B-160451, JAN. 13, 1967

B-160451, JAN. 13, 1967

TO U.S. STAMPING AND MFG. CORP.:

YOU HAVE PROTESTED AGAINST THE REJECTION OF YOUR COMPANY'S $504,988.80 BID UNDER INVITATION FOR BIDS NO. DSA100-67-B-0158, ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION SOLICITED BIDS FOR THE MANUFACTURE AND DELIVERY OF 4,214,400 9-INCH ALUMINUM TENT PINS. WHEN THE BIDS WERE OPENED ON SEPTEMBER 6, 1966, YOUR FIRM WAS THE APPARENT LOW BIDDER. ON SEPTEMBER 8, 1966, IT WAS REQUESTED TO FURNISH PROOF OF ITS FINANCIAL CAPACITY. THEREAFTER, BY TELEGRAM DATED SEPTEMBER 21, 1966, YOU ADVISED THE PROCURING AGENCY THAT YOU WERE IN THE PROCESS OF SENDING LETTERS OF COMMITMENTS FOR $100,000. SUCH LETTERS WERE NEVER RECEIVED. SUBSEQUENT COMMUNICATIONS WITH YOUR FIRM AS TO ITS FINANCIAL CAPACITY WERE ANSWERED WITH ASSURANCES BY YOU THAT YOU WOULD FURNISH THE NECESSARY PROOF AS TO YOUR FINANCIAL CAPACITY. HOWEVER, THE EVIDENCE REQUESTED WAS NEVER FURNISHED AS PROMISED.

ON OCTOBER 3, 1966, A REPORT OF FINANCIAL SURVEY WAS FURNISHED TO THE CONTRACTING OFFICER INDICATING THAT, SINCE NO RESPONSE HAD BEEN RECEIVED FROM YOUR COMPANY'S BANK, YOUR FIRM APPARENTLY COULD NOT OBTAIN FINANCING THROUGH NORMAL CHANNELS AND ITS FINANCIAL ABILITY TO PERFORM THE AWARD WAS NOT APPROVED. BASED UPON THE FINANCIAL SURVEY, THE CONTRACTING OFFICER PROPOSED REJECTING THE BID FOR LACK OF FINANCIAL RESPONSIBILITY. REQUIRED BY PROCUREMENT PROCEDURES, ON OCTOBER 10 THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) SO THAT IT COULD CONSIDER WHETHER TO ISSUE A CERTIFICATE OF COMPETENCY. HOWEVER, THE RECORD SHOWS THAT BY LETTER DATED OCTOBER 12, 1966, GEORGE P. GASBARRE, PRESIDENT OF YOUR FIRM, INFORMED THE SBA THAT YOUR COMPANY DID NOT WISH TO FILE FOR A CERTIFICATE OF COMPETENCY. BY LETTER OF THE SAME DATE, THE CONTRACTING OFFICER WAS ADVISED BY SBA THAT SINCE YOUR FIRM ELECTED NOT TO FILE AN APPLICATION FOR A CERTIFICATE OF COMPETENCY ON THE SUBJECT PROCUREMENT, THE SBA WAS CLOSING ITS FILE ON THE CASE WITHOUT FURTHER ACTION.

SUBSEQUENT COMMUNICATIONS BY YOU WITH THE CONTRACTING OFFICER CULMINATED IN UNACCEPTABLE, UNCONFIRMED AGREEMENTS AS TO YOUR COMPANY'S FINANCIAL CAPACITY. ACCORDINGLY, THE CONTRACTING OFFICER REJECTED YOUR COMPANY'S BID FOR FAILURE TO FURNISH EVIDENCE OF ADEQUATE FINANCIAL RESOURCES, AND AWARD WAS MADE TO EISEN METAL PRODUCTS COMPANY.

UNDER 10 U.S.C. 2305 (C), AWARDS AFTER FORMAL ADVERTISING ARE REQUIRED TO BE MADE TO THAT ,RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.' A RESPONSIBLE BIDDER HAS BEEN DEFINED AS ONE WHO POSSESSES, AMONG OTHER ATTRIBUTES, THE FINANCIAL CAPACITY TO PERFORM. SEE 37 COMP. GEN. 703, 704, AND CITATIONS THEREIN.

THE MATTER WHETHER A BIDDER IS A RESPONSIBLE PROSPECTIVE CONTRACTOR IS ONE PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY, AND WE DO NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY IN THE ABSENCE OF CONVINCING EVIDENCE OF FRAUD, COLLUSION, BAD FAITH, OR LACK OF PROPER FACTUAL BASIS. SEE 37 COMP. GEN. 703, 705, WHERE A BIDDER DECLINED OR FAILED TO FURNISH INFORMATION TO THE SBA FOR CERTIFICATE OF COMPETENCY PURPOSES, AND WAS THEREAFTER DETERMINED TO BE NONRESPONSIBLE. SEE, ALSO, B-154865, SEPTEMBER 14, 1964.

THEREFORE, IN VIEW OF THE RECORD BEFORE US SHOWING THE ATTEMPTS MADE BY THE CONTRACTING AGENCY TO ASCERTAIN YOUR COMPANY'S FINANCIAL CAPACITY AND AS YOUR FIRM DID NOT AVAIL ITSELF OF THE OPPORTUNITY AFFORDED BY LAW AND REGULATION TO HAVE SBA CONSIDER THE MATTER OF ITS COMPETENCY TO PERFORM THE SUBJECT PROCUREMENT, WE FIND NO LEGAL BASIS TO QUESTION THE REJECTION OF YOUR BID UNDER THE SUBJECT PROCUREMENT.