B-144762, JAN. 19, 1961

B-144762, JAN. 19, 1961

TO FACILITIES MAINTENANCE CORPORATION:

THE OFFICE OF THE ASSISTANT SECRETARY, DEPARTMENT OF THE AIR FORCE, HAS, AT YOUR REQUEST, REFERRED TO US FOR CONSIDERATION YOUR WIRE DATED NOVEMBER 22, 1960, PROTESTING THE REJECTION OF A BID SUBMITTED BY YOUR FIRM IN RESPONSE TO INVITATION FOR BIDS 09-607-61-20, ISSUED BY THE BASE PROCUREMENT OFFICE, MOODY AIR FORCE BASE, GEORGIA, ON OCTOBER 1, 1960.

THE INVITATION, AS AMENDED, REQUESTED BIDS--- TO BE OPENED NOVEMBER 3, 1960--- FOR FURNISHING CERTAIN PLANE REFUELING, GROUND AND UTILITY MAINTENANCE, FOOD SERVICE, AND OTHER SCHEDULED SERVICES, AT MOODY AIR FORCE BASE, AS ORDERED BY THE CONTRACTING OFFICER FOR A PERIOD OF ONE YEAR BEGINNING DECEMBER 1, 1960.

AT THE OPENING YOUR BID WAS LOW. YOU WERE SO INFORMED BY TELEPHONE ON NOVEMBER 5, 1960, AND ON THE FOLLOWING DAY YOU WERE ADVISED THAT A SURVEY TEAM WOULD ARRIVE THAT NIGHT. THE FOLLOWING TWO DAYS A SPECIAL SOURCE SURVEY WAS CONDUCTED TO EVALUATE THE CAPABILITY OF YOUR FIRM TO PERFORM THE PROPOSED CONTRACT. THIS SURVEY DISCLOSED UNDER ITS FINDINGS THAT YOUR FIRM AND ITS PERSONNEL DID NOT HAVE ADEQUATE EXPERIENCE TO PERFORM THE CONTRACT PROPERLY, AND THAT APPROPRIATE PERSONNEL AND SUBCONTRACTOR COMMITMENTS HAD NOT BEEN MADE. FURTHERMORE, BY LETTER DATED NOVEMBER 14, 1960, THE SMALL BUSINESS ADMINISTRATION INFORMED YOU THAT YOUR APPLICATION FOR A CERTIFICATE OF COMPETENCY FOR THE PROPOSED CONTRACT HAD BEEN DENIED BASED ON A RECENT SURVEY BY THE ADMINISTRATION WHICH CONCURRED WITH THE PROCURING AGENCY'S FINDINGS.

YOU CONTEND IN YOUR PROTEST THAT "THE ADVERSE FACILITY REPORT MADE ON OUR FIRM WAS IMPROPER INCOMPLETE AND UNJUST.' AS YOU NO DOUBT ARE AWARE, THE DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION IS CONCLUSIVE ON THE ISSUANCE OF A CERTIFICATE OF COMPETENCY. ALSO, THE APPLICABLE REGULATIONS PROVIDE THAT THE QUESTION OF A BIDDER'S RESPONSIBILITY MUST BE AFFIRMATIVELY DETERMINED BY THE CONTRACTING OFFICER. SEE ARMED SERVICES PROCUREMENT REGULATIONS, SECTIONS 1-902, 1-903, AND 1-904. FURTHERMORE, IT HAS BEEN CONSISTENTLY HELD THAT THE RESPONSIBILITY AND CAPABILITY OF THE BIDDER ON A GOVERNMENT CONTRACT IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY, AND SUCH DETERMINATION WHEN MADE WILL NOT BE QUESTIONED IN THE ABSENCE OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE O BRIEN V. CARNEY, 6 FED.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 96; 20 COMP. GEN. 862; AND 37 ID. 430, 435.

INASMUCH AS THE RECORD REVEALS NOTHING TO WARRANT A MODIFICATION OF THE DETERMINATION MADE ADMINISTRATIVELY AND YOUR FIRM HAS BEEN DENIED THE CERTIFICATE OF COMPETENCY WE FIND NO BASIS ON WHICH YOUR PROTEST REASONABLY MIGHT BE SUSTAINED.