B-180340, MAY 14, 1974

B-180340: May 14, 1974

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COUPLED WITH ORAL ADVICE FROM DCASR THAT PROTESTER WAS NOT RESPONSIBLE BIDDER. BASED UPON A RECENTLY CONDUCTED PREAWARD SURVEY ON PROTESTER IN ANOTHER PROCUREMENT WAS SUFFICIENT TO JUSTIFY DETERMINATION OF NONRESPONSIBILITY BY CONTRACTING OFFICER. 2. ALTHOUGH PROTESTER WAS SMALL BUSINESS FIRM. THERE WAS NO REQUIREMENT TO OBTAIN COC FROM SBA SINCE AWARD WAS FOR LESS THAN $10. WAS SENT TO 43 PROSPECTIVE SUPPLIERS AND REQUESTED BIDS ON ONE LOT OF WIRING ASSEMBLIES CONSISTING OF TWO NAEC PART NUMBERS IN ACCORDANCE WITH GOVERNMENT DRAWINGS. FOUR BIDS WERE RECEIVED AND OPENED ON DECEMBER 7. THE QUESTION OF ORLOTRONICS RESPONSIBILITY WAS SUBMITTED TO NAEC'S CONTRACT REVIEW BOARD. AFTER WHICH THE CONTRACTING OFFICER DETERMINED THAT ORLOTRONICS WAS NOT A RESPONSIBLE BIDDER ON THE BASIS OF ORLOTRONICS' PERSISTENT LATE DELIVERIES ON PRIOR CONTRACTS WITH NAEC.

B-180340, MAY 14, 1974

1. EVIDENCE THAT PROTESTER HAD BEEN PERSISTENTLY LATE IN ITS DELIVERIES UNDER SEVERAL CONTRACTS WITH PROCURING ACTIVITY, COUPLED WITH ORAL ADVICE FROM DCASR THAT PROTESTER WAS NOT RESPONSIBLE BIDDER, BASED UPON A RECENTLY CONDUCTED PREAWARD SURVEY ON PROTESTER IN ANOTHER PROCUREMENT WAS SUFFICIENT TO JUSTIFY DETERMINATION OF NONRESPONSIBILITY BY CONTRACTING OFFICER. 2. EVIDENCE OF RECORD SUPPORTS CONTRACTING OFFICER'S DETERMINATION THAT HE HAD SUFFICIENT INFORMATION AVAILABLE TO HIM TO MAKE DETERMINATION REGARDING RESPONSIBILITY WITHOUT REQUIRING PREAWARD SURVEY. SEE ASPR 1- 905.4(B). 3. ALTHOUGH PROTESTER WAS SMALL BUSINESS FIRM, THERE WAS NO REQUIREMENT TO OBTAIN COC FROM SBA SINCE AWARD WAS FOR LESS THAN $10,000. SEE ASPR 1- 705.4(C).

TO ORLOTRONICS CORPORATION:

INVITATION FOR BIDS (IFB) N00156-74-B-0127, ISSUED BY THE NAVAL AIR ENGINEERING CENTER (NAEC), PHILADELPHIA, PENNSYLVANIA, WAS SENT TO 43 PROSPECTIVE SUPPLIERS AND REQUESTED BIDS ON ONE LOT OF WIRING ASSEMBLIES CONSISTING OF TWO NAEC PART NUMBERS IN ACCORDANCE WITH GOVERNMENT DRAWINGS. FOUR BIDS WERE RECEIVED AND OPENED ON DECEMBER 7, 1973, WITH ORLOTRONICS CORPORATION (ORLOTRONICS) SUBMITTING THE LOW BID OF $1,763.23.

THE QUESTION OF ORLOTRONICS RESPONSIBILITY WAS SUBMITTED TO NAEC'S CONTRACT REVIEW BOARD, AFTER WHICH THE CONTRACTING OFFICER DETERMINED THAT ORLOTRONICS WAS NOT A RESPONSIBLE BIDDER ON THE BASIS OF ORLOTRONICS' PERSISTENT LATE DELIVERIES ON PRIOR CONTRACTS WITH NAEC. THE CONTRACT REVIEW BOARD IN THE COURSE OF ITS REVIEW MADE A TELEPHONE CALL TO THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) IN PHILADELPHIA AND WAS ADVISED BY DCASR THAT ORLOTRONICS' PERFORMANCE WAS UNSATISFACTORY IN THE FOLLOWING AREAS: FINANCIAL CAPABILITY, PERFORMANCE RECORD AND ABILITY TO MEET REQUIRED DELIVERY SCHEDULES. IN THIS CONNECTION, WE HAVE BEEN ADVISED THAT ON JUNE 11, 1973, DCASR CONDUCTED A PREAWARD SURVEY OF ORLOTRONICS IN CONNECTION WITH ANOTHER CONTRACT (PREAWARD SURVEY NO. 3910- A-3505-18N), BUT DUE TO THE LOW DOLLAR AMOUNT HERE INVOLVED DID NOT CONDUCT A SURVEY FOR THE PRESENT PROCUREMENT.

AWARD WAS MADE TO T. H. VEILLEUX COMPANY, THE SECOND LOW BIDDER, ON DECEMBER 18, 1973. BY LETTER OF THE SAME DATE ORLOTRONICS WAS NOTIFIED THAT IT WAS CONSIDERED NONRESPONSIBLE. BY LETTERS OF DECEMBER 20, 1973, AND JANUARY 2, 1974, ORLOTRONICS LODGED A PROTEST WITH OUR OFFICE AGAINST AWARD TO ANY OTHER FIRM UNDER THE INSTANT IFB. ORLOTRONICS MAINTAINS THAT IT WAS THE LOW RESPONSIVE BIDDER AND, AS SUCH, SHOULD HAVE RECEIVED THE AWARD. ORLOTRONICS ALSO QUESTIONS THE NONRESPONSIBILITY DETERMINATION SINCE NO PREAWARD SURVEY HAD BEEN CONDUCTED.

IN DETERMINING WHETHER A PROSPECTIVE CONTRACTOR IS A RESPONSIBLE BIDDER, SECTION 1-903 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) SETS FORTH CERTAIN MINIMUM STANDARDS FOR MAKING SUCH DETERMINATIONS. THESE STANDARDS INCLUDE THE REQUIREMENT FOR A SATISFACTORY RECORD OF PERFORMANCE AND THE ABILITY TO COMPLY WITH REQUIRED DELIVERY OR PERFORMANCE SCHEDULES. B-177376, APRIL 2, 1973. REGARDING ORLOTRONICS' RECORD OF PERFORMANCE, THE RECORD INDICATES THAT OF THE SEVEN CONTRACTS AWARDED TO IT BY NAEC, FOUR WERE COMPLETED ONLY AFTER EXTENSIONS WERE GRANTED TWO AND THREE TIMES RANGING FROM 11 DAYS TO 62 DAYS AFTER INITIAL DELIVERY DATES AND ON THE REMAINING THREE CONTRACTS ORLOTRONICS WAS LATE IN ITS DELIVERIES. THIS LENDS SUPPORT TO THE CONTRACTING OFFICER'S STATEMENT THAT NOT ONLY DOES ORLOTRONICS NOT HAVE A SATISFACTORY RECORD OF PERFORMANCE, BUT ALSO LACKS THE TENACITY AND PERSEVERENCE TO MEET DELIVERY SCHEDULES, WHICH ACCORDING TO ASPR 1-903.1(III) IS SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY.

REGARDING ORLOTRONICS' ALLEGATION IN ITS LETTER OF JANUARY 2 THAT IT HAS EXPERIENCED NO FINANCIAL DIFFICULTIES, THE ONLY EVIDENCE OF RECORD IN THIS CONNECTION IS THE ADVICE GIVEN TO THE CONTRACT REVIEW BOARD BY DCASR THAT ORLOTRONICS WAS NOT FINANCIALLY RESPONSIBLE. THIS ADVICE WAS APPARENTLY BASED ON THE INFORMATION OBTAINED BY DCASR IN ITS JUNE 11 PREAWARD SURVEY OF ORLOTRONICS SINCE, AS PREVIOUSLY MENTIONED, NO PREAWARD SURVEY WAS CONDUCTED IN CONNECTION WITH THE PRESENT PROCUREMENT. WHILE PERHAPS THIS EVIDENCE STANDING ALONE WOULD NOT BE SUFFICIENT TO JUSTIFY A DETERMINATION THAT ORLOTRONICS WAS NOT A RESPONSIBLE FIRM, WE BELIEVE THE EVIDENCE CONCERNING ORLOTRONICS' PAST PERFORMANCE RECORD AND INABILITY TO MEET THE REQUIRED DELIVERY SCHEDULES IS SUFFICIENT TO SUPPORT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY.

IN ITS LETTER OF JANUARY 2 ORLOTRONICS APPEARS TO TAKE THE POSITION THAT SINCE THERE HAD BEEN NO PREAWARD SURVEY, THERE COULD BE NO DETERMINATION OF NONRESPONSIBILITY. HOWEVER, ACCORDING TO ASPR 1 905.4(B) A PREAWARD SURVEY IS ONLY REQUIRED WHEN THE INFORMATION AVAILABLE TO THE PROCURING ACTIVITY IS NOT SUFFICIENT TO ENABLE THE CONTRACTING OFFICER TO MAKE A DETERMINATION REGARDING THE RESPONSIBILITY OF THE CONTRACTOR. IN THE PRESENT PROCUREMENT IT APPEARS THAT THERE WAS SUFFICIENT INFORMATION AVAILABLE TO THE CONTRACTING OFFICER FOR HIM TO MAKE SUCH A DETERMINATION.

ALSO, IT SHOULD BE POINTED OUT THAT ALTHOUGH ORLOTRONICS IS A SMALL BUSINESS, THERE IS NO REQUIREMENT TO OBTAIN A CERTIFICATE OF COMPETENCY FROM THE SMALL BUSINESS ADMINISTRATION SINCE THE AWARD IS FOR LESS THAN $10,000. SEE ASPR 1-705.4(C).

ON THE BASIS OF THE RECORD BEFORE US WE MUST CONCLUDE THAT THE CONTRACTING OFFICER ACTED IN GOOD FAITH AND THE EVIDENCE SUPPORTS HIS DETERMINATION. THEREFORE, WE FIND NO LEGAL BASIS TO DISTURB THE AWARD.

FOR THE ABOVE REASONS, THE PROTEST OF ORLOTRONICS IS DENIED.