B-176403, SEP 29, 1972

B-176403, SEP 29, 1972

BID PROTEST - URGENT PROCUREMENT - CERTIFICATE OF COMPETENCY EXCEPTION DENIAL OF PROTEST BY M.S.I. SOURCE DATA COMPANY AGAINST THE AWARD OF A REQUIREMENTS TYPE CONTRACT TO ANY OTHER FIRM UNDER AN IFB ISSUED BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, FOR KEYPUNCH AND VERIFICATION SERVICES. IN VIEW OF THE URGENT NATURE OF THIS PROCUREMENT AND THE ADVERSE PREAWARD SURVEY REPORT ON PROTESTANT'S FACILITIES, THIS MATTER WAS CLEARLY WITHIN THE PROVISIONS OF FPR 1-1.708-2(A)(1) PERMITTING EXCEPTION TO THE SBA CERTIFICATE OF COMPETENCY PROCEDURES. ALTHOUGH THE RECORD DOES NOT INDICATE WHY THE REQUIRED CERTIFICATION WAS NOT APPROVED BY HIGHER AUTHORITY AT AN EARLIER DATE, IT DOES APPEAR THAT THE CONTRACTING OFFICER REACHED HIS DECISION PRIOR TO AWARD, AND THE REGULATIONS IMPOSE NO TIME LIMITATION AS TO WHEN THE HIGHER AUTHORITY MUST APPROVE THE CERTIFICATION. ACCORDINGLY, GAO MUST CONSIDER THE AWARD AS VALID AND BINDING. SEE COASTAL CARGO CO. V. UNITED STATES. 173 CT. CL. 259.

TO M.S.I. SOURCE DATA COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1972, WITH ENCLOSURE, PROTESTING AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS (IFB) H-3-73, ISSUED BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD).

IFB H-3-73 COVERED AN INDEFINITE QUANTITY REQUIREMENT FOR KEY PUNCH AND VERIFICATION SERVICE, PICK-UP AND DELIVERY SERVICE, AND FURNISHING SUPPLIES INCIDENTAL TO THE PERFORMANCE OF THESE SERVICES, FOR THE PERIOD JULY 1, 1972, OR THE FIRST WORK DAY AFTER AWARD, WHICHEVER MIGHT BE LATER, THROUGH JUNE 30, 1973. BIDS WERE OPENED AS SCHEDULED ON JUNE 28, 1972, AND YOUR FIRM WAS DETERMINED TO BE THE LOW BIDDER. A PREAWARD SURVEY OF YOUR FIRM WAS CONDUCTED AND IT WAS CONCLUDED THAT YOU HAD NO EQUIPMENT OR OPERATORS ON HAND AND THEREFORE DID NOT APPEAR CAPABLE OF MEETING THE CRITICAL TIME SCHEDULE REQUIRED BY THE CONTRACT. DURING THE SURVEY MR. ATWOOD, ONE OF THE PARTNERS IN YOUR FIRM, EXPLAINED THAT ALTHOUGH YOUR FIRM HAD NO EQUIPMENT ON HAND, IT HAD ACCESS TO SOME MACHINES AND HAD OTHERS ON ORDER. MR. ATWOOD WAS REQUESTED TO SUBMIT DOCUMENTATION BY JUNE 30 TO SUBSTANTIATE HIS STATEMENT, BUT HE FAILED TO DO SO. ON THE BASIS OF THE RESULTS OF THE PREAWARD SURVEY, YOUR FIRM WAS DETERMINED TO BE NONRESPONSIBLE AND THE NEXT LOW BIDDER, AUTOMATED DATATRON, INC., WAS AWARDED THE CONTRACT, AFTER A DETERMINATION OF THAT FIRM'S RESPONSIBILITY WAS MADE PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.310.

BY LETTER OF JUNE 29, 1972, YOU LODGED A PROTEST WITH THE PROCURING ACTIVITY AGAINST AWARD TO ANY OTHER FIRM UNDER IFB H-3-73, AND REQUESTED THAT CERTIFICATE OF COMPETENCY (COC) PROCEEDINGS BE INITIATED BY THAT ACTIVITY. BY LETTER OF THE SAME DATE, YOU PROTESTED TO THIS OFFICE.

IT IS THE POSITION OF THE PROCURING ACTIVITY THAT THE AWARD HAD TO BE MADE WITHOUT THE DELAY INDIDENT TO THE SUBMISSION OF THE MATTER TO SBA, AND A CERTIFICATION TO THIS EFFECT WAS PREPARED PURSUANT TO FPR 1-1.708 2(A)(1), WHICH PROVIDES THAT REFERRAL TO SBA UNDER COC PROCEDURES NEED NOT BE MADE WHERE AWARD MUST BE MADE WITHOUT DELAY. IT IS NOTED THAT WHILE THE CERTIFICATION IS DATED JUNE 27, 1972, WHICH IS NOT ONLY PRIOR TO AWARD BUT IS ALSO PRIOR TO BID OPENING, APPROVAL FROM HIGHER AUTHORITY WAS NOT OBTAINED UNTIL JULY 26, 1972, AFTER WHICH COPIES OF THE CERTIFICATION AND SUPPORTING DOCUMENTATION WERE SENT TO SBA IN ACCORDANCE WITH FPR 1-1.708- 2(A)(1).

THE RECORD INDICATES THAT HUD WAS UNDER A TIGHT TIME SCHEDULE, SINCE THE CONTRACTOR WAS EXPECTED TO MAKE HIS FIRST PICKUP OF GOVERNMENT FURNISHED PAYROLL DATA ON JULY 5, 1972. FOR THE PREVIOUS YEAR, THE SERVICES COVERED BY THIS PROCUREMENT HAD BEEN OBTAINED FROM THE GSA FEDERAL SUPPLY SCHEDULE, AND HUD'S FAILURE TO SOLICIT BIDS AT AN EARLIER DATE APPEARS TO BE ATTRIBUTABLE TO ITS ERRONEOUS BELIEF THAT IT COULD AGAIN OBTAIN THE SERVICES BY THAT METHOD. HUD HAS ADVISED THAT THEY ATTEMPTED TO OBTAIN THE SERVICES ON AN INTERIM BASIS IN ORDER TO ALLOW A LONGER TIME PERIOD BETWEEN BID OPENING AND AWARD. HOWEVER, THEY WERE UNSUCCESSFUL SINCE THE FIRMS CONTACTED SAID THAT IT TOOK TOO LONG TO FAMILIARIZE THEIR OPERATORS WITH THE INSTRUCTIONS AND THAT FOR A SHORT PERIOD OF TIME THE JOB WAS TOO UNPRODUCTIVE.

SINCE THERE DOES NOT APPEAR TO BE ANY QUESTION CONCERNING THE URGENCY OF THIS PROCUREMENT, AND IN VIEW OF THE ADVERSE PREAWARD SURVEY OF YOUR FACILITIES, THE MATTER WAS CLEARLY WITHIN THE PURVIEW OF THE PROVISIONS IN FPR 1-1.708-2(A)(1) PERMITTING EXCEPTION TO THE SBA COC PROCEDURES. WHILE THE RECORD GIVES NO SPECIFIC REASON WHY THE CERTIFICATION UNDER FPR 1- 1.708-2(A)(1) WAS NOT APPROVED BY HIGHER AUTHORITY AT AN EARLIER DATE, IT DOES APPEAR THAT THE CONTRACTING OFFICER DID REACH HIS DECISION PRIOR TO AWARD, AND THE REGULATIONS IMPOSE NO TIME LIMITATION ON WHEN HIGHER AUTHORITY APPROVES THE CERTIFICATION. UNDER THE CIRCUMSTANCES, WE FIND NO ADEQUATE BASIS FOR OBJECTION TO THE ACTION TAKEN BY THE CONTRACTING OFFICER IN REJECTING YOUR LOW BID AND IN MAKING THE AWARD TO AUTOMATED DATATRON, THE NEXT LOW RESPONSIVE, RESPONSIBLE BIDDER. SEE 46 COMP. GEN. 53 (1966). WHILE THE CONTRACTING OFFICER APPEARS TO HAVE BEEN REMISS IN FAILING TO ISSUE A COPY OF THE CERTIFICATION TO THE SBA REPRESENTATIVE SOONER, WE MUST REGARD THE AWARD AS VALID AND BINDING ON THE GOVERNMENT. SEE COASTAL CARGO CO., INC., V. UNITED STATES 173 CT. CL. 259.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.