B-132350, OCT. 31, 1957

B-132350, OCT. 31, 1957

TO METAL CRAFT MANUFACTURING AND SALES CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 17, 1957, REQUESTING RECONSIDERATION OF OUR DECISION DATED SEPTEMBER 25, 1957, WHICH DENIED YOUR PROTEST IN REGARD TO AN AWARD OF A CONTRACT TO ANOTHER CONTRACTOR AND ALSO DENIED YOUR CLAIM FOR LOSS OF ANTICIPATED PROFIT.

YOU CONTEND THAT YOU WERE FINANCIALLY RESPONSIBLE, THAT YOUR FACILITIES WERE ADEQUATE AND THAT YOUR PERFORMANCE UNDER PRIOR GOVERNMENT CONTRACTS WAS SATISFACTORY.

THE CONTRACTING AGENCY'S DETERMINATION THAT AT THE TIME OF AWARD YOU WERE FINANCIALLY IRRESPONSIBLE WAS BASED NOT ONLY UPON ITS OWN INVESTIGATION, BUT ALSO UPON THE DETERMINATION OF THE SMALL BUSINESS ADMINISTRATION THAT YOU WERE NOT FINANCIALLY COMPETENT TO PERFORM THE CONTRACT AND UPON THE REFUSAL OF THE ADMINISTRATION TO ISSUE YOU A CERTIFICATE OF COMPETENCY. THEREFORE, EVEN IF WE WERE TO ASSUME THAT THERE IS SOME EVIDENCE TO SUPPORT YOUR LAST TWO CONTENTIONS, WE COULD NOT CONCLUDE THAT THE CONTRACTING AGENCY'S DETERMINATION THAT YOU WERE FINANCIALLY IRRESPONSIBLE WAS ARBITRARY, CAPRICIOUS OR WITHOUT JUSTIFICATION. THE DETERMINATION OF EACH LOW BIDDER'S RESPONSIBILITY IS PRIMARILY A FUNCTION OF EACH CONTRACTING AGENCY. WE ARE NOT AUTHORIZED TO QUESTION THAT DETERMINATION IN THE ABSENCE OF A SHOWING OF FRAUD, COLLUSION, BAD FAITH, OR THAT THE DETERMINATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

IN REGARD TO YOUR CLAIM FOR LOSS OF ANTICIPATED PROFIT, THE COURT OF CLAIMS HAS HELD THAT EVEN THOUGH A BID IS REJECTED IN VIOLATION OF LAW, THE REJECTED BIDDER CANNOT RECOVER THE PROFIT IT WOULD HAVE MADE OUT OF THE CONTRACT, SINCE IT DOES NOT HAVE A CONTRACT. HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 140 F.SUPP. 409, 135 C.CLS. 63. ..END :