B-155241, DEC. 1, 1964

B-155241, DEC. 1, 1964

TO LIECO, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED SEPTEMBER 23, 1964, AND SUBSEQUENT CORRESPONDENCE INCLUDING YOUR LETTER OF OCTOBER 2, 1964, WITH ENCLOSURES, REQUESTING THAT OUR OFFICE REVIEW THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 197-436-64, ISSUED JUNE 19, 1964, BY THE CONTRACTING OFFICER, UNITED STATES NAVAL ORDNANCE PLANT, LOUISVILLE, KENTUCKY 40214. BY TELEGRAM DATED SEPTEMBER 29, 1964, TO OUR OFFICE, YOU PROTESTED AN AWARD TO COLUMBUS MILPAR ALLEGING THAT THIS BIDDER WAS NOT A SMALL BUSINESS CONCERN. ON SEPTEMBER 29, 1964, YOU ALSO DIRECTED A TELEGRAM TO THE CONTRACTING OFFICER ALLEGING THAT COLUMBUS MILPAR WAS NOT A SMALL BUSINESS CONCERN.

THIS WAS A MULTI-YEAR PROCUREMENT AND COMPRISED A REQUIREMENT FOR 24,000 BOMB FINS, MK 14, MOD 1, IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS AND 2,000 CINCH RING SPANNERS FOR FISCAL YEAR 1964 AND A REQUIREMENT OF 10,000 BOMB FINS, MK 14, MOD 1 AND 834 CINCH RING SPANNERS FOR FISCAL YEAR 1964. PAGE 9 OF THE INVITATION PROVIDED THAT THIS PROCUREMENT WAS WHOLLY SET ASIDE FOR SMALL BUSINESS CONCERNS.

YOUR BID WAS THE LOWEST RECEIVED. ON JULY 28, 1964, REPRESENTATIVES FROM THE INSPECTOR OF NAVAL MATERIAL, (INSMAT), GARDEN CITY, NEW YORK 11533, AND THE NAVAL ORDNANCE PLANT, (NOP), LOUISVILLE, KENTUCKY, CONDUCTED A PRE -AWARD SURVEY OF YOUR CONCERN. A REVIEW OF THE RESULTS OF THIS SURVEY INDICATES THERE WAS DISAGREEMENT BETWEEN INSMAT AND NOP WITH RESPECT TO A DETERMINATION REGARDING YOUR ABILITY TO PERFORM IF AN AWARD WERE MADE TO YOU PURSUANT TO THIS INVITATION. FOR PURPOSES OF RESOLVING THE DISAGREEMENT BETWEEN NOP AND INSMAT, A SECOND PRE AWARD SURVEY OF YOUR CONCERN WAS CONDUCTED ON AUGUST 25, 1964. CONCURRENT WITH THE EFFORTS TO REACH AGREEMENT BETWEEN INSMAT AND NOP, REGARDING THE DETERMINATION OF YOUR RESPONSIBILITY, THE CONTRACTING OFFICER ON AUGUST 18, 1964, REQUESTED A SURVEY OF YOUR CONCERN BY THE SMALL BUSINESS ADMINISTRATION FOR THE PURPOSE OF DETERMINING WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED TO YOU. IN CONNECTION WITH THIS REQUEST BOTH THE FAVORABLE AND UNFAVORABLE REPORTS FROM INSMAT AND NOP, REGARDING YOUR ABILITY TO PERFORM WERE FORWARDED TO SBA.

THE NEW YORK REGIONAL OFFICE OF SBA DETERMINED THAT YOU SHOULD BE ISSUED A COC AND THE MATTER WAS SUBMITTED TO SBA HEADQUARTERS IN WASHINGTON, D.C., FOR APPROPRIATE REVIEW. ON SEPTEMBER 23, 1964, THE OFFICE OF THE ADMINISTRATOR, SBA, IN WASHINGTON, D.C., NOTIFIED THE CONTRACTING OFFICER AT LOUISVILLE THAT SBA AFTER REVIEW HAD DECLINED TO ISSUE A COC TO YOU UNDER THIS INVITATION.

ON AUGUST 12 AND 13, 1964, A PRE-AWARD SURVEY WAS CONDUCTED JOINTLY BY NOP, LOUISVILLE, KENTUCKY AND THE INSPECTOR OF NAVAL MATERIAL, (INM), CINCINNATI, OHIO, ON COLUMBUS MILPAR AND MANUFACTURING COMPANY, 3540 EAST FULTON STREET, COLUMBUS 13, OHIO, THE SECOND LOW BIDDER UNDER THIS INVITATION. BOTH NOP AND INM, CINCINNATI, AGREED THAT COLUMBUS MILPAR WOULD BE ABLE TO PERFORM A CONTRACT IN ACCORDANCE WITH THE REQUIREMENTS OF THIS INVITATION. ON SEPTEMBER 29, 1964, THE CONTRACTING OFFICER ADVISED YOU THAT AWARD UNDER THIS INVITATION COULD NOT BE FURTHER DELAYED BECAUSE THE MATERIAL WAS URGENTLY REQUIRED. AWARD TO COLUMBUS MILPAR WAS MADE ON SEPTEMBER 28, 1964.

WHILE THERE WAS SOME INTERNAL DISAGREEMENT IN THE NAVY AND SBA REGARDING THE DETERMINATION AS TO YOUR RESPONSIBILITY, THE OFFICIAL POSITION OF THE NAVY AT THE TIME OF AWARD AND AT THE PRESENT TIME IS THAT YOU ARE NOT A RESPONSIBLE BIDDER. THE OFFICIAL POSITION OF SBA AFTER REVIEW IS THAT YOU ARE NOT TO BE ISSUED A COC. OUR OFFICE HAS NO AUTHORITY TO REVIEW DETERMINATIONS BY SBA REGARDING THE ISSUANCE OF A COC. IT IS THE POSITION OF OUR OFFICE THAT THE REFUSAL OF SBA TO ISSUE A COC MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF A BIDDER AND THAT WHEN THE ISSUANCE OF A COC IS DENIED, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED. SEE 39 COMP. GEN. 705. IT HAS NOT BEEN SHOWN THAT THE DETERMINATION BY THE NAVY THAT YOU WERE NOT A RESPONSIBLE BIDDER UNDER THIS INVITATION WAS ARBITRARY, CAPRICIOUS OR IN BAD FAITH. CONSEQUENTLY, THIS DETERMINATION WILL NOT BE QUESTIONED BY OUR OFFICE. SEE 38 COMP. GEN. 131.

WITH RESPECT TO YOUR ALLEGATION THAT COLUMBUS MILPAR IS NOT A SMALL BUSINESS CONCERN, WE HAVE BEEN ADVISED BY THE NAVY THAT PRIOR TO AWARD SBA WAS REQUESTED TO MAKE A SIZE DETERMINATION OF COLUMBUS MILPAR AND ON AUGUST 17, 1964, SPA DETERMINED THAT COLUMBUS MILPAR WAS A SMALL BUSINESS CONCERN. SBA WAS REQUESTED TO MAKE THIS DETERMINATION BY THE CONTRACTING OFFICER PURSUANT TO THE PROTEST OF ANOTHER BIDDER REGARDING THE SIZE STATUS OF COLUMBUS MILPAR. IN THIS SITUATION 15 U.S.C. 637 (B) (6) PROVIDES THAT SBA IS AUTHORIZED TO DETERMINE WITHIN ANY INDUSTRY THE CONCERNS WHICH ARE TO BE DESIGNATED " SMALL BUSINESS CONCERNS" ENTITLED TO PREFERENCE IN GOVERNMENT PROCUREMENTS. PURSUANT TO THIS STATUTE NEITHER OUR OFFICE NOR ANY EXECUTIVE AGENCY OF THE GOVERNMENT MAY QUESTION A DETERMINATION MADE BY SBA OF THE SMALL BUSINESS SIZE OF A CONCERN.

FURTHERMORE, WE NOTE THAT YOUR PROTEST REGARDING THE SIZE STATUS OF COLUMBUS MILPAR WAS NOT DIRECTED TO THE CONTRACTING OFFICER UNTIL SEPTEMBER 29, 1964, WHICH WAS AFTER THE DATE OF THE AWARD TO COLUMBUS MILPAR MADE ON SEPTEMBER 28, 1964. IN THIS SITUATION ASSUMING THERE WERE NO PROTESTS REGARDING THE SIZE STATUS OF COLUMBUS MILPAR OTHER THAN YOURS, AND NO SIZE DETERMINATION OF COLUMBUS MILPAR HAD BEEN MADE BY SBA, THERE WOULD BE NO BASIS FOR CONSIDERATION OF YOUR PROTEST REGARDING THE SIZE STATUS OF COLUMBUS MILPAR. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO ARMED SERVICES PROCUREMENT REGULATION SECTION 1-703 WHICH PROVIDES THAT THE CONTRACTING OFFICER SHALL ACCEPT THE SELF-CERTIFICATION BY A BIDDER AS TO THE SIZE OF HIS FIRM UNLESS THE CONTRACTING OFFICER DESIRES TO SUBMIT THE MATTER TO THE SMALL BUSINESS ADMINISTRATION OR SOME OTHER BIDDER HAS, PRIOR TO AWARD, SUBMITTED TO THE CONTRACTING OFFICER A WRITTEN PROTEST. ARMED SERVICES PROCUREMENT REGULATION SECTION 1-703 (B) (1) PROVIDES THAT A PROTEST REGARDING THE SIZE STATUS OF A BIDDER RECEIVED BY THE CONTRACTING OFFICER AFTER AWARD SHALL NOT BE CONSIDERED. SEE ALSO B- 153132, FEBRUARY 4, 1964.