B-175147, JUL 25, 1972

B-175147, JUL 25, 1972

BID PROTEST - BIDDER RESPONSIBILITY - TENACITY AND PERSEVERANCE APPEALS TO SBA DENYING PROTEST OF ELECTRONIC ENTERPRISES, INC., LOW BIDDER, AGAINST REJECTION OF ITS BID UNDER AN IFB ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER (DESC), DAYTON, OHIO. THE BID WAS REJECTED ON A FINDING BY THE PROCURING AGENCY THAT BIDDER LACKED TENACITY AND PERSEVERANCE. DESC REFERRED THE MATTER TO THE SBA REGIONAL OFFICE PURSUANT TO ASPR 1-705.4(C)(VI) WHICH ADVISED THE FORMER THAT IT WOULD NOT ACCEPT TENACITY APPEALS NOR CERTIFICATES OF COMPETENCY (COC) APPLICATIONS FROM PROTESTANT. WHILE IT IS UNFORTUNATE THAT THE PROVIDED PROCEDURES FOR REVIEW WERE DENIED, NO CORRECTIVE ACTION IS POSSIBLE BECAUSE OF THE ADVANCE STATE OF THE PROCUREMENT. THE SBA WILL, HOWEVER, IN THE FUTURE CONSIDER TENACITY AND PERSEVERANCE AND COC REFERRALS CONCERNING PROTESTANT.

TO ELECTRONIC ENTERPRISES, INC.:

WE REFER TO YOUR LETTER OF JUNE 9, 1972, AND PRIOR CORRESPONDENCE, PROTESTING THE REJECTION OF YOUR LOW BID UNDER INVITATION FOR BIDS (IFB) DSA900-72-B-1218, ISSUED BY THE DEFENSE ELECTRONICS SUPPLY CENTER (DESC), DAYTON, OHIO.

YOUR BID WAS REJECTED BECAUSE THE CONTRACTING OFFICER DETERMINED THAT SINCE YOUR COMPANY LACKED TENACITY AND PERSEVERANCE, IT WAS NOT A RESPONSIBLE CONTRACTOR. THE CONTRACTING AGENCY REFERRED THE MATTER TO THE SMALL BUSINESS ADMINSTRATION (SBA) REGIONAL OFFICE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4(C)(VI) AND THE LATTER OFFICE ADVISED THE CONTRACTING AGENCY THAT IT WOULD NOT ACCEPT ANY TENACITY AND PERSEVERANCE APPEALS OR CERTIFICATE OF COMPETENCY (COC) APPLICATIONS ON YOUR FIRM. THE ABOVE-CITED SUBSECTION PROVIDES:

"*** IF THE CONTRACTING OFFICER DOES NOT RECEIVE NOTIFICATION WITHIN FIVE WORKING DAYS *** THAT THE SBA INTENDS TO APPEAL, IT SHALL BE DEEMED THAT THE SBA DOES NOT INTEND TO FILE SUCH AN APPEAL. ***"

ON JANUARY 21, 1972, THE FIVE-DAY APPEAL PERIOD HAVING ELAPSED, THE CONTRACTING OFFICER AWARDED THE CONTRACT TO THE NEXT LOW BIDDER. YOU THEREAFTER PROTESTED THE REJECTION OF YOUR BID TO OUR OFFICE.

WE HAVE REVIEWED THE CONTRACTING OFFICER'S DECISION AND WHILE WE MIGHT NOT COME TO THE SAME CONCLUSION THAT YOUR FIRM LACKED TENACITY AND PERSEVERANCE, WE BELIEVE THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS ALSO BASED UPON ADVERSE MATTERS OF CAPACITY AND CREDIT THAT COME WITHIN THE COC PROCEDURE. THE FACT REMAINS, HOWEVER, THAT THE SBA REGIONAL OFFICE HAD REFUSED TO CONSIDER YOUR RESPONSIBILITY ON EITHER BASIS MENTIONED ABOVE. WHILE IT IS UNFORTUNATE THAT YOU WERE DENIED THE PROCEDURES PROVIDED FOR REVIEW OF YOUR NONRESPONSIBILITY DETERMINATION AS TO THIS PROCUREMENT, IT IS OUR UNDERSTANDING THAT SBA HAS SINCE CHANGED ITS POSITION AND WILL CONSIDER NONRESPONSIBILITY REFERRALS CONCERNING YOUR FIRM FROM THE PROCUREMENT AGENCY UNDER THE PROCEDURES PRESCRIBED BY ASPR.

IN VIEW OF THE ADVANCED STATE OF THIS PROCUREMENT - THE CONTRACT HAVING CALLED FOR COMPLETE DELIVERY WITHIN 150 DAYS AFTER AWARD - NO CORRECTIVE ACTION IS POSSIBLE AT THIS TIME. WE NOTE WITH APPROVAL THAT SBA WILL CONSIDER TENACITY AND PERSEVERANCE AND COC REFERRALS REGARDING YOUR FIRM IN FUTURE PROCUREMENTS.