B-170099, JAN 22, 1971

B-170099: Jan 22, 1971

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NOT SUBMITTING THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY (HAD IT BEEN MADE) TO THE SMALL BUSINESS ADMINISTRATION FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY WOULD HAVE BEEN CONTRARY TO PROCUREMENT POLICY. CONTRACTING OFFICER'S DETERMINATION THAT PACE WAS NONRESPONSIVE WHILE CITING SECTION 1 - 1.310-5(A) OF THE FPR DEALING WITH RESPONSIBILITY WAS INCONSISTENT. THE EXPERIENCE REQUIREMENT WAS ONE THAT WENT TO THE QUESTION OF PACE'S RESPONSIBILITY AND SHOULD HAVE BEEN SUBMITTED TO THE SBA FOR CONSIDERATION SINCE PACE WAS A SMALL BUSINESS CONCERN. WOULD HAVE BEEN BINDING ON PROCUREMENT OFFICERS AND COULD NOT BE DEFEATED BY THE INCLUSION OF EXPERIENCE QUALIFICATIONS IN AN INVITATION.

B-170099, JAN 22, 1971

BID PROTEST - BIDDER RESPONSIBILITY - SMALL BUSINESS SET-ASIDE IN CONNECTION WITH THE PROTEST OF PACE INDUSTRIES, INC., AGAINST THE AWARD TO ANOTHER BIDDER OF AN ADVERTISED CONTRACT FOR GUARD SERVICES AT THE FAA OFFICE/HANGER COMPLEX IN LOS ANGELES, CALIF., ISSUED BY THE FAA, NOT SUBMITTING THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY (HAD IT BEEN MADE) TO THE SMALL BUSINESS ADMINISTRATION FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY WOULD HAVE BEEN CONTRARY TO PROCUREMENT POLICY. CONTRACTING OFFICER'S DETERMINATION THAT PACE WAS NONRESPONSIVE WHILE CITING SECTION 1 - 1.310-5(A) OF THE FPR DEALING WITH RESPONSIBILITY WAS INCONSISTENT; THE INCLUSION OF QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN AN INVITATION FOR BIDS DOES NOT TRANSFORM THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION. THE EXPERIENCE REQUIREMENT WAS ONE THAT WENT TO THE QUESTION OF PACE'S RESPONSIBILITY AND SHOULD HAVE BEEN SUBMITTED TO THE SBA FOR CONSIDERATION SINCE PACE WAS A SMALL BUSINESS CONCERN. THE SBA'S DECISION WITH RESPECT TO THE COMPETENCY, AS TO CAPACITY AND CREDIT, WOULD HAVE BEEN BINDING ON PROCUREMENT OFFICERS AND COULD NOT BE DEFEATED BY THE INCLUSION OF EXPERIENCE QUALIFICATIONS IN AN INVITATION.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF OCTOBER 29, 1970, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION, FURNISHING A REPORT REQUESTED BY OUR LETTER OF JUNE 26, 1970, RELATIVE TO THE PROTEST BY PACE INDUSTRIES, INC., AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. WE00-0-0273, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION (FAA), LOS ANGELES, CALIFORNIA.

THE SUBJECT INVITATION, ISSUED ON MARCH 3, 1970, SOLICITED BIDS - TO BE OPENED APRIL 7, 1970 - FOR THE FURNISHING OF GUARD SERVICES AT THE FAA OFFICE/HANGAR COMPLEX IN LOS ANGELES, CALIFORNIA. THE INVITATION, UNDER PARAGRAPH 25 OF THE "ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS (SUPPLEMENTING SF 33A)," PROVIDED AS FOLLOWS:

"25. BIDDERS QUALIFICATIONS. IN ORDER FOR A CONCERN TO BE CONSIDERED A RESPONSIBLE BIDDER, IT MUST HAVE BEEN ESTABLISHED AND PERFORMING THE REQUIRED TYPE OF SERVICES FOR AT LEAST ONE YEAR." IN ADDITION, THE PROCUREMENT WAS A 100-PERCENT SET-ASIDE FOR SMALL BUSINESS CONCERNS.

THE RECORD SUBMITTED HERE SHOWS THAT WHILE PACE'S BID WAS THE LOWEST RECEIVED, THE CONTRACTING OFFICER MADE THE FOLLOWING DETERMINATION:

"1. PACE INDUSTRIES DID NOT MEET THE REQUIREMENTS OF THE INVITATION FOR BIDS SINCE THEY HAD NOT PERFORMED THE REQUIRED TYPE OF SERVICE FOR ONE YEAR.

"2. BASED ON THE ABOVE FINDINGS AND REVIEW OF THE FILES, IT WAS FURTHER DETERMINED THAT (1) EXPERIENCE IN 'INDUSTRIAL SECURITY' WAS NON QUALIFYING AND THEREFORE THE MANAGEMENT OF PACE INDUSTRIES DID NOT HAVE THE REQUIRED EXPERIENCE IN GUARD SERVICE PRIOR EMPLOYMENT WITH PACE INDUSTRIES, NOR (2) DID THE COMPANY ITSELF HAVE THE NECESSARY EXPERIENCE TO DEMONSTRATE ABILITY TO PERFORM THE GUARD SERVICE." THEREUPON, BY LETTER DATED MAY 28, 1970, THE CONTRACTING OFFICER NOTIFIED PACE THAT ITS BID SUBMITTED IN RESPONSE TO THE IFB WAS CONSIDERED "NON-RESPONSIVE" AND MIGHT NOT BE CONSIDERED FOR AWARD SINCE INVESTIGATION HAD REVEALED THAT PACE HAD NOT PREVIOUSLY DONE SECURITY GUARD SERVICE AS REQUIRED BY PARAGRAPH 25 OF THE ADDITIONAL SOLICITATION INSTRUCTIONS AND CONDITIONS.

THE RECORD SUBMITTED HERE SHOWS THAT NOTICE OF AWARD WAS SENT TO POST PATROL AGENCY, INC., ON JUNE 7, 1970, AND THE STATEMENT AND CERTIFICATE OF AWARD TO POST STATES THAT:

"PACE INDUSTRIES BID REJECTED UNDER FPR 1-1.310-5(A)., AS A NON RESPONSIVE CONTRACTOR." AT THIS POINT WE NOTE AN OBVIOUS INCONSISTENCY ON THE PART OF THE CONTRACTING OFFICER IN REJECTING PACE'S BID AS BEING NONRESPONSIVE WHILE CITING SECTION 1-1.310-5(A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) WHICH COVERS STANDARDS FOR A PROSPECTIVE CONTRACTOR TO QUALIFY AS RESPONSIBLE.

IT IS OUR VIEW THAT THE 1-YEAR EXPERIENCE REQUIREMENT IN PARAGRAPH 25 RELATES TO A BIDDER'S RESPONSIBILITY. SEE 37 COMP. GEN. 420 (1957); 45 ID. 4 (1965); AND B-170179, AUGUST 26, 1970. IN THIS RESPECT, WE HAVE HELD THAT THE INCLUSION OF QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN AN INVITATION FOR BIDS CANNOT BE CONSIDERED AS TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION. 39 COMP. GEN. 173 (1959). OTHER WORDS, THE EXPERIENCE REQUIREMENT IN PARAGRAPH 25 OF THIS SOLICITATION WENT TO PACE'S RESPONSIBILITY, RATHER THAN TO THE RESPONSIVENESS OF PACE'S BID.

IN DETERMINING WHETHER A PROSPECTIVE CONTRACTOR IS CAPABLE OF PERFORMING REQUIRED SERVICES, CONTRACTING OFFICERS ARE GUIDED BY THE RULES SET OUT IN THE FPR. IN THIS REGARD, FPR SEC. 1-1.310-4 PROVIDES THAT CONTRACTS BE AWARDED ONLY TO "RESPONSIBLE PROSPECTIVE CONTRACTORS" AND 1-1.310-6 REQUIRES AN AFFIRMATIVE DETERMINATION OF THE RESPONSIBILITY AS A PREREQUISITE TO AWARD. THE FPR ALSO PRESCRIBES CERTAIN MINIMUM STANDARDS FOR "RESPONSIBLE PROSPECTIVE CONTRACTORS"; SECTION 1-1.310-5 REQUIRES, IN PART, THE NECESSARY EXPERIENCE, ORGANIZATION, TECHNICAL QUALIFICATIONS AND SKILLS, OR THE ABILITY TO OBTAIN THEM.

THE FOREGOING BRINGS US TO AN ISSUE THAT HAS NOT BEEN RAISED BY THE PROTESTANT OR THE ADMINISTRATIVE REPORT IN THIS CASE. SINCE PACE, THE LOW BIDDER, IS A SMALL BUSINESS CONCERN, IT WAS REQUIRED THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY (HAD IT BEEN MADE) BE SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR THE POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). SEE FPR SEC. 1 1.708, ET SEQ. UNDER THE PROVISIONS OF SECTION 8(B)(7) OF THE SMALL BUSINESS ACT, AS AMENDED BY PUBLIC LAW 85-536, 15 U.S.C. 637(B)(7), THE ISSUANCE OF A COC BY SBA IS CONCLUSIVE UPON GOVERNMENT PROCUREMENT OFFICERS WITH RESPECT TO THE COMPETENCY, AS TO CAPACITY AND CREDIT, OF ANY SMALL BUSINESS CONCERN TO PERFORM A GOVERNMENT CONTRACT. THE TERM "CAPACITY AND CREDIT" HAS BEEN DEFINED AS THE OVERALL ABILITY OF THE BIDDER TO MEET QUALITY, QUANTITY, AND TIME REQUIREMENTS OF THE PROCUREMENT, INCLUDING ABILITY TO PERFORM, ORGANIZATION, TECHNICAL EXPERIENCE, KNOWLEDGE, SKILLS, "KNOW-HOW," TECHNICAL EQUIPMENT, AND FACILITIES. 38 COMP. GEN. 864 (1959). IN THIS RESPECT, OUR OFFICE HAS HELD THAT THE INCLUSION OF EXPERIENCE QUALIFICATIONS IN AN INVITATION CANNOT DEFEAT THE STATUTORY AUTHORITY VESTED IN THE SBA TO MAKE DETERMINATIONS OF CAPACITY AND CREDIT. 40 COMP. GEN. 106 (1960).

IN VIEW OF THE EXTENT OF PERFORMANCE UNDER THE CONTRACT AND THE INFORMAL REPRESENTATIONS MADE BY FAA OFFICIALS THAT CORRECTIVE ACTION AT THIS TIME WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT, WE WILL NOT DISTURB THE AWARD. IN THAT CONNECTION, WE REQUESTED AN ADMINISTRATIVE REPORT ON THIS RELATIVELY SIMPLE MATTER ON JUNE 26, 1970, BUT THE REQUESTED REPORT WAS NOT SUBMITTED HERE UNTIL OCTOBER 29, 1970. WE RECOMMEND THAT APPROPRIATE ACTION BE TAKEN TO PRECLUDE A RECURRENCE OF SUCH A DELAY IN REPORTING ON FUTURE PROTESTS.