B-152080, MAY 6, 1964

B-152080, MAY 6, 1964

TO ENGINEERING RECORD CO., INC.:

BY LETTER DATED MARCH 17, 1964, YOU REQUESTED THAT WE RECONSIDER OUR DECISION OF OCTOBER 9, 1963, WHICH DENIED YOUR PROTEST AGAINST THE AWARD MADE BY THE DEPARTMENT OF THE AIR FORCE, BASE PROCUREMENT BRANCH,6592D SUPPORT GROUP, LOS ANGELES, CALIFORNIA, UNDER INVITATION FOR BIDS NO. 04- 693-63-12 DATED APRIL 22, 1963. IN THAT DECISION WE HELD THAT THE REFUSAL OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY TO YOUR COMPANY WITH RESPECT TO THIS PROCUREMENT WAS PERSUASIVE AS TO YOUR COMPETENCY AND CREDIT TO PERFORM THE PROCUREMENT.

IN SUCH CONNECTION, IT IS STATED IN YOUR LETTER THAT:

"* * * ALL ALLEGATIONS, AS REPORTED TO THE COMPTROLLER GENERAL CONCERNING THE CIRCUMSTANCES SURROUNDING AWARD OF SAID CONTRACT BY THE UNITED STATES AIR FORCE, AND THE FURTHER ALLEGATIONS CONCERNING THE PERFORMANCE OF APPLICANT ON THE PRIOR CONTRACT NO. AF 04/693/-109, ARE FALSE, AND NOT SUPPORTED BY THE FACTS, AND THAT AN OPINION RENDERED ON THE BASIS OF SAID ALLEGATIONS CANNOT BE VALID.'

THE DETAILS OF THIS PROCUREMENT WERE ADEQUATELY SET FORTH IN OUR DECISION AND WILL NOT BE REPEATED HERE.

AT THE OUTSET, IT SHOULD BE OBSERVED THAT THE ALLEGATIONS SET OUT IN YOUR LETTER RELATE TO MATTERS AFFECTING YOUR RESPONSIBILITY AS A PROSPECTIVE GOVERNMENT CONTRACTOR, ESSENTIALLY, YOU WERE FOUND BY THE PROCUREMENT ACTIVITY TO BE DEFICIENT IN THE AREAS OF PRODUCTION AND ENGINEERING CAPABILITY. CLEARLY, ONE OF THE FACTORS (SEE ASPR 1-903) IN DETERMINING A BIDDER'S RESPONSIBILITY IS HIS APPARENT ABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS SET OUT IN THE INVITATION. THE DETERMINATION OF THE PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICE CONCERNED, AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS THEREFOR, THERE IS NO BASIS UPON WHICH WE MAY OBJECT. 37 COMP. GEN. 430, 435; 39 ID. 705, 711. IN THE LAST-CITED DECISION, WE HELD:

"* * * THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT. WHILE SUCH JUDGMENT SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED, SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY TO DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING OFFICIALS. IN VIEW THEREOF, AND OF THE APPARENT SUBSTANTIAL BASIS FOR THE CONCLUSION OF THE CONTRACTING AGENCY AS TO THE RESPONSIBILITY OF THE ESHELMAN FIRM-- WHICH HAS, IN EFFECT, BEEN CONFIRMED BY THE SMALL BUSINESS ADMINISTRATION--- WE SEE NO LEGAL BASIS UPON WHICH WE MAY PROPERLY OBJECT TO THE DETERMINATION TO REJECT THE ESHELMAN BID.'

WE HAVE REVIEWED THE FILE RECEIVED FROM THE ADMINISTRATIVE OFFICE WITH RESPECT TO YOUR PROTEST AND WE ARE UNABLE TO AGREE THAT THE SUBSTANCE OF THE DETERMINATION MADE AS TO YOUR RESPONSIBILITY WAS NOT SUPPORTED BY FACT AND WE FIND NOTHING IN YOUR LETTER WHICH WOULD REQUIRE US TO QUESTION THE ADMINISTRATIVE REPORT CONCERNING YOUR RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR.

SINCE THE SMALL BUSINESS ADMINISTRATION, PURSUANT TO THE AUTHORITY VESTED IN IT BY 15 U.S.C. 637 (B) (7), DETERMINED NOT TO CERTIFY YOUR CAPACITY AND CREDIT TO THE PROCUREMENT ACTIVITY, IT MUST BE CONCLUDED THAT THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY HAS BEEN AFFIRMED. THAT BEING THE CASE, NO LEGAL AWARD COULD HAVE BEEN MADE TO YOU UNDER 10 U.S.C. 2305 (B) WHICH REQUIRES THAT AWARDS BE MADE TO "RESPONSIBLE BIDDERS" ONLY.