B-164739, SEPT. 9, 1968

B-164739, SEPT. 9, 1968

TO FIELD SERVICE INTERNATIONAL:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 28, 1968, AND LETTER OF JULY 1, 1968, TO THE UNITED STATES AIR FORCE (USAF) ACADEMY PROTESTING THE REJECTION OF YOUR BID UNDER INVITATION NO. F05611-68-B-0109 ISSUED ON MAY 6, 1968, BY THE AIR FORCE.

BIDS WERE REQUESTED FOR FURNISHING REPAIR AND MAINTENANCE OF THE VARIOUS PUBLIC ADDRESS, RECORDING AND ALARM SYSTEMS USED AT THE USAF ACADEMY FOR THE PERIOD JULY 1, 1968, THROUGH JUNE 30, 1969. INCLUDED WAS PREVENTIVE MAINTENANCE AS WELL AS EMERGENCY REPAIRS. THE PROCUREMENT WAS A 100- PERCENT SET-ASIDE FOR SMALL BUSINESS CONCERNS.

TWO BIDS WERE RECEIVED AND OPENED ON JUNE 6, 1968. YOUR AGGREGATE BID WAS $708 LOWER THAN THE BID OF CRAFTSMAN ELECTRONIC SERVICE. BY LETTER DATED JUNE 7, 1968, THE CONTRACTING OFFICER REQUESTED THAT A PREAWARD SURVEY BE MADE OF YOUR FIRM AND, BASED UPON SUCH SURVEY, THE CONTRACTING OFFICER DETERMINED YOUR FIRM TO BE NONRESPONSIBLE WITHIN THE MEANING OF ASPR 1-903.2 (A) (II). ON JUNE 20, 1968, THE CONTRACTING OFFICER REQUESTED THE USING ACTIVITY TO SUBMIT A RECOMMENDATION AS TO THE POSSIBILITY OF POSTPONING AWARD UNTIL JULY 15, 1968, IN ORDER TO REFER THE MATTER OF YOUR NONRESPONSIBILITY TO THE SMALL BUSINESS ADMINISTRATION (SBA). IN RESPONSE THERETO, THE CONTRACTING OFFICER WAS ADVISED THAT THE REQUIRED SERVICES MUST COMMENCE ON JULY 1, 1968, AND THAT ANY DELAY AFTER THAT DATE WOULD SERIOUSLY HAMPER THE INTERESTS OF THE GOVERNMENT. ACCORDINGLY, PURSUANT TO ASPR 1-705.4 (C) (IV), THE CONTRACTING OFFICER DETERMINED THAT AWARD SHOULD BE MADE WITHOUT REFERRING THE MATTER TO THE SBA FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY. ON JUNE 21, 1968, AWARD WAS MADE TO CRAFTSMAN ELECTRONIC SERVICE.

IN YOUR LETTER OF JULY 1, 1968, YOU STATE THAT THE PREAWARD SURVEY "WAS CONDUCTED WITH HASTE, INSUFFICIENT VERIFICATION OF MANY FACTORS, AND USE OF INCOMPETENT PERSONNEL.' IT IS PROVIDED AT 10 U.S.C. 2305 (C) THAT CONTRACT AWARDS PURSUANT TO FORMAL ADVERTISING SHALL BE MADE TO "THE RESPONSIBLE BIDDER" WHOSE BID IS RESPONSIVE AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES. IN IMPLEMENTATION OF THE CITED LAW, ASPR 1-902 REQUIRES THE AWARD OF CONTRACTS TO RESPONSIBLE CONTRACTORS ONLY. IT IS WELL SETTLED THAT THE DETERMINATION OF A BIDDER'S RESPONSIBILITY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION, AND OUR OFFICE HAS CONSISTENTLY ADHERED TO THE RULE THAT THE ADMINISTRATIVE DETERMINATION WILL NOT BE QUESTIONED UNLESS ARBITRARY, CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE. 38 COMP. GEN. 131; 37 ID. 430, 435.

IN THE INSTANT CASE THE ADMINISTRATIVE OFFICE FOUND THAT YOUR FIRM AND ITS PARENT COMPANY, AERO-MARINE ELECTRONICS, CONSISTED OF THREE PARTNERS ENGAGED IN SELLING AND REPAIRING RADIO AND NAVIGATION EQUIPMENT FOR LIGHT AIRCRAFT. NEITHER ORGANIZATION HAD ANY EMPLOYEES. HOWEVER, IT WAS FOUND THAT YOU PLANNED TO HAVE A TECHNICIAN RESIDING IN OHIO TO PERFORM THE CONTRACT AND WOULD EMPLOY ADDITIONAL PERSONNEL IF NECESSARY. FURTHER, THE FACT THAT YOUR FIRM WAS LOCATED SOME 1,800 MILES FROM THE ACADEMY WAS CONSIDERED SERIOUS IN VIEW OF THE NECESSITY TO KEEP THE HOSPITAL AND FIVE ALARM SYSTEMS OPERATIONAL AT ALL TIMES. IN VIEW OF THE ABOVE FINDINGS, WE CANNOT SAY THAT THE DETERMINATION REGARDING YOUR NONRESPONSIBILITY WAS EITHER ARBITRARY OR CAPRICIOUS. CONSEQUENTLY, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID.

ORDINARILY, THE CONTRACTING OFFICER, AFTER DETERMINING YOU WERE NOT A RESPONSIBLE BIDDER, WOULD HAVE REFERRED THE MATTER TO SBA FOR ITS DETERMINATION AS TO THE ISSUANCE OF A CERTIFICATE OF COMPETENCY. HOWEVER, THIS PROCEDURE TAKES 15 DAYS AND IT WAS THEN JUNE 20, 1968. SINCE THE CONTRACTING OFFICER WAS ADVISED THAT AWARD MUST BE MADE SO THAT A COMPETENT CONTRACTOR WOULD BE AVAILABLE BY JULY 1, 1968, HE COMPLIED WITH THE REQUIREMENTS OF ASPR 1-705.4 (C) (IV) AND DID NOT REFER THE MATTER TO SBA. IN THE CIRCUMSTANCES WE SEE NO LEGAL OR PROPER BASIS FOR OBJECTING TO HIS ACTION.