B-181350, AUG 20, 1974

B-181350: Aug 20, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHERE CONTRACTING OFFICER DETERMINED THAT LOW BIDDER WAS NONRESPONSIBLE DUE TO UNSATISFACTORY RATINGS IN AREAS OF PRODUCTION CAPABILITY. LOW BIDDER CONTENDS THAT DETERMINATION IS BASED ON ERRONEOUS AND INADEQUATE INFORMATION. NO RELIEF IS PROVIDED SINCE GAO HAS NO AUTHORITY TO REVIEW SBA DETERMINATION OR TO REQUIRE SBA TO ISSUE COC OR TO REOPEN CASE WHEN COC IS DENIED. DSA 120-74-R-2134 AND DSA 120-74-R-2176 WERE ISSUED BY DEFENSE SUPPLY AGENCY (DSA) FOR THE PROCUREMENT OF SURGICAL INSTRUMENT CABINETS. UNITRON WAS LOW BIDDER UNDER SOLICITATION NO. THE SURVEY TEAM REPORTED THEIR FINDINGS THAT UNITRON WAS UNSATISFACTORY IN THE AREAS OF PRODUCTION CAPABILITY. THIS FINDING STEMMED PRIMARILY FROM THE FACT THAT UNITRON'S PAST AND PRESENT PERFORMANCE HISTORY WAS UNSATISFACTORY.

B-181350, AUG 20, 1974

WHERE CONTRACTING OFFICER DETERMINED THAT LOW BIDDER WAS NONRESPONSIBLE DUE TO UNSATISFACTORY RATINGS IN AREAS OF PRODUCTION CAPABILITY, PERFORMANCE RECORD, AND ABILITY TO MEET REQUIRED SCHEDULE AND WHERE SBA SUBSEQUENTLY DECLINED TO ISSUE COC, AND LOW BIDDER CONTENDS THAT DETERMINATION IS BASED ON ERRONEOUS AND INADEQUATE INFORMATION, NO RELIEF IS PROVIDED SINCE GAO HAS NO AUTHORITY TO REVIEW SBA DETERMINATION OR TO REQUIRE SBA TO ISSUE COC OR TO REOPEN CASE WHEN COC IS DENIED. FURTHERMORE, SBA'S DENIAL OF COC AFFIRMS CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY. SEE COMP. GEN. DECISION CITED.

UNITRON ENGINEERING COMPANY:

SOLICITATION NOS. DSA 120-74-R-2134 AND DSA 120-74-R-2176 WERE ISSUED BY DEFENSE SUPPLY AGENCY (DSA) FOR THE PROCUREMENT OF SURGICAL INSTRUMENT CABINETS. THE SUBJECT PROTEST CONCERNS DSA'S DETERMINATION THAT UNITRON ENGINEERING COMPANY (UNITRON) DID NOT QUALIFY AS A RESPONSIBLE PROSPECTIVE CONTRACTOR UNDER EITHER OF THE ABOVE SOLICITATIONS.

UNITRON WAS LOW BIDDER UNDER SOLICITATION NO. DSA 120-74-R-2134. A PRE- AWARD SURVEY CONDUCTED BY DEFENSE CONTRACT ADMINISTRATION SERVICES REGION CHICAGO (DCASR) ON MARCH 13, 1974, RESULTED IN A RECOMMENDATION OF AWARD TO UNITRON. HOWEVER, IN LIGHT OF RECENT CONTRACTUAL DIFFICULTIES ENCOUNTERED BY UNITRON, DSA REQUESTED A RE-SURVEY BY DCASR WHICH RESULTED IN A "NO AWARD" RECOMMENDATION. ON APRIL 8, 1974, THE SURVEY TEAM REPORTED THEIR FINDINGS THAT UNITRON WAS UNSATISFACTORY IN THE AREAS OF PRODUCTION CAPABILITY, PERFORMANCE RECORD, AND ABILITY TO MEET THE REQUIRED SCHEDULE. THIS FINDING STEMMED PRIMARILY FROM THE FACT THAT UNITRON'S PAST AND PRESENT PERFORMANCE HISTORY WAS UNSATISFACTORY. DCASR FOUND NO POSITIVE EVIDENCE THAT UNITRON HAD TAKEN OR INTENDED TO TAKE THE NECESSARY ACTION TO INCREASE ITS PRODUCTION CAPACITY. ON THE BASIS OF DCASR'S RE-SURVEY REPORT, THE CONTRACTING OFFICER DETERMINED THAT UNITRON WAS NONRESPONSIBLE.

BECAUSE OF UNITRON'S SMALL BUSINESS STATUS, THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4 FOR REVIEW AND CONSIDERATION WHETHER UNITRON SHOULD BE ISSUED A CERTIFICATE OF COMPETENCY (COC) FOR THE PROCUREMENT. IN ITS LETTER OF MAY 14, 1974, DENYING THE UNITRON'S APPLICATION FOR A COC, SBA STATED:

"WE HAVE CAREFULLY REVIEWED ALL INFORMATION AND DATA SUPPLIED AND FIND NO SUFFICIENT REASON FOR DISAGREEING WITH THE DECISION OF THE PROCURING AGENCY. AN AUDIT OF YOUR CURRENT IN-HOUSE GOVERNMENT CONTRACTS INDICATES SERIOUS DELINQUENCIES. IN ADDITION, YOUR PAST PERFORMANCE HISTORY ON GOVERNMENT CONTRACTS DOES NOT GIVE THE AGENCY REASONABLE ASSURANCE THAT YOU CAN OVERCOME THE DIFFICULTIES IN TIME TO PERFORM ON THIS CONTRACT IN ACCORDANCE WITH SCHEDULES."

ON MAY 22, 1974, UPON RECEIPT OF THIS INFORMATION, AWARD UNDER SOLICITATION NO. DSA 120-74-R-2134 WAS MADE TO S. BLICKMAN, INC., THE SECOND LOW BIDDER.

UNITRON HAS PROTESTED FOR SEVERAL REASONS. FIRST, IT CONTENDS THAT THE PRE-AWARD RE-SURVEY WHICH RESULTED IN THE NONRESPONSIBILITY DETERMINATION WAS BASED ON ERRONEOUS INFORMATION. SECOND, IT CONTENDS THAT THE SBA DENIAL OF THE COC WAS FAULTY BECAUSE ALL PERTINENT INFORMATION WAS NOT TAKEN INTO CONSIDERATION.

UNDER 15 U.S.C. 637 (B)(7), SBA HAS THE AUTHORITY TO ISSUE OR DENY A COC. OUR OFFICE HAS NO AUTHORITY TO REVIEW SBA DETERMINATIONS OR TO REQUIRE IT TO ISSUE A COC OR TO REOPEN A CASE WHEN A COC HAS BEEN DENIED. 51 COMP. GEN. 448 (1972); B-179738, FEBRUARY 20, 1974. THEREFORE, OUR OFFICE IS UNABLE TO PROVIDE ANY RELIEF FOR UNITRON NOTWITHSTANDING THE CONTENTIONS MADE REGARDING SBA.

MOREOVER, THE DETERMINATION OF OFFEROR RESPONSIBILITY IS A MATTER FOR ADMINISTRATIVE CONSIDERATION BY EACH CONTRACTING OFFICER AND IN THE CASE OF SMALL BUSINESSES, IS FOR FURTHER CONSIDERATION BY SBA WITH RESPECT TO A PROSPECTIVE CONTRACTOR'S CAPACITY WHEN THE CONTRACTING OFFICER MAKES A NEGATIVE FINDING. IN THAT CONNECTION, THIS OFFICE HAS LONG RECOGNIZED THAT WHEN AN OFFEROR'S APPLICATION FOR ISSUANCE OF A COC IS DENIED BY SBA, THE CONTRACTING OFFICER'S DETERMINATIONS OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED BY SBA. B 179738, FEBRUARY 20, 1974.

ACCORDINGLY, THE PROTEST UNDER SOLICITATION NO. DSA 120-74-R-2134 IS DENIED.

UNITRON ALSO PROTESTED DSA'S DETERMINATION OF NONRESPONSIBILITY UNDER SOLICITATION NO. DSA 120-74-R-2176. HOWEVER, WE HAVE BEEN INFORMED THAT BASED ON EVENTS SUBSEQUENT TO SBA'S DENIAL OF A COC TO UNITRON UNDER SOLICITATION NO. DSA 120-74-R-2134, SBA DID ISSUE A COC TO UNITRON UNDER SOLICITATION NO. DSA 120-74-R-2176. SPECIFICALLY, WE HAVE BEEN ADVISED THAT SEVERAL OF UNITRON'S CONRACTS WERE TERMINATED, THEREBY RELEASING ITS PRODUCTION FACILITIES FOR OTHER WORK. FURTHERMORE, WE HAVE BEEN ADVISED THAT UNITRON HIRED A NEW PRODUCTION MANAGER.

AS A RESULT OF SBA'S ISSUANCE OF A COC, DSA AWARDED A CONTRACT TO UNITRON ON JUNE 28, 1974. THEREFORE, WE WILL TAKE NO FURTHER ACTION REGARDING UNITRON'S PROTEST UNDER SOLICITATION NO. DSA 120-74-R-2176.