COMMENTS, AND THEREFORE, ARE CONSIDERING THE PROTESTS ON THE RECORD BEFORE US.

NINE BIDS WERE RECEIVED IN RESPONSE TO SOLICITATION NO. 1314, ISSUED MAY 13, 1969. YOUR COMPANY SUBMITTED THE LOW BID ON 13 ITEMS IN THE AMOUNT OF $446,975. THE SECOND LOW BID TOTALED $533,800. IN LIGHT OF THE FACT THAT YOUR COMPANY WAS UNKNOWN TO THE PROCUREMENT ACTIVITY, THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY TO DETERMINE YOUR COMPANY'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR WITHIN THE TERMS OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.310-5. A PLANT FACILITIES REPORT, DATED JUNE 16, 1969, SUBSEQUENT TO A JUNE 12, 1969, VISIT TO YOUR COMPANY'S PLANT, CONCLUDED THAT YOUR COMPANY HAD NEITHER THE CAPABILITY NOR CAPACITY TO PRODUCE POSTAL EQUIPMENT AS REQUIRED BY THE SOLICITAION, AND DID NOT RECOMMEND AWARD. THE REPORT STATED THAT YOUR COMPANY HAD NOT PREVIOUSLY MANUFACTURED LOCK BOXES FOR THE POST OFFICE DEPARTMENT OR BID ON ANY OF ITS REQUIREMENTS. IN ADDITION, THE REPORT DISCLOSED THE ABSENCE OF AN INSPECTION SYSTEM ALTHOUGH INDICATING THAT SUCH A SYSTEM WOULD BE DEVELOPED IN THE FUTURE. BASED ON THE AFORE GOING, THE CONTRACTING OFFICER INITATED CERTIFICATE OF COMPETENCY ACTION WITH THE SMALL BUSINESS ADMINISTRATION (SBA) ON JUNE 17, 1969, IN ACCORDANCE WITH FPR 1-1.708-2. ON JUNE 27, 1969, SBA DECLINED TO ISSUE THE CERTIFICATE OF COMPETENCY, WHEREUPON, THE CONTRACTING OFFICER REJECTED YOUR BID AND MADE AWARD TO THE SECOND LOW BIDDER, WHOSE BID HAD BEEN ADMINISTRATIVELY DETERMINED TO BE REASONABLE WHEN COMPARED WITH RECENT COMPETITIVE BID PRICES OF EIGHT REGULAR LOCK BOX SUPPLIERS.

WITH RESPECT TO SOLICITATION NO. 1392, ISSUED JUNE 19, 1969, NINE BIDS WERE RECEIVED WITH YOUR COMPANY SUBMITTING THE LOW BID IN THE AGGREGATE AMOUNT OF $548,546. THE SECOND LOW BID CONSIDERED FOR AWARD TOTALED $818,782. IN LIGHT OF THE UNFAVORABLE PREAWARD SURVEY ON SOLICITATION NO. 1314, MADE LESS THAN 3 WEEKS PRIOR TO DATE OF BID OPENING, THE CONTRACTING OFFICER AGAIN REQUESTED CERTIFICATE OF COMPETENCY CONSIDERATION BY SBA ON SOLICITATION NO. 1392. ON JULY 31, 1969, SBA NOTIFIED THE CONTRACTING OFFICER THAT IT HAD DECLINED TO ISSUE THE CERTIFICATE OF COMPETENCY, WHEREUPON YOUR BID WAS REJECTED AND AWARD MADE TO THE SECOND LOW BIDDER. AN ADMINISTRATIVE DETERMINATION SIMILAR TO THAT MADE WITH RESPECT TO SOLICITATION NO. 1314 WAS MADE THAT THE SUCCESSFUL BIDDER'S PRICE WAS REASONABLE.

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 OBJECTION. B-164199, AUGUST 12, 1968; 37 COMP. GEN. 430, 435. IN B-159247, AUGUST 26, 1966, IT IS STATED:

"WE HAVE HELD THAT THE REFUSAL OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY AS TO A SMALL-BUSINESS BIDDER MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE BIDDER CONCERNED. 39 COMP. GEN. 705. WHEN THE ISSUANCE OF A CERTIFICATE OF COMPETENCY IS DENIED, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED. WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF THE SMALL BUSINESS ADMINISTRATION, OR TO REQUIRE IT TO ISSUE A CERTIFICATE OF COMPETENCY. NOR DO WE DISTURB THE DETERMINATIONS OF A CONTRACTING OFFICER WHERE, AS HERE, THEY APPEAR TO BE SUPPORTED BY THE EVIDENCE OF RECORD AND ARE NEITHER ARBITRARY NOR CAPRICIOUS.' SEE ALSO B-164513, OCTOBER 17, 1968; AND B-166942, JULY 28, 1969.

IN VIEW OF THE FOREGOING, NO LEGAL BASIS EXISTS FOR OUR OFFICE TO OBJECT TO THE REJECTION OF YOUR BIDS UNDER THE CITED SOLICITATIONS. ACCORDINGLY, YOUR PROTESTS ARE DENIED.