B-148221, APR. 9, 1962

B-148221, APR. 9, 1962

TO UNITED WORLD FILMS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1962, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A CONTRACT ON FEBRUARY 6, 1962, TO NORWOOD STUDIOS, INCORPORATED, UNDER INVITATION FOR BIDS NO. FNH- 5G-26564, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, COVERING THE PROCURING AND SALE OF EDUCATIONAL FILMS FOR THE PERIOD ENDING DECEMBER 31, 1963. YOUR CONTENTIONS ARE, IN SUBSTANCE, THAT NORWOOD STUDIOS WAS NOT A QUALIFIED BIDDER; THAT GSA SHOULD HAVE DETERMINED THE COMPETENCY OF THE LOW BIDDER (NORWOOD), OR THE LACK THEREOF, AND WAS NOT REQUIRED TO REFER THE MATTER TO THE SMALL BUSINESS ADMINISTRATION; AND THAT THE INVITATION SHOULD BE CANCELLED BECAUSE ITS TERMS WERE AMBIGUOUS.

THE RECORD DISCLOSES THAT AFTER THE BIDS WERE OPENED AND EVALUATED CERTAIN QUESTIONS AROSE REGARDING THE OFFER SUBMITTED BY NORWOOD STUDIOS. IT WAS ULTIMATELY DETERMINED BY GSA THAT WHILE THE SAID BID WAS NOT TOO INFORMATIVE IN ANSWERING THE REQUIREMENTS OF PARAGRAPHS 58 AND 59 OF THE INVITATION, IT WAS TECHNICALLY RESPONSIVE. HOWEVER, THE CONTRACTING OFFICER HAD DOUBT AS TO WHETHER NORWOOD STUDIOS COULD BE ACCEPTED AS A QUALIFIED AND RESPONSIBLE CONTRACTOR UNDER THE OBLIGATIONS OF THIS PROCUREMENT.

IN VIEW OF THIS DOUBT CONSIDERATION WAS GIVEN TO THE PROVISIONS OF PARAGRAPH 1-1.709 (B) OF THE FEDERAL PROCUREMENT REGULATIONS WHICH PROVIDES THAT---

"IF A SMALL BUSINESS CONCERN HAS SUBMITTED AN OTHERWISE ACCEPTABLE BID OR PROPOSAL BUT HAS BEEN DETERMINED BY THE CONTRACTING OFFICER NOT TO BE RESPONSIBLE AS TO CAPACITY OR CREDIT, AND IF THE BID OR PROPOSAL IS TO BE REJECTED SOLELY FOR THIS REASON, (1) SBA SHALL BE NOTIFIED OF THE CIRCUMSTANCES SO AS TO PERMIT IT, IF WARRANTED, TO PROCESS A CERTIFICATE OF COMPETENCY, AND (2) AWARD SHALL BE WITHHELD, PENDING SBA ACTION, UP TO TEN WORKING DAYS AFTER SBA IS SO NOTIFIED.'

SECTION 1-1.709 (A) OF THESE REGULATIONS, WHICH MAKES SBA CERTIFICATES OF COMPETENCY CONCLUSIVE AS TO CAPACITY AND CREDIT, IS DERIVED FROM PUBLIC LAW 85-536, 72 STAT. 391, WHICH PROVIDES UNDER 15 U.S.C. 637 (B) THAT IT SHALL BE THE DUTY OF THE ADMINISTRATION AND IT IS EMPOWERED,")7) TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICIALS * * * WITH RESPECT TO THE COMPETENCY, AS TO CAPACITY AND CREDIT, OF ANY SMALL BUSINESS CONCERN * * * TO PERFORM A SPECIFIC GOVERNMENT CONTRACT.' THE ACT FURTHER PROVIDES THAT IN ANY CASE IN WHICH A SMALL BUSINESS CONCERN HAS BEEN CERTIFIED "THE OFFICERS OF THE GOVERNMENT HAVING PROCUREMENT OR PROPERTY DISPOSAL POWERS ARE DIRECTED TO ACCEPT SUCH CERTIFICATION AS CONCLUSIVE * * *.' UNDER APPLICABLE LAW AND REGULATIONS THE GENERAL SERVICES ADMINISTRATION THUS HAD NO ALTERNATIVE BUT TO SUBMIT THE MATTER TO SMALL BUSINESS ADMINISTRATION SINCE NORWOOD STUDIOS WAS A SMALL BUSINESS FIRM. RESPONSE THERETO, ON JANUARY 24, 1962, SBA CERTIFIED THE BIDDER TO BE COMPETENT, AS TO CAPACITY AND CREDIT, TO PERFORM THE SUBJECT PROCUREMENT. IN VIEW OF THE FINDING BY GSA THAT THE LOW BID WAS TECHNICALLY RESPONSIVE AND THE CERTIFICATION BY SBA THAT THE BIDDER POSSESSED ADEQUATE FACILITIES AND CREDIT TO PERFORM, WE PERCEIVE NO LEGAL BASIS UPON WHICH THE AWARD MAY BE QUESTIONED.

YOUR FINAL CONTENTION IS THAT THE INVITATION SHOULD BE CANCELLED AND THE PROCUREMENT READVERTISED BECAUSE OF THE ALLEGEDLY AMBIGUOUS PROVISIONS OF PARAGRAPH 5 THEREOF. THAT SECTION OF THE INVITATION STATES IN PERTINENT PART THAT "THE GOVERNMENT WILL USE TWO SETS OF CRITERIA IN EVALUATING BIDS --- ELIGIBILITY FACTORS AND PRICE CONSIDERATIONS. WITH RESPECT TO THE FORMER, THE GOVERNMENT RESERVES THE RIGHT TO DISQUALIFY ANY BID FOR NONRESPONSIVE OR UNSATISFACTORY ANSWERS" TO THE QUESTIONS IN THE INVITATION WHICH RELATE TO STORAGE FACILITIES, PUBLICITY AND PROMOTION PROGRAMS, AND DISTRIBUTION FACILITIES AND EXPERIENCE. WHILE IT IS STATED THEREIN THAT THE ANSWERS FURNISHED IN RESPONSE TO THE INVITATION WILL BE USED IN CONJUNCTION WITH THE QUOTED PRICES TO EVALUATE THE BIDS, IT APPEARS TO US THAT SUCH MATTERS ARE MORE CLOSELY RELATED TO THE BIDDERS RESPONSIBILITY THAN TO THE RESPONSIVENESS OF ITS BID. WHILE A TOTAL DISREGARD OF THOSE REQUIREMENTS OF THE INVITATION COULD RENDER THE BID NONRESPONSIVE, IT IS BELIEVED THAT THE ADEQUACY OF THE ANSWERS, WHEN DOUBTFUL, ARE FOR DETERMINATION BY SBA UNDER THE STATUTORY AUTHORITY PREVIOUSLY CITED.

IN VIEW OF THE FOREGOING WE FEEL THAT THE ADMINISTRATIVE ACTION WAS CORRECT AND, THEREFORE, THE AWARD OF THE CONTRACT WILL NOT BE DISTURBED.