B-169582, JUN. 19, 1970

B-169582: Jun 19, 1970

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DETERMINATION OF PROTESTANT'S NONRESPONSIBLITY WAS JUSTIFIED SINCE DETERMINATION OF ABILITY OF BIDDERS TO PERFORM IS PRIMARILY RESPONSIBILITY OF CONTRACTING OFFICER. WHOSE FINDINGS WILL NOT BE QUESTIONED IN ABSENCE OF BAD FAITH OR LACK OF REASONABLE BASIS. TO UMC ELECTRONICS CO.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 15. THE INVITATION WAS ISSUED ON SEPTEMBER 10. THREE BIDS WERE TIMELY RECEIVED AND OPENED AS FOLLOWS: BIDDER UNIT PRICE BARON INDUSTRIES. 000.00 A PREAWARD SURVEY WAS CONDUCTED OF THE CAPABILITIES OF YOUR FIRM AS LOW BIDDER. A COMPLETE SURVEY REPORT WAS RECEIVED BY THE CONTRACTING OFFICER FROM THE HARTFORD DEFENSE CONTRACT ADMINISTRATIVE SERVICES DIVISION IN JANUARY 1970.

B-169582, JUN. 19, 1970

BIDDERS--QUALIFICATIONS--PREAWARD SURVEYS--FACILITY CAPABILITY REPORT NEGATIVE WHERE PREAWARD SURVEY SHOWED LOW BIDDER LACKED EFFECTIVE CONTROLS THAT WOULD AFFECT DELIVERY REQUIREMENT, AND SMALL BUSINESS ADMINISTRATION DECLINED TO ISSUE CERTIFICATE OF COMPETENCY, DETERMINATION OF PROTESTANT'S NONRESPONSIBLITY WAS JUSTIFIED SINCE DETERMINATION OF ABILITY OF BIDDERS TO PERFORM IS PRIMARILY RESPONSIBILITY OF CONTRACTING OFFICER, WHOSE FINDINGS WILL NOT BE QUESTIONED IN ABSENCE OF BAD FAITH OR LACK OF REASONABLE BASIS. MOREOVER, SBA'S DECLINATION TO ISSUE CERTIFICATE OF COMPETENCY SUPPORTS NONRESPONSIBILITY FINDING, AND 10 U.S.C. 2305(C) REQUIRES AWARDS TO BE MADE TO "RESPONSIBLE" BIDDERS. SEE COMP. GEN. DECS. CITED.

TO UMC ELECTRONICS CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 15, 1970, WITH ATTACHMENTS, PROTESTING THE AWARD OF A CONTRACT TO SUN ELECTRIC CORPORATION UNDER INVITATION FOR BIDS NO. F41608-70-B-0317, ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

THE INVITATION WAS ISSUED ON SEPTEMBER 10, 1969, FOR 22 ELECTRICAL POWER GENERATOR MOBILE TEST SETS IN ACCORDANCE WITH MILITARY SPECIFICATION MIL-T -26922CUSAF) DATED JUNE 1963, AMENDMENT NO. 1 DATED APRIL 30, 1964, AND AIR FORCE DRAWING 55C6182. THREE BIDS WERE TIMELY RECEIVED AND OPENED AS FOLLOWS:

BIDDER UNIT PRICE

BARON INDUSTRIES, INC. $14,842.86

SUN ELECTRIC CORPORATION 10,482.25 UMC ELECTRONICS CO. 10,000.00

A PREAWARD SURVEY WAS CONDUCTED OF THE CAPABILITIES OF YOUR FIRM AS LOW BIDDER. A COMPLETE SURVEY REPORT WAS RECEIVED BY THE CONTRACTING OFFICER FROM THE HARTFORD DEFENSE CONTRACT ADMINISTRATIVE SERVICES DIVISION IN JANUARY 1970. THE REPORT RECOMMENDED THAT NO AWARD BE MADE TO YOUR FIRM BECAUSE UMC LACKED EFFECTIVE PRODUCTION AND MATERIAL CONTROLS WHICH WOULD AFFECT YOUR PERFORMANCE RECORD AND ABILITY TO MEET THE ADVERTISED DELIVERY REQUIREMENTS.

ON FEBRUARY 11, 1970, THE PROCUREMENT ACTIVITY REQUESTED THE SMALL BUSINESS ADMINISTRATION (SBA) TO CONSIDER WHETHER A CERTIFICATE OF COMPETENCY (COC) SHOULD BE ISSUED TO UMC. ON MARCH 9, 1970, SBA ADVISED THE PROCUREMENT ACTIVITY THAT:

"BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION, THIS ADMINISTRATION HAS DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY IN THIS INSTANCE."

ACCORDINGLY, THE CONTRACTING OFFICER MADE AWARD TO SUN ELECTRIC CORPORATION ON APRIL 7, 1970, AS THE LOWEST RESPONSIBLE, RESPONSIVE BIDDER. THE CONTRACTING OFFICER DID NOT CONSIDER SUSPENDING THE AWARD TO SUN ELECTRIC CORPORATION PENDING RESOLUTION OF YOUR PROTEST SINCE SUCH ACTION WOULD HAVE SERIOUSLY AFFECTED THE URGENCY OF THE PROCUREMENT. VIEW OF THE INCREASING URGENCY FOR THE EQUIPMENT AND THE FACT THAT YOU WERE DETERMINED TO BE A NONRESPONSIBLE BIDDER, THE AWARD TO SUN IS NOT SUBJECT TO QUESTION ON THE RECORD BEFORE US.

THE ABILITY OF A PROSPECTIVE CONTRACTOR TO PERFORM IS FOR DETERMINATION PRIMARILY BY THE CONTRACTING AGENCY AND ABSENT A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR, WE WILL NOT QUESTION THE VALIDITY OF THE DETERMINATION. 37 COMP. GEN. 430 (1957). SEE 38 COMP. GEN. 248 (1958); ID. 131, 133 (1958); ID. 778 (1959). IN 43 COMP. GEN. 228, 230 (1963), WE STATED:

" *** DECIDING A PROSPECTIVE CONTRACTOR'S PROBABLE ABILITY TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH MUST OF NECESSITY BE A MATTER OF JUDGMENT. SUCH JUDGMENT SHOULD OF COURSE BE BASED ON FACT AND REACHED IN GOOD FAITH; HOWEVER, IT IS ONLY PROPER THAT IT BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED WHO SHOULD BE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, WHO MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED IN OBTAINING REQUIRED PERFORMANCE, AND WHO MUST MAINTAIN DAY TO DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF. *** "

IN VIEW OF THE FOREGOING, WE FIND NO BASIS TO DISTURB THE DETERMINATION OF NONRESPONSIBILITY. SBA'S DECLINATION TO ISSUE A COC TO UMC IN SIGNIFICANT RESPECTS SUPPORTS THE DETERMINATION OF NONRESPONSIBILITY. MOREOVER, THE MILITARY PROCUREMENT STATUTE AT 10 U.S.C. 2305(C) REQUIRES THAT AWARDS BE MADE TO "RESPONSIBLE" BIDDERS. HENCE, NO AUTHORITY EXISTED, IN THE FACE OF THAT DETERMINATION, TO FAVORABLY CONSIDER YOUR BID FOR AWARD. RESPECTING YOUR CONTENTION THAT THE ADVERTISED DELIVERY SCHEDULE WAS UNREALISTIC WHICH NO BIDDER COULD MEET, THE RECORD DEMONSTRATES THAT NO BIDDER, OTHER THAN UMC, QUESTIONED THE SCHEDULE; THAT SUN ELECTRIC HAS THE CAPABILITY TO MEET THE SCHEDULE; AND THAT THE SUPPLY STATUS OF THE ITEM WOULD NOT PERMIT A LONGER DELIVERY TIME.