B-156386, JUN. 17, 1965

B-156386, JUN. 17, 1965

TO MR. JOHN RAMFIELD:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1965, PROTESTING THAT AWARDS WERE NOT MADE TO YOUR COMPANY UNDER INVITATIONS FOR BIDS AMC (A) 36-038-65-435 (SP) AND -436 (SP) DESPITE THE FACT THAT IT WAS THE LOW BIDDER.

BOTH THE INVITATIONS WERE ISSUED ON NOVEMBER 30, 1964, FOR SCHEDULED OPENING AT 11 A.M., .S.T., ON JANUARY 4, 1965. INVITATION -435 (SP) WAS FOR 266 TUBE INDICATOR ASSEMBLIES FOR DELIVERY F.O.B. DESTINATION, 116 TO U.S. ARMY DEPOT, LETTERKENNY AND 150 TO U.S. ARMY DEPOT, RED RIVER. INVITATION -436 (SP) WAS FOR 32 NETWORK "E" ASSEMBLIES FOR DELIVERY F.O.B. DESTINATION U.S. ARMY DEPOT, RED RIVER. THE DELIVERY SCHEDULE UNDER THE FIRST CITED INVITATION WAS FOR 116 UNITS 90 DAYS AFTER DATE OF AWARD AND 150 UNITS 120 DAYS AFTER AWARD. THE DELIVERY SCHEDULE UNDER THE SECOND INVITATION WAS FOR THE TOTAL QUANTITY OF 32 UNITS WITHIN 90 DAYS AFTER DATE OF AWARD. SIX BIDS WERE RECEIVED UNDER INVITATION -435 (SP) AND FIVE BIDS WERE RECEIVED UNDER INVITATION -436 (SP). YOUR COMPANY WAS THE APPARENT LOW BIDDER UNDER BOTH INVITATIONS.

COMPLETE PREAWARD SURVEYS OF YOUR COMPANY WERE REQUESTED FROM THE ST. LOUIS PROCUREMENT DISTRICT. THAT DISTRICT'S CONTRACTING OFFICER, UNDER DATE OF JANUARY 29, 1965 (PREAWARD SURVEY REPORT DATED JANUARY 22, 1965) DETERMINED THAT YOUR COMPANY WAS NOT A RESPONSIBLE BIDDER. THIS DETERMINATION WAS MADE REGARDING BOTH INVITATIONS FOR THE REASONS THAT YOUR COMPANY'S TECHNICAL ABILITY WAS UNSATISFACTORY, THAT IT DOES NOT HAVE ADEQUATE TECHNICAL PERSONNEL AND THAT TO TRAIN PERSONNEL WOULD JEOPARDIZE REQUIRED DELIVERY. IT WAS FURTHER DETERMINED THAT YOUR COMPANY'S PRODUCTION AND INSPECTION ABILITIES WERE UNSATISFACTORY FOR THE SAME REASONS, NAMELY, THAT IT DID NOT HAVE ADEQUATE PERSONNEL AND EQUIPMENT. FURTHER, YOUR PLANT FACILITIES AND EQUIPMENT WERE NOT SUITABLE FOR PRODUCING THESE ITEMS AND YOU DID NOT HAVE A SCHEDULE OF EQUIPMENT REQUIRED OR A PLAN FOR ITS PURCHASE OR LEASE. BASED ON THE PREAWARD SURVEY REPORTS THE CONTRACTING OFFICER, UNDER THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-904.1, DETERMINED THAT YOUR COMPANY WAS NOT A RESPONSIBLE BIDDER UNDER EITHER INVITATION. IT IS REPORTED FURTHER THAT THE SMALL BUSINESS ADMINISTRATION (SBA) REFUSED TO ISSUE A CERTIFICATE OF COMPETENCY TO YOUR COMPANY IN CONNECTION WITH INVITATION -435 (SP). PURSUANT TO ASPR 1-705.4 (B) (II), THE CONTRACTING OFFICER DID NOT ELECT TO REFER TO THE SBA THE MATTER OF YOUR COMPANY'S RESPONSIBILITY REGARDING ITS BID UNDER INVITATION -436 (SP).

THE RECORD SHOWS FURTHER THAT YOUR COMPANY WAS CONSIDERED DELINQUENT AS OF APRIL 13, 1965, IN MEETING DELIVERY SCHEDULES UNDER CONTRACT DA-36-038- 2368 (W) FOR TWO ITEMS OF RELATIVELY SIMPLE INSTALLATION KITS. IT IS REPORTED THAT THE MISSILE COMMAND HAS ALSO CONSIDERED YOUR COMPANY NONRESPONSIBLE UNDER THREE BID INVITATIONS AND THAT THE SBA DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY IN ALL THREE OF THESE CASES.

THE MATTER OF YOUR FIRM'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR UNDER THE INVITATIONS BECAME ONE SOLELY FOR RESOLUTION BY THE PROCUREMENT ACTIVITY IN VIEW OF THE REFUSAL OF THE SBA TO ISSUE A CERTIFICATE OF COMPETENCY. WE HAVE HELD THAT SUCH REFUSAL MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE BIDDER CONCERNED. WHEN THE ISSUANCE OF A CERTIFICATE OF COMPETENCY IS DENIED THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED.

IN THE CIRCUMSTANCES NO LEGAL BASIS EXISTS FOR OBJECTION BY OUR OFFICE TO THE REJECTION OF YOUR BIDS FOR THE REASONS STATED. SEE 37 COMP. GEN. 430, 435.