B-175129, AUG 22, 1972

B-175129: Aug 22, 1972

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WHILE IT WAS UNFORTUNATE THAT UNITED WAS DENIED AN SBA REVIEW OF THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY UNDER ITS COC PROCEDURES. UNITED'S BID WAS REJECTED BECAUSE THE CONTRACTING OFFICER DETERMINED. THAT UNITED WAS NOT A RESPONSIBLE BIDDER FOR THE PURPOSE OF THE PROCUREMENT BECAUSE ITS PAST PERFORMANCE INDICATED AN INABILITY TO SATISFACTORILY MEET THE REQUIRED DELIVERY SCHEDULE AND QUALITY ASSURANCES. OR UNTIL 15 WORKING DAYS AFTER THE SBA IS SO NOTIFIED. WHICHEVER IS EARLIER. WHILE IT WAS UNFORTUNATE THAT UNITED WAS DENIED AN SBA REVIEW OF THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY UNDER ITS COC PROCEDURES. WE UNDERSTAND THAT SBA HAS SINCE CHANGED ITS POSITION AND WILL NOW CONSIDER COC APPLICATIONS CONCERNING UNITED FOR OTHER PROCUREMENTS.

B-175129, AUG 22, 1972

BID PROTEST - TENACITY APPEALS - SBA DENIAL OF PROTEST ON BEHALF OF UNITED ELECTRONICS COMPANY AGAINST THE REJECTION OF ITS LOW BID UNDER AN IFB ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO. WHILE IT WAS UNFORTUNATE THAT UNITED WAS DENIED AN SBA REVIEW OF THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY UNDER ITS COC PROCEDURES, THE CONTRACTING OFFICER ACTED IN ACCORDANCE WITH ASPR 1 705.4(C) WHEN HE MADE THE AWARD TO FAIRCHILD CAMERA AND INSTRUMENT CORPORATION AFTER THE EXPIRATION OF THE 15-DAY WAITING PERIOD. UNDER THESE CIRCUMSTANCES, NO BASIS EXISTS TO QUESTION THE AWARD.

TO WITTE & WITTE:

WE REFER TO YOUR LETTER DATED MAY 26, 1972, AS COUNSEL TO UNITED ELECTRONICS COMPANY (UNITED), PROTESTING THE REJECTION OF ITS LOW BID UNDER INVITATION FOR BIDS DSA900-72-B-1319, ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER, DAYTON, OHIO.

UNITED'S BID WAS REJECTED BECAUSE THE CONTRACTING OFFICER DETERMINED, BASED UPON A NEGATIVE PREAWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, SPRINGFIELD, NEW JERSEY, THAT UNITED WAS NOT A RESPONSIBLE BIDDER FOR THE PURPOSE OF THE PROCUREMENT BECAUSE ITS PAST PERFORMANCE INDICATED AN INABILITY TO SATISFACTORILY MEET THE REQUIRED DELIVERY SCHEDULE AND QUALITY ASSURANCES. THE CONTRACTING OFFICER REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) REGIONAL OFFICE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION 1 705.4(C) AND SBA SUBSEQUENTLY ADVISED THE CONTRACTING AGENCY THAT IT WOULD NOT ACCEPT TENACITY AND PERSEVERANCE APPEALS OR CERTIFICATE OF COMPETENCY (COC) APPLICATIONS ON UNITED. THE ABOVE-CITED SUBSECTION PROVIDES IN PART:

"THE AWARD SHALL BE WITHHELD UNTIL SBA ACTION CONCERNING ISSUANCE OF A COC, OR UNTIL 15 WORKING DAYS AFTER THE SBA IS SO NOTIFIED, WHICHEVER IS EARLIER, ***."

ON JANUARY 26, 1972, THE 15-DAY WAITING PERIOD HAVING ELAPSED WITHOUT FURTHER ACTION BY SBA, THE CONTRACTING OFFICER AWARDED THE CONTRACT TO THE FAIRCHILD CAMERA AND INSTRUMENT CORPORATION, DUMONT ELECTRON TUBE DIVISION. THEREAFTER, YOU PROTESTED THE REJECTION OF YOUR BID TO OUR OFFICE.

WHILE IT WAS UNFORTUNATE THAT UNITED WAS DENIED AN SBA REVIEW OF THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY UNDER ITS COC PROCEDURES, THE CONTRACTING OFFICER ACTED IN ACCORDANCE WITH ASPR 1 705.4(C) WHEN HE MADE THE AWARD TO FAIRCHILD CAMERA AFTER THE EXPIRATION OF THE 15-DAY WAITING PERIOD. UNDER THESE CIRCUMSTANCES, NO BASIS EXISTS FOR OUR OFFICE TO QUESTION THE AWARD. HOWEVER, WE UNDERSTAND THAT SBA HAS SINCE CHANGED ITS POSITION AND WILL NOW CONSIDER COC APPLICATIONS CONCERNING UNITED FOR OTHER PROCUREMENTS.

ACCORDINGLY, THE PROTEST IS DENIED.