B-159012, SEP. 13, 1966

B-159012, SEP. 13, 1966

TO THE SECRETARY OF THE INTERIOR:

THIS REFERS TO THE PROTEST OF DAVID NORMAN BURNS, ESQUIRE, JACKSON HOLE, WYOMING, PROTESTING IN BEHALF OF MR. EUGENE WALKER, D/B/A WALKER BROTHERS, JACKSON, WYOMING, AGAINST THE AWARD OF A CONTRACT TO MR. DAN ROBERTSON, JACKSON, WYOMING, UNDER NATIONAL PARK SERVICE INVITATION FOR BIDS NO. 16- 10-66, WHICH MATTER WAS THE SUBJECT OF A REPORT DATED MAY 16, 1966, FROM MR. C. P. MONTGOMERY, ASSISTANT DIRECTOR, NATIONAL PARK SERVICE, AND A REPORT DATED AUGUST 4, 1966, FROM DEPUTY ASSISTANT SECRETARY OF THE INTERIOR, MR. GEORGE E. ROBINSON.

THE RECORD SHOWS THAT THE INVITATION WAS ISSUED ON MARCH 22, 1966, COVERING THE STRINGLINING, SPOTTING, TAGGING AND TREATMENT OF BEETLE INFESTED LODGE POLE PINE TREES IN GRAND TETON NATIONAL PARK, WYOMING. THE INVITATION STATED THAT WORK WOULD COMMENCE ABOUT MAY 15, 1966, AND THAT 48 CALENDAR DAYS WOULD BE ALLOWED FOR COMPLETION OF THE WORK. COMPLETION OF THE PROJECT COULD THEREBY BE EXPECTED BY JULY 2, 1966.

BIDS WERE OPENED ON APRIL 6, 1966, AND WALKER BROTHERS WAS THE LOW BIDDER ON EACH OF THE FOUR CONTRACT UNITS. EACH CONTRACT UNIT WAS A DESIGNATED SEPARATE AREA OF THE PARK CONTAINING SPECIFIED NUMBERS OF INFESTED TREES. ITEM 8 OF THE INSTRUCTIONS TO BIDDERS PROVIDED AS FOLLOWS:

"8. AWARD OF CONTRACT.--- * * *

"/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID, UNLESS THE BIDDER QUALIFIES HIS BID BY SPECIFIC LIMITATIONS.'

ON A CONTINUATION SHEET OF THE INSTRUCTIONS TO BIDDERS (PAGE 6), IT WAS FURTHER PROVIDED THAT:

"THE BIDDER MAY QUOTE ON ONE OR MORE CONTRACT UNITS. NO MORE THAN ONE CONTRACT UNIT WILL BE AWARDED A BIDDER UNLESS THE BIDDER CAN SATISFACTORILY DEMONSTRATE HIS ABILITY TO PERFORM THE QUANTITY OF WORK. AWARD WILL BE MADE ACCORDING TO THE MOST ADVANTAGEOUS PRICE FOR THE VERNMENT.'

THE ASSISTANT DIRECTOR OF THE NATIONAL PARK SERVICE STATES IN HIS REPORT:

"3. WALKER BROTHERS WERE LOW BIDDERS ON ALL FOUR ITEMS. THE MOST ADVANTAGEOUS PRICE FOR THE GOVERNMENT WOULD HAVE BEEN OBTAINED BY AWARDING ALL FOUR UNITS TO THE LOW BIDDER. IT WAS SELF EVIDENT THAT HE WAS NOT EQUIPPED TO PROCEED ON THIS BASIS, AND THAT IDEA WAS CONSEQUENTLY REJECTED. THE SAME REASONING HELD IN THE AWARD OF THREE UNITS TO WALKER BROTHERS.'

THE MOST ADVANTAGEOUS PRICE TO THE GOVERNMENT BY AWARD OF TWO UNITS TO ONE BIDDER WOULD HAVE BEEN OBTAINED BY AWARDING UNITS 1 AND 4 TO WALKER BROTHERS, AND UNITS 2 AND 3 TO THE SECOND LOW BIDDERS ON THOSE PARTICULAR UNITS. ACCORDING TO THE ADMINISTRATIVE REPORT WALKER BROTHERS WAS UNWILLING TO ACCEPT AWARD OF UNITS 1 AND 4, AND REQUESTED AWARD OF UNITS 1 AND 3. THE DEPUTY ASSISTANT SECRETARY STATES THAT AN "INQUIRY" CONFIRMED THE FACT THAT HE WAS UNABLE TO ACCOMPLISH THIS MUCH WORK.

THE FEDERAL PROCUREMENT REGULATIONS, SUBPART 1-1.7 EQ SEQ. "SMALL BUSINESS CONCERNS," PROVIDE:

"S1-1.708-1 GENERAL.

"PURSUANT TO AUTHORITY OF THE SMALL BUSINESS ACT (15 U.S.C. 637/B) (7), SBA IS EMPOWERED TO CERTIFY TO GOVERNMENT PROCUREMENT OFFICERS THE COMPETENCY AS TO CAPACITY AND CREDIT OF ANY SMALL BUSINESS CONCERN OR GROUP OF SUCH CONCERNS TO PERFORM A SPECIFIC GOVERNMENT CONTRACT. AS USED IN THIS SECTION,"CAPACITY" MEANS THE OVERALL ABILITY OF A PROSPECTIVE SMALL BUSINESS CONTRACTOR TO MEET QUALITY, QUANTITY, AND TIME REQUIREMENTS OF A PROPOSED CONTRACT AND INCLUDES ABILITY TO PERFORM, ORGANIZATION, EXPERIENCE, TECHNICAL KNOWLEDGE, SKILLS, "KNOW HOW," TECHNICAL EQUIPMENT, AND FACILITIES.

"S1-1.708-2 APPLICABILITY AND PROCEDURE.

"/A) IF A SMALL BUSINESS CONCERN HAS SUBMITTED AN OTHERWISE ACCEPTABLE BID OR PROPOSAL BUT HAS BEEN FOUND BY THE CONTRACTING OFFICER NOT TO BE RESPONSIBLE AS TO CAPACITY OR CREDIT, AND IF THE BID OR PROPOSAL IS TO BE REJECTED FOR THIS REASON ALONE, SBA SHALL BE NOTIFIED OF THE CIRCUMSTANCES SO AS TO PERMIT IT TO ISSUE A CERTIFICATE OF COMPETENCY, AND AWARD SHALL BE WITHHELD PENDING EITHER SBA ISSUANCE OF A CERTIFICATE OF COMPETENCY OR THE EXPIRATION OF FIFTEEN WORKING DAYS AFTER SBA IS SO NOTIFIED, WHICHEVER IS EARLIER, SUBJECT TO THE FOLLOWING:

"/1) THIS PROCEDURE IS NOT MANDATORY WHERE AWARD MUST BE MADE WITHOUT DELAY AND THE CONTRACTING OFFICER INCLUDES IN THE CONTRACT FILE A STATEMENT SIGNED BY HIM WHICH JUSTIFIES IMMEDIATE ACTION. A COPY OF THE STATEMENT SHALL BE FURNISHED THE SBA REPRESENTATIVE.'

WHILE WE FULLY APPRECIATE THAT TIME WAS OF THE ESSENCE IN AWARDING CONTRACTS ON THIS PROJECT BECAUSE THE INSECTS USUALLY LEAVE THE TREES IN THE EARLY PART OF JULY, AND THE CONTRACTORS NEEDED SOME LEAD TIME TO BEGIN WORK ON MAY 15, 1966, THE RECORD CLEARLY INDICATES THAT THERE WAS ADEQUATE TIME TO SUBMIT THE QUESTION OF WALKER BROTHERS' FINANCIAL RESPONSIBILITY AND THE QUESTION OF THEIR CAPACITY TO SBA BEFORE MAKING AWARD. BIDS WERE OPENED ON APRIL 6, 1966, AND AWARD WAS NOT MADE UNTIL MAY 2, 1966, THEREBY PROVIDING ADEQUATE TIME FOR OBTAINING A CERTIFICATE OF COMPETENCY RULING FROM SBA.

SINCE THE WORK INVOLVED HAS BEEN COMPLETED, THERE IS NO ACTION THIS OFFICE CAN TAKE WITH RESPECT TO THE AWARDS MADE. HOWEVER, INSTRUCTIONS SHOULD BE GIVEN TO THE END THAT IN THE FUTURE APPLICABLE REGULATIONS WILL BE COMPLIED WITH WHEN THE QUESTION OF A BIDDER'S CAPACITY AND CREDIT IS AT ISSUE IN DETERMINING AWARD.