B-174821, APR 21, 1972

B-174821: Apr 21, 1972

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IN VIEW OF THE CONSIDERABLE DEGREE OF DISCRETION VESTED IN THE PROCURING ACTIVITY WITH REGARD TO DETERMINATIONS OF BIDDER RESPONSIBILITY AND ABSENT ANY EVIDENCE TO INDICATE THAT THE AGENCY'S DECISION WAS ARBITRARY. SINCE THE AMOUNT IN QUESTION IS LESS THAN $2. THE CONTRACTING OFFICER WAS NOT REQUIRED TO REFER THE MATTER TO THE SMALL BUSINESS ADMINISTRATION. THE PROTEST IS DENIED. WAS ISSUED ON JULY 20. WERE RECEIVED ON ITEM NO. 3 OF THE IFB. THE FIRST 3 LOW BIDS WERE CONSIDERED NONRESPONSIVE TO ITEM NO. 3 WHILE YOUR FIRM WAS DETERMINED TO BE NONRESPONSIBLE. AWARD WAS MADE TO THE NEXT LOW BIDDER. AN EVALUATION OF YOUR PLANT FACILITIES WAS INITIATED IN ORDER TO ASSIST THE CONTRACTING OFFICER IN DETERMINING YOUR FIRM'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.1204-1 WHICH PROVIDES THAT CONTRACTS SHALL BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS.

B-174821, APR 21, 1972

BID PROTEST - NONRESPONSIBILITY - SBA REFERRAL DECISION DENYING PROTEST OF AIR & TOOL ENGINEERING COMPANY AGAINST AWARD OF A CONTRACT TO CHICAGO PNEUMATIC TOOL COMPANY UNDER AN IFB ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR THE PROCUREMENT OF PNEUMATIC TOOLS. IN VIEW OF THE CONSIDERABLE DEGREE OF DISCRETION VESTED IN THE PROCURING ACTIVITY WITH REGARD TO DETERMINATIONS OF BIDDER RESPONSIBILITY AND ABSENT ANY EVIDENCE TO INDICATE THAT THE AGENCY'S DECISION WAS ARBITRARY, CAPRICIOUS, OR UNSUPPORTED BY THE EVIDENCE, THERE EXISTS NO BASIS FOR OBJECTION BY GAO. 43 COMP. GEN. 257 (1963). FURTHER, SINCE THE AMOUNT IN QUESTION IS LESS THAN $2,500, THE CONTRACTING OFFICER WAS NOT REQUIRED TO REFER THE MATTER TO THE SMALL BUSINESS ADMINISTRATION. FOR THE FOREGOING REASONS, THE PROTEST IS DENIED.

TO AIR & TOOL ENGINEERING COMPANY:

WE REFER TO YOUR LETTER DATED DECEMBER 23, 1971, AND SUBSEQUENT CORRESPONDENCE PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER A SOLICITATION ISSUED BY THE GENERAL SERVICES ADMINISTRATION FOR THE PROCUREMENT OF PNEUMATIC TOOLS.

THE IFB, ORIGINALLY IDENTIFIED AS NO. FPNTP-B6-37807-A-8-19-71, WAS ISSUED ON JULY 20, 1971. ON SEPTEMBER 22, 1971, 5 BIDS, INCLUDING THAT OF YOUR FIRM, WERE RECEIVED ON ITEM NO. 3 OF THE IFB, FOR A PNEUMATIC IMPACT WRENCH. THE FIRST 3 LOW BIDS WERE CONSIDERED NONRESPONSIVE TO ITEM NO. 3 WHILE YOUR FIRM WAS DETERMINED TO BE NONRESPONSIBLE. AWARD WAS MADE TO THE NEXT LOW BIDDER, CHICAGO PNEUMATIC TOOL COMPANY ON DECEMBER 2, 1971.

YOU PROTEST THE DETERMINATION OF NONRESPONSIBILITY CONTENDING THAT YOUR FIRM DOES, IN FACT, POSSESS THE REQUISITE EXPERIENCE, TECHNICAL QUALIFICATIONS AND FACILITIES TO ASSEMBLE AND TEST THE WRENCH CALLED FOR BY THE IFB.

AN EVALUATION OF YOUR PLANT FACILITIES WAS INITIATED IN ORDER TO ASSIST THE CONTRACTING OFFICER IN DETERMINING YOUR FIRM'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.1204-1 WHICH PROVIDES THAT CONTRACTS SHALL BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. THE EVALUATION RESULTED IN A RECOMMENDATION THAT YOUR FIRM IS NOT CAPABLE OF PERFORMING THE SUBJECT CONTRACT BECAUSE OF LACK OF SPECIAL TOOLING EQUIPMENT, QUALITY CONTROL SYSTEM, INSPECTION AND TESTING FACILITIES.

WE HAVE RECOGNIZED THAT THE CONTRACTING AGENCY HAS THE DUTY OF DECIDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. IN MAKING THIS DETERMINATION THE AGENCY IS VESTED WITH A CONSIDERABLE DEGREE OF DISCRETION. THEREFORE, WE WILL NOT QUESTION SUCH A DETERMINATION UNLESS IT IS SHOWN TO BE ARBITRARY, CAPRICIOUS OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. SEE 45 COMP. GEN. 4 (1965); 43 ID. 257 (1963).

IN THIS CASE WE FIND THAT THE CONTRACTING AGENCY'S DETERMINATION THAT YOUR FIRM DOES NOT POSSESS THE NECESSARY EXPERIENCE, TECHNICAL QUALIFICATIONS AND FACILITIES WAS BASED ON SUBSTANTIAL EVIDENCE AND THEREFORE DOES NOT CONSTITUTE AN ABUSE OF ADMINISTRATIVE DISCRETION. THE MATTER WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION UNDER THE CERTIFICATE OF COMPETENCY PROCEDURE SINCE THE AMOUNT INVOLVED IS UNDER $2,500.

ACCORDINGLY, WE MUST DENY YOUR PROTEST.