B-162665, DEC. 19, 1967

B-162665, DEC. 19, 1967

TO LEONARD MARINE INTERIORS:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF OCTOBER 5, 1967, AND LETTER OF OCTOBER 10, 1967, PROTESTING AGAINST THE FAILURE OF THE DEPARTMENT OF THE NAVY TO MAKE AWARD OF CONTRACTS TO YOUR FIRM UNDER INVITATIONS FOR BIDS N00104-67-B-2414, N00104-67-B-2532 AND N00104-67 B-2533.

BIDS UNDER INVITATION NO. N00104-67-B-2414, COVERING 588 SWIVEL SEATS, WERE OPENED ON JUNE 30, 1967, AND YOUR FIRM WAS THE LOW BIDDER. THE CONTRACTING OFFICER REQUESTED A PRE-AWARD SURVEY TO DETERMINE THE RESPONSIBILITY OF YOUR FIRM AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-904. THAT SURVEY, DATED AUGUST 21, 1967, RECOMMENDED NO AWARD BE MADE TO YOUR COMPANY BASED ON LACK OF FINANCIAL CAPABILITY, UNSATISFACTORY PURCHASING AND SUBCONTRACTING ABILITY, POOR PAST PERFORMANCE RECORD, AND INABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE. ACCORDINGLY, THE CONTRACTING OFFICER WAS UNABLE TO DETERMINE YOU TO BE A RESPONSIBLE BIDDER. HOWEVER, SINCE YOUR FIRM IS A SMALL BUSINESS, THE MATTER WAS REFERRED, PURSUANT TO ASPR 1-705.4 TO THE SMALL BUSINESS ADMINISTRATION (SBA) TO CONSIDER ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC). BY LETTER DATED SEPTEMBER 26, 1967, THE SBA DECLINED TO ISSUE YOUR FIRM A COC ON THE GROUNDS THAT NO REASON WAS FOUND TO DISAGREE WITH NEGATIVE FINDINGS OF THE CONTRACTING OFFICER. THEREFORE, YOU WERE NOT DETERMINED TO BE A LOW RESPONSIBLE BIDDER TO WHOM AWARD COULD BE MADE UNDER ASPR 1-904.

BIDS RECEIVED PURSUANT TO INVITATION NO. N00104-67-B-2532 FOR TWENTY-FIVE FOUR-MAN CREW MESS TABLES WERE OPENED ON SEPTEMBER 15, 1967. YOUR COMPANY, THE LOW BIDDER, WAS DETERMINED TO BE NONRESPONSIBLE BY THE CONTRACTING OFFICER ON THE BASIS OF THE PRE-AWARD SURVEY MADE UNDER THE PREVIOUS INVITATION. ON SEPTEMBER 26, 1967, THE MATTER WAS AGAIN REFERRED TO THE SBA TO CONSIDER ISSUANCE OF A COC. ON NOVEMBER 2, 1967, THE SBA AGAIN DECLINED TO ISSUE YOUR FIRM A COC.

YOUR LETTER OF OCTOBER 10, 1967, PROTESTS THESE REJECTIONS OF YOUR BIDS AS NONRESPONSIBLE AND STATES THAT AT THE TIME YOU WERE BEING HELD NONRESPONSIBLE, THE SAME PROCUREMENT BRANCH ISSUED ANOTHER ORDER TO YOU FOR THE SAME MATERIAL.

WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF RESPONSIBILITY OF A CONTRACTOR IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE AGENCY AND WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR THE DETERMINATION. 37 COMP. GEN. 430. ALSO IN B-159933, NOVEMBER 18, 1966, WE STATED:

"WE HAVE CONSISTENTLY TAKEN THE POSITION THAT THE QUESTION OF THE RESPONSIBILITY OF A PROSPECTIVE GOVERNMENT CONTRACTOR IS PRIMARILY FOR CONSIDERATION AND DETERMINATION BY THE ADMINISTRATIVE AGENCY CONCERNED, OR IN THE CASE OF THE CAPACITY AND CREDIT OF A SMALL BUSINESS CONCERN, BY THE SMALL BUSINESS ADMINISTRATION, AND WE WILL NOT QUESTION SUCH DETERMINATION IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE CONCLUSION REACHED. 37 ID. 705, 711. THE COURTS HAVE ALSO ADOPTED A SIMILAR VIEW. O-BRIEN V. CARNEY, ET AL., 6 F.SUPP. 761; FRIEND V. LEE, 221 FED. 2D 96.

"THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT. WHILE SUCH JUDGMENT SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICIALS INVOLVED SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE BRUNT OF ANY DIFFICULTY EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF CAPACITY OR CREDIT AND THEY MUST MAINTAIN THE DAY-TO-DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE ON THAT OF THE CONTRACTING OFFICIALS IN ANY CASE IN WHICH THERE APPEARS TO BE A SUBSTANTIAL BASIS FOR THE ACTION OF THOSE OFFICIALS.' FURTHER, WE HAVE HELD THE REFUSAL BY THE SBA TO ISSUE A COC MUST BE VIEWED AS AN AFFIRMATION OF THE CONTRACTING OFFICER'S NEGATIVE DETERMINATION. 43 COMP. GEN. 228; 39 ID. 705; B-146205, SEPTEMBER 20, 1961; AND B 145983, JUNE 26, 1961. NOR IS IT THE FUNCTION OF OUR OFFICE TO REVIEW SBA DETERMINATIONS OR REQUIRE ISSUANCE OF A COC. B-153446, MAY 8, 1964.

THE FACT THAT YOUR COMPANY MAY BE PERFORMING UNDER A SIMILAR PROCUREMENT WITH THE SAME PROCUREMENT BRANCH IS NOT CONTROLLING IN DETERMINING YOUR RESPONSIBILITY. WHILE CONSISTENCY IN DETERMINATIONS OF THE RESPONSIBILITY OF AN INDIVIDUAL CONTRACTOR IS DESIRABLE, THE CONTROLLING FACTOR IN EACH DETERMINATION IS THE BIDDER'S APPARENT ABILITY TO COMPLY WITH THE PARTICULAR REQUIREMENTS SET OUT IN THE SPECIFIC CONTRACT TO BE AWARDED. IN VIEW OF THE DISCRETION OF THE CONTRACTING OFFICER IN EACH CASE, WE HAVE HELD THAT A DETERMINATION OF RESPONSIBILITY BY ONE CONTRACTING OFFICER IS NOT CONTROLLING UPON ANOTHER. 39 COMP. GEN. 468. SIMILARLY, THE NEGATIVE DETERMINATIONS IN THE INSTANT PROCUREMENTS DO NOT DICTATE THAT YOUR COMPANY MUST BE HELD NONRESPONSIBLE IN FUTURE PROCUREMENTS.

ACCORDINGLY, FOR THE REASONS SET FORTH, WE FIND NO LEGAL BASIS TO OBJECT TO THE REJECTION BY THE DEPARTMENT OF THE NAVY, SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, OF YOUR BIDS UNDER INVITATIONS N00104 -67-B-2414 AND N00104-67-B-2532. THE REJECTION OF YOUR BID UNDER INVITATION FOR BIDS N00104-67-B-2533 WAS CONSIDERED IN OUR DECISION B- 162438, OCTOBER 18, 1967, AND PURSUANT TO YOUR REQUEST IS NOW BEING RECONSIDERED.