B-169515, MAY 22, 1970

B-169515: May 22, 1970

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WAS NOT RESPONSIBLE BECAUSE OF UNFAVORABLE PLANT FACILITY REPORT AND SMALL BUSINESS ADMINISTRATION'S FINDING BIDDER WAS INELIGIBLE FOR CONSIDERATION FOR CERTIFICATE OF COMPETENCY BECAUSE OFFERING FOREIGN MADE SUPPLIES IS NOT OBJECTED TO SINCE ADMINISTRATIVE DETERMINATION OF BIDDER'S RESPONSIBILITY INVOLVES EXERCISE OF CONSIDERABLE RANGE OF DISCRETION AND IS NOT QUESTIONED UNLESS ARBITRARY. TO GUARANTEE LOCK COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 2. WAS FOR A REQUIREMENTS CONTRACT FOR VARIOUS ITEMS OF FSC 5340. WHICHEVER WAS LATER. IT WAS DISCLOSED THAT GUARANTEE PROPOSED TO FURNISH A FOREIGN MADE PRODUCT FOR ITEM 9. GSA DETERMINED THAT GUARANTEE WAS THE LOW BIDDER ON THAT ITEM.

B-169515, MAY 22, 1970

BIDDERS--QUALIFICATIONS--PREAWARD SURVEY--FACILITY CAPABILITY REPORT NEGATIVE DETERMINATION THAT LOW BIDDER ON ITEM 9, OF REQUIREMENT FOR DOOR CLOSERS, ETC; WAS NOT RESPONSIBLE BECAUSE OF UNFAVORABLE PLANT FACILITY REPORT AND SMALL BUSINESS ADMINISTRATION'S FINDING BIDDER WAS INELIGIBLE FOR CONSIDERATION FOR CERTIFICATE OF COMPETENCY BECAUSE OFFERING FOREIGN MADE SUPPLIES IS NOT OBJECTED TO SINCE ADMINISTRATIVE DETERMINATION OF BIDDER'S RESPONSIBILITY INVOLVES EXERCISE OF CONSIDERABLE RANGE OF DISCRETION AND IS NOT QUESTIONED UNLESS ARBITRARY, CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE. SEE 43 COMP. GEN. 298 (1963).

TO GUARANTEE LOCK COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 2, 1970, PROTESTING WITH REGARD TO SOLICITATION NO. FPNGH-B-70752-A-12-11-69, ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THE SOLICITATION, ISSUED ON NOVEMBER 20, 1969, WAS FOR A REQUIREMENTS CONTRACT FOR VARIOUS ITEMS OF FSC 5340, DOOR CLOSERS, HOLDERS, CHECKS, LOCK SETS, SPRINGS, REEL KEY CHAINS, AND ROBE HOOKS, FOR THE PERIOD MAY 1, 1970, OR DATE OF AWARD, WHICHEVER WAS LATER, THROUGH APRIL 30, 1971. GSA REPORTS THAT AT BID OPENING ON DECEMBER 11, 1969, IT WAS DISCLOSED THAT GUARANTEE PROPOSED TO FURNISH A FOREIGN MADE PRODUCT FOR ITEM 9, FSN 5340- 568-9915, DOOR HOLDER; AFTER APPLICATION OF THE "BUY AMERICAN" DIFFERENTIAL, GSA DETERMINED THAT GUARANTEE WAS THE LOW BIDDER ON THAT ITEM.

WITH RESPECT TO GSA'S DETERMINATION THAT GUARANTEE LOCK COMPANY WAS A NONRESPONSIBLE BIDDER, WE QUOTE FROM THE ADMINISTRATIVE REPORT DATED MAY 8, 1970:

"BY MEMORANDUM DATED JANUARY 15, 1970 (ENCLOSURE 3), GUARANTEE ADVISED US THAT ITS INSPECTION AND SHIPPING POINT FOR ITEM 9 WOULD BE THE NUCLEI CORP; 1287 UTICA AVENUE, BROOKLYN, NEW YORK, AND THAT GUARANTEE WAS AT THAT TIME HOLDING 14,000 UNITS COMPLETELY MANUFACTURED AND READY FOR SHIPMENT AT THAT ADDRESS. WHEN THIS INFORMATION BECAME AVAILABLE, A REQUEST FOR A PLANT FACILITY REPORT COVERING THE NUCLEI CORP. WAS INITIATED. THE REPORT DATED FEBRUARY 11, 1970 (ENCLOSURE 4), WAS UNSATISFACTORY AND RECOMMENDS THAT GUARANTEE IS "INCAPABLE OF PERFORMING." THAT RECOMMENDATION WAS BASED UPON THE FACTS SET FORTH IN BLOCK 39 OF THE REPORT TO THE EFFECT THAT THE NUCLEI CORP. DOES NOT HAVE FACILITIES TO PROVIDE INSPECTION OR RECORD KEEPING SERVICES, DID NOT DESIRE TO ASSUME ANY RESPONSIBILITY IN CONNECTION WITH THE BID SUBMITTED BY GUARANTEE, AND DID NOT DESIRE TO BECOME INVOLVED IN THE MATTER.

"BECAUSE, HOWEVER, GUARANTEE IS A SMALL BUSINESS CONCERN, THE QUESTION AS TO WHETHER THE SMALL BUSINESS ADMINISTRATION (SBA) WOULD ISSUE A CERTIFICATE OF COMPETENCY (COC) TO GUARANTEE COVERING ITEM 9 WAS REFERRED TO SBA ON MARCH 19, 1970 (ENCLOSURE 5). BY LETTER DATED APRIL 7, 1970, SBA CONFIRMED INFORMATION PREVIOUSLY FURNISHED US ORALLY TO THE EFFECT THAT BECAUSE GUARANTEE WAS OFFERING FOREIGN MADE SUPPLIES FOR ITEM 9 THE COC REFERRAL WOULD NOT BE ACCEPTABLE AND NO FURTHER ACTION WOULD BE TAKEN WITH RESPECT TO THE MATTER (SEE ENCLOSURE 6).

"IN VIEW OF THE UNFAVORABLE PLANT FACILITY REPORT, AND THE DETERMINATION BY SBA THAT GUARANTEE WAS NOT ELIGIBLE FOR CONSIDERATION FOR A COC, THE CONTRACTING OFFICER DETERMINED THAT GUARANTEE DID NOT MEET THE STANDARDS SET FORTH IN SECTIONS 1-1.310-4 AND 1-1.310-5 OF THE FEDERAL PROCUREMENT REGULATIONS FOR A RESPONSIBLE BIDDER INSOFAR AS ITEM 9 IS CONCERNED."

OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF A BIDDER'S RESPONSIBILITY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION, AND WE WILL NOT QUESTION THIS ADMINISTRATIVE DETERMINATION UNLESS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE. COMP. GEN. 298 (1963). ON THE RECORD BEFORE US, WE FIND NO BASIS TO QUESTION THE CONTRACTING OFFICER'S DETERMINATION IN THIS CASE. ACCORDINGLY, YOUR PROTEST IS DENIED.