B-176588(3), FEB 5, 1973

B-176588(3): Feb 5, 1973

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REFUSAL OF THE SBA TO ISSUE A CERTIFICATE OF COMPETENCY IS A CONFIRMATION OF A NONRESPONSIBILITY DETERMINATION. THE DELAY IN MAKING AWARD WAS UNAVOIDABLE AND THEREFORE GAO HAS NO LEGAL BASIS TO OBJECT TO SUCH DELAYS. THERE IS NOTHING IMPROPER IN NASA'S DENIAL TO A BIDDER OF ACCESS TO THE CONTRACT SITE SO THE BIDDER COULD INTERVIEW INCUMBENT EMPLOYEES DURING WORKING HOURS. THE INVITATION WAS ISSUED ON MAY 8. TEN BIDS WERE RECEIVED AND OPENED ON MAY 19. YOUR FIRM'S BID WAS DETERMINED TO BE LOW AT $3. PREAWARD SURVEY WAS THEN PERFORMED. THAT YOUR FIRM IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THE FOLLOWING REASONS: "1. ADVISED YOU THAT IT WAS UNABLE TO OBTAIN EVIDENCE THAT YOU HAD THE NECESSARY EXPERIENCE IN OPERATING LARGE CUSTODIAL CONTRACTS AND.

B-176588(3), FEB 5, 1973

BID PROTEST - RESPONSIBILITY - AWARD DELAY - DENIAL OF ACCESS TO CONTRACT SITE DECISION DENYING THE PROTEST OF C. G. ASHE CONCERNING CLAIMED IRREGULARITIES IN CONNECTION WITH AN IFB ISSUED BY NASA FOR CUSTODIAL SERVICES AT LANGLEY RESEARCH CENTER, VA. REFUSAL OF THE SBA TO ISSUE A CERTIFICATE OF COMPETENCY IS A CONFIRMATION OF A NONRESPONSIBILITY DETERMINATION. B-175343, MAY 12, 1972. ALSO, UNDER THE CIRCUMSTANCES OF THIS CASE, THE DELAY IN MAKING AWARD WAS UNAVOIDABLE AND THEREFORE GAO HAS NO LEGAL BASIS TO OBJECT TO SUCH DELAYS. MOREOVER, THERE IS NOTHING IMPROPER IN NASA'S DENIAL TO A BIDDER OF ACCESS TO THE CONTRACT SITE SO THE BIDDER COULD INTERVIEW INCUMBENT EMPLOYEES DURING WORKING HOURS. FINALLY, NASA PROCUREMENT REGULATION 1.703 PROVIDES THAT A PROTEST QUESTIONING THE STATUS OF A BIDDER MUST BE RECEIVED BY THE CONTRACTING OFFICER WITHIN 5 WORKING DAYS AFTER BID OPENING.

TO C. G. ASHE:

WE REFER TO YOUR LETTER DATED SEPTEMBER 25, 1972, CONCERNING CLAIMED IRREGULARITIES IN CONNECTION WITH INVITATION FOR BIDS NO. 1-52-2777A, ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA).

THE INVITATION WAS ISSUED ON MAY 8, 1972, FOR THE PROCUREMENT OF CLEANING AND CUSTODIAL SERVICES FOR NASA AND AIR FORCE FACILITIES LOCATED AT THE LANGLEY RESEARCH CENTER (LARC). TEN BIDS WERE RECEIVED AND OPENED ON MAY 19, 1972. YOUR FIRM'S BID WAS DETERMINED TO BE LOW AT $3,252,539.22. PREAWARD SURVEY WAS THEN PERFORMED. AS A RESULT OF THE SURVEY THE CONTRACTING OFFICER CONCLUDED IN A DETERMINATION OF NONRESPONSIBILITY DATED JUNE 2, 1972, PURSUANT TO NASA PROCUREMENT REGULATION (NASA PR) 1.904, THAT YOUR FIRM IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THE FOLLOWING REASONS:

"1. THE BIDDER HAD PREVIOUSLY PERFORMED ONLY ONE CUSTODIAL CONTRACT APPROXIMATING LESS THAN ONE MAN-YEAR OF EFFORT VALUED AT $4200;

2. THE PROPOSED MANAGER POSSESSED NEITHER THE EXPERIENCE NOR THE BACKGROUND TO ORGANIZE AND MANAGE AN EFFORT OF THE SIZE AND MAGNITUDE OF THE PROPOSED CONTRACT; AND

3. THE BIDDER FAILED TO PROVIDE ANY DETAILED MANAGEMENT PLAN AS REQUESTED, NOR HAS IT PROVIDED EVIDENCE ON HOW IT INTENDED TO PROVIDE THE MANPOWER TO PERFORM."

THE RECORD INDICATES THAT YOUR FIRM THEN APPLIED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR A CERTIFICATE OF COMPETENCY (COC). THE SBA, BY LETTER DATED JUNE 28, 1972, ADVISED YOU THAT IT WAS UNABLE TO OBTAIN EVIDENCE THAT YOU HAD THE NECESSARY EXPERIENCE IN OPERATING LARGE CUSTODIAL CONTRACTS AND, THEREFORE, DECLINED TO ISSUE THE COC. REFUSAL OF SBA TO ISSUE A COC IS VIEWED AS CONFIRMATION OF THE NONRESPONSIBILITY DETERMINATION. B-175343, MAY 12, 1972.

YOU CONTEND THAT NASA PERSONNEL ERRONEOUSLY ADVISED YOU TO SUBMIT INFORMATION TO NASA FOR A COC RATHER THAN DIRECTLY TO THE SBA. WE NOTE THAT NASA PR 1.705-4(C)(II) PROVIDES THAT THE CONTRACTING OFFICER WILL REFER SUCH MATTERS DIRECTLY TO THE SBA. NASA PR 1.705-4(C)(III) PROVIDES THAT THE CONTRACTING OFFICER IS TO SUPPLY THE SBA WITH RELEVANT TECHNICAL AND FINANCIAL INFORMATION. THE RECORD INDICATES THAT THE INFORMATION WAS REQUESTED FROM YOUR FIRM IN ORDER THAT IT COULD BE SUPPLIED TO SBA IN ACCORDANCE WITH THE ABOVE-CITED REGULATION. NASA DENIES THAT ITS PERSONNEL IMPLIED THAT NASA RATHER THAN THE SBA HAD THE AUTHORITY TO ISSUE A COC. WE CANNOT CONCLUDE FROM THE RECORD BEFORE US THAT THERE WAS ANY IRREGULARITY IN THE PROCEDURES FOLLOWED BY NASA IN CONNECTION WITH THIS MATTER.

YOU QUESTION THE DELAYS IN MAKING AWARD UNDER THE SUBJECT INVITATION AND THE AUTHORITY UNDER WHICH NASA HAS EXTENDED THE INCUMBENT'S CONTRACT. THIS REGARD, WE ARE INFORMED AS FOLLOWS:

"*** LARC PROCUREMENT PERSONNEL HAD ANTICIPATED MAKING AN AWARD DURING JUNE 1972 IN ORDER THAT THE SUCCESSFUL BIDDER COULD COMMENCE PERFORMANCE ON JULY 1, 1972. HOWEVER, THE NASA DETERMINATION OF ASHE'S NON- RESPONSIBILITY WAS NOT SUSTAINED BY THE SBA UNTIL JUNE 28, 1972. BECAUSE THIS QUESTION WAS SETTLED ONLY DAYS BEFORE THE CONTEMPLATED COMMENCEMENT DATE OF THE NEW CONTRACT, THE CONTRACTING OFFICER WAS REQUIRED TO EXTEND THE INCUMBENT, KLATE HOLT, IN ORDER TO ASSURE CONTINUITY OF THE CLEANING AND CUSTODIAL SERVICES. THE CONTRACT AWARD HAS BEEN FURTHER DELAYED BY PROTEST B-176588 LODGED AGAINST ANY AWARD UNDER THE SUBJECT IFB; ***THE PROTESTER, KLATE HOLT, SOUGHT IN THE FEDERAL COURTS A TEMPORARY RESTRAINING ORDER AGAINST NASA'S AWARD OF THE CONTRACT. AS A CONSEQUENCE, A FEDERAL COURT ORDER HAS BEEN ISSUED, BASED ON THE MUTUAL AGREEMENT BY THE INCUMBENT AND THE GOVERNMENT, REQUIRING KLATE HOLT TO CONTINUE PERFORMANCE UNTIL THE KLATE HOLT PROTEST HAS BEEN DISPOSED OF BY THE GAO. DURING THIS PERIOD, WE ARE ABIDING BY THE COURT ORDER. FOR THESE REASONS, THE EXTENSIONS GRANTED KLATE HOLT WERE NECESSARY AND AUTHORIZED AND DO NOT, IN OUR OPINION, CONSTITUTE 'PREFERENTIAL TREATMENT' AS ALLEGED BY ASHE."

IN ADDITION, ON SEPTEMBER 19, 1972, THE AIR FORCE WITHDREW ITS REQUIREMENTS FROM THE SUBJECT COMBINED INVITATION BECAUSE OF A REDUCTION IN FUNDS AND REVISED SPECIFICATIONS AND PROCURED THE REQUIRED SERVICES UNDER ITS OWN SOLICITATIONS. WE ARE INFORMED THAT AS A RESULT OF THIS REDUCTION IN REQUIREMENTS THE SUBJECT INVITATION HAS BEEN CANCELLED AND THE PROCUREMENT WILL BE READVERTISED. IN THESE CIRCUMSTANCES, THE DELAY WAS UNAVOIDABLE AND THERE IS NO LEGAL BASIS FOR ACTION BY OUR OFFICE.

IN CONNECTION WITH YOUR INQUIRY CONCERNING THE NUMBER OF LOW BIDDERS DISPLACED BY KLATE HOLT COMPANY, WE ARE INFORMED THAT THE INSTANT REQUIREMENT HAS BEEN THE SUBJECT OF A COMPETITIVE PROCUREMENT THREE TIMES IN THE LAST NINE YEARS AND, IN EACH CASE, KLATE HOLT HAS BEEN THE LOW BIDDER.

YOU ASSERT THAT NASA IMPROPERLY DENIED YOUR FIRM ACCESS TO LARC IN ORDER TO INTERVIEW EMPLOYEES EVEN THOUGH THE INCUMBENT GRANTED YOU SUCH PERMISSION. IN THIS REGARD, NASA ADVISES THAT YOU WERE DENIED SUCH ACCESS BECAUSE IT WAS OBSERVED THAT YOU WERE INTERVIEWING KLATE HOLT'S EMPLOYEES DURING WORKING HOURS. THEREFORE, YOU WERE ADVISED TO RESTRICT SUCH ACTIVITIES TO PERIODS OTHER THAN OFFICIAL WORKING HOURS. IN ADDITION, NASA ADVISES THAT THE KLATE HOLT COMPANY HAS DENIED THAT IT GRANTED YOU PERMISSION TO INTERVIEW ITS EMPLOYEES DURING WORKING HOURS. ANOTHER FIRM IN THIS COMPETITION, WAS ALSO CAUTIONED TO CONFINE ITS INTERVIEWING TO NON -WORKING HOURS. WE SEE NOTHING IMPROPER IN NASA'S ACTION IN THIS REGARD.

YOU ALSO CONTEND THAT NASA ACTED IMPROPERLY IN PUBLISHING A LIST OF THE INCUMBENT'S EMPLOYEES WHICH INCLUDED ONLY THE EMPLOYEE'S NAME AND THE DATE HIS EMPLOYMENT BEGAN. WE ARE INFORMED THAT THE LIST WAS MADE AVAILABLE TO BIDDERS TO ENABLE THEM TO ASSESS THEIR OBLIGATION UNDER THE SERVICE CONTRACT ACT IN REGARD TO VACATION BENEFITS IN THE EVENT THEY RECEIVED AWARD AND SOUGHT TO HIRE THE INCUMBENT'S EMPLOYEES. THE LIST WAS CLEARLY ADEQUATE FOR THIS PURPOSE. IT WAS NOT INTENDED AS AN AID IN CONTACTING INDIVIDUAL EMPLOYEES AS YOU APPARENTLY INTERPRETED IT.

IN REGARD TO YOUR CONTENTION CONCERNING THE PROCEDURE FOR DETERMINING THE SMALL BUSINESS STATUS OF BIDDERS, NASA PR 1.703, SETS FORTH THE PERTINENT REGULATORY AUTHORITY REGARDING DETERMINATIONS OF THE SMALL BUSINESS STATUS OF BIDDERS, NASA PR 1.703, SETS FORTH THE PERTINENT REGULATORY AUTHORITY REGARDING DETERMINATIONS OF THE SMALL BUSINESS STATUS OF BIDDERS AND THE PROCEDURES TO BE FOLLOWED IN QUESTIONING SUCH STATUS. THEREIN IT IS PROVIDED THAT THE CONTRACTING OFFICER SHALL ACCEPT AT FACE VALUE A REPRESENTATION BY A BIDDER THAT IT IS A SMALL BUSINESS CONCERN UNLESS SUCH STATUS IS QUESTIONED AND THE SMALL BUSINESS ADMINISTRATION DETERMINES THAT THE BIDDER IS NOT A SMALL BUSINESS CONCERN. FURTHER, THE REGULATION PROVIDES THAT A PROTEST QUESTIONING THE STATUS OF A BIDDER MUST BE RECEIVED BY THE CONTRACTING OFFICER WITHIN 5 WORKING DAYS AFTER BID OPENING. OUR OFFICE HAS RECOGNIZED THE VALIDITY OF REGULATIONS TO THIS EFFECT. SEE 46 COMP. GEN. 342 (1966). SINCE THERE WAS NO VIOLATION OF THE PRESCRIBED PROCEDURE IN THE INSTANT CASE, THERE IS NO BASIS FOR ANY ACTION BY OUR OFFICE.

SINCE THE SUBJECT INVITATION HAS BEEN CANCELLED, AND THE REQUIREMENT WILL BE READVERTISED UNDER REVISED SPECIFICATIONS, ANY INQUIRY BY OUR OFFICE IN REGARD TO "AMBIGUITIES" IN THE SPECIFICATIONS CONTAINED THEREIN WOULD SERVE NO PURPOSE.

ACCORDINGLY, YOUR PROTEST IS DENIED.