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B-149293, AUG. 14, 1962

B-149293 Aug 14, 1962
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INC.: WE HAVE RECEIVED A COPY OF YOUR TELEGRAM DATED JUNE 25. THE SUBJECT BIDS WERE OPENED ON MAY 4. YOU WERE FOUND TOBE LOW BIDDER. CONCLUDED THAT YOUR COMPANY WAS NOT A POSITION TO OFFER SATISFACTORY PERFORMANCE. THE BASIS FOR THIS CONCLUSION WAS THE OPINION THAT YOU HAD A POOR PERFORMANCE RECORD AND LACKED TECHNICAL COMPETENCY IN THE PRODUCTION PLANNING AND QUALITY ASSURANCE AREAS. THE PROCURING ACTIVITY DETERMINED THAT IT WAS FACED WITH A CRITICAL STOCK STATUS AS TO THE ITEMS BEING PROCURED UNDER THE SUBJECT INVITATIONS. A COPY OF THIS CERTIFICATE OF URGENCY WAS FURNISHED TO THE SBA REPRESENTATIVE. IT HAS LONG BEEN AN ESTABLISHED RULE OF OUR OFFICE THAT THE DETERMINATION OF THE QUALIFICATIONS OF A BIDDER IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY.

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B-149293, AUG. 14, 1962

TO ADAMS ENGINEERING CO., INC.:

WE HAVE RECEIVED A COPY OF YOUR TELEGRAM DATED JUNE 25, 1962, TO THE CONTRACTING OFFICER OF SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, IN WHICH YOU PROTEST THE AWARD OF SUPPLY CONTRACTS UNDER INVITATIONS FOR BIDS NOS. 104-1136-62 AND 104-1558-62.

THE SUBJECT BIDS WERE OPENED ON MAY 4, 1962, AND YOU WERE FOUND TOBE LOW BIDDER. SINCE RECORDS AT THE SHIPS PARTS CONTROL CENTER INDICATED THAT YOU HAD A 39 PERCENT DELINQUENCY RECORD ON OUTSTANDING CONTRACTS, THE PROCURING ACTIVITY REQUESTED THE BRANCH INSPECTOR OF NAVAL MATERIAL, CLEARWATER, FLORIDA, TO CONDUCT A PREAWARD SURVEY. ON MAY 22, 1962, THE BRANCH INSPECTOR, AFTER HAVING CONDUCTED THE SURVEY, CONCLUDED THAT YOUR COMPANY WAS NOT A POSITION TO OFFER SATISFACTORY PERFORMANCE. THE BASIS FOR THIS CONCLUSION WAS THE OPINION THAT YOU HAD A POOR PERFORMANCE RECORD AND LACKED TECHNICAL COMPETENCY IN THE PRODUCTION PLANNING AND QUALITY ASSURANCE AREAS.

THE PROCURING ACTIVITY DETERMINED THAT IT WAS FACED WITH A CRITICAL STOCK STATUS AS TO THE ITEMS BEING PROCURED UNDER THE SUBJECT INVITATIONS. THEREFORE DECIDED THAT IT COULD NOT DELAY THE PROCUREMENT FOR SUCH TIME AS WOULD BE INVOLVED IN REFERRING THE MATTER OF YOUR PRODUCTIVE CAPABILITY TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR THE PURPOSE OF GIVING THAT ADMINISTRATION AN OPPORTUNITY TO ISSUE A CERTIFICATE OF COMPETENCY ON YOUR BEHALF. THEREFORE, PURSUANT TO THE AUTHORITY IN ASPR 1-705.6 (B) (I), THE CONTRACTING OFFICER, ON MAY 29, 1962, CERTIFIED IN WRITING THAT THE CONTRACTS MUST BE AWARDED WITHOUT DELAY. A COPY OF THIS CERTIFICATE OF URGENCY WAS FURNISHED TO THE SBA REPRESENTATIVE.

IT HAS LONG BEEN AN ESTABLISHED RULE OF OUR OFFICE THAT THE DETERMINATION OF THE QUALIFICATIONS OF A BIDDER IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY, AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS FOR THE DETERMINATION, WE WILL NOT OBJECT TO THE DETERMINATION AS MADE. WE BELIEVE THAT ON THE RECORD BEFORE US THERE WAS A BASIS FOR THE DETERMINATION MADE AS TO YOUR TECHNICAL PRODUCTION QUALIFICATIONS. MOREOVER, THE DECISION TO AVOID THE DELAY, WHICH WOULD HAVE BEEN INCIDENT TO REFERRING THE MATTER OF YOUR COMPETENCY TO THE SBA, APPEARS TO HAVE BEEN PROPERLY MADE UNDER THE AUTHORITY CONTAINED IN REGULATIONS PROMULGATED UNDER THE ARMED SERVICES PROCUREMENT REGULATION, AS AMENDED, 10 U.S.C. 2301 ET SEQ. SEE 38 COMP. GEN. 248 AND CASES CITED THEREIN; ALSO, B-145487, DATED MAY 19, 1961.

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