B-167608, SEP. 22, 1969

B-167608, SEP. 22, 1969

BID PROTEST - BIDDER RESPONSIBILITY DECISION TO PROTEST OF AMERAC INCORPORATED AGAINST AWARD TO UNITED TELECONTROL ELECTRONICS, INC. FOR FURNISHING A MICROWAVE SIGNAL GENERATOR AND MEASURING DEVICE TO ARMY ELECTRONICS COMMAND. DETERMINATION THAT LOW BIDDER WAS NOT RESPONSIBLE ON THE BASIS OF CERTAIN DEFICIENCIES SPECIFIED BY A CONTRACTOR EVALUATION BOARD IS NOT SUBJECT TO QUESTION. FACT THAT SMALL BUSINESS ADMINISTRATION REFUSED TO ISSUE CERTIFICATE OF COMPETENCY IS PERSUASIVE IN THE BIDDER'S RESPONSIBILITY. HENCE PROTEST IS FOR DENIAL.

TO AMERAC INCORPORATED:

WE FURTHER REFER TO YOUR TELEGRAM OF JULY 30, 1969, PROTESTING AGAINST THE AWARD OF A CONTRACT TO UNITED TELECONTROL ELECTRONICS, INC., UNDER INVITATION FOR BIDS DAAB05-69-B-0351, ISSUED BY THE ARMY ELECTRONICS COMMAND, PHILADELPHIA, PENNSYLVANIA.

THE ADMINISTRATIVE REPORT DATED SEPTEMBER 4, 1969, FROM THE ACTING DIRECTOR OF PROCUREMENT AND PRODUCTION, HEADQUARTERS UNITED STATES ARMY MATERIEL COMMAND, INDICATES THAT THE SUBJECT INVITATION, DATED MARCH 17, 1969, SOLICITED BIDS FOR FURNISHING 58 AN/UPM-60) ( RADAR TEST SETS AND REQUIRED DELIVERY OF A FIRST ARTICLE TEST REPORT 210 DAYS AFTER DATE OF THE AWARD DOCUMENT FOLLOWED BY DELIVERY OF PRODUCTION QUANTITIES 330, 360, 390 AND 420 DAYS AFTER DATE OF AWARD DOCUMENT. BIDS WERE OPENED ON APRIL 16, 1969, AND IT WAS DETERMINED THAT YOUR FIRM SUBMITTED THE LOWEST BID. IN ACCORDANCE WITH PRESCRIBED PROCEDURES, THE CONTRACTING OFFICER REQUESTED THE CONTRACTOR EVALUATION BOARD, UNITED STATES ARMY ELECTRONICS COMMAND, TO CONDUCT A PREAWARD SURVEY TO DETERMINE THE RESPONSIBILITY OF YOUR FIRM TO PERFORM THE CONTRACT. ON THE BASIS OF ITS INVESTIGATION, THE CONTRACTOR EVALUATION BOARD RECOMMENDED THAT YOUR FIRM BE FOUND NONRESPONSIBLE. AS STATED IN ITS REPORT OF MAY 28, 1969, THIS RECOMMENDATION WAS BASED ON THE FOLLOWING DEFICIENCIES:

"A. TECHNICAL CAPABILITY - THE AN/UPM-60 IS A COMPLEX MICROWAVE SIGNAL GENERATOR AND MEASURING DEVICE THAT IS USED TO TEST THE PERFORMANCE OF RADAR RECEIVERS AND TRANSMITTERS. IT OPERATES IN THE FREQUENCY RANGE OF 15,750 TO 16,250 MEGACYCLES AND CAN MEASURE RF POWER IN THE RANGE PLUS 6DBM TO PLUS 30DBM AND ODBM TO - 90DBM WITH A PLUS OR MINUS LDB ACCURACY. * * * (AMERAC) WILL REQUIRE 60 DAYS TO PROCURE MATERIALS TO FABRICATE THE ITEM AND APPROXIMATELY 60 DAYS TO PERFORM FIRST ARTICLE TESTS. * * * (AMERAC) HAS NOT DEMONSTRATED ANY PAST OR CURRENT TECHNICAL EXPERIENCE IN THE PRODUCTION OF EQUIPMENT EQUAL TO OR GREATER IN COMPLEXITY THAN THE AN/UPM-60. IT IS THE OPINION OF THIS BOARD THAT THE CONTRACTOR DOES NOT POSSESS THE REQUISITE TECHNICAL ABILITY TO FABRICATE, TEST, AND SUBMIT A FIRST ARTICLE TEST REPORT IN THE TIME FRAMES REQUIRED, DUE TO THEIR LIMITED EXPERIENCE IN PRODUCTION OF COMPLEX MICROWAVE EQUIPMENT.

"B. QUALITY ASSURANCE CAPABILITY - * * * (AMERAC-S) PRESENT QUALITY ASSURANCE MEASURES WAS DETERMINED TO BE INADEQUATE DUE TO THE LACK OF INSPECTION INSTRUCTIONS, EQUIPMENT, AND PERSONNEL TO STAFF AN ACCEPTABLE INSPECTION SYSTEM. THEY DID NOT HAVE THE SPECIFICATIONS CITED IN THE SOLICITATION AND COULD ONLY STATE THAT THEY WERE ON ORDER. A REVIEW OF THE INSPECTION RECORDS MAINTAINED BY * * * (AMERAC) REVEALED DEFICIENCIES FOUND ON MATERIALS BUT NO EVIDENCE OF THE NATURE OF ANY ACTION TAKEN TO CORRECT THE DEFICIENCIES. IT SHOULD ALSO BE NOTED, THAT * * * (AMERAC-S) QUALITY ASSURANCE CAPABILITY DOES NOT INCLUDE ANY PROCEDURES OR MECHANICAL MEASURING EQUIPMENT WHICH WILL BE REQUIRED FOR THE PROPOSED AWARD.

"C. PERFORMANCE RECORD - * * * (AMERAC) HAS FOUR (4) CONTRACTS, TWO (2) OF WHICH ARE DUE FOR DELIVERY AND BOTH ARE NOW INEXCUSABLY DELINQUENT. THE CONTRACTS ARE LISTED BELOW.

"/1) DAAB05-68-C-2442 (WAVEMETER) HAS BEEN DELINQUENT SINCE NOVEMBER 1968 DUE TO THE CONTRACTOR'S FAILURE TO PRODUCE AN ACCEPTABLE FIRST ARTICLE. FIRST ARTICLE APPROVAL WAS OBTAINED ON 1 APRIL 1969.

"/2) DAAH-01-69-C-1308 (OSCILLATOR, R.F.) HAS BEEN INEXCUSABLY DELINQUENT SINCE DECEMBER 1968 DUE TO * * * (AMERAC-S) INABILITY TO SUBMIT AN ACCEPTABLE FIRST ARTICLE. * * * (AMERAC) HAS SUBMITTED A FIRST ARTICLE BUT AS OF THE DATE OF THIS REPORT IT HAS NOT BEEN APPROVED BY THE GOVERNMENT.

"D. ABILITY TO MEET REQUIRED SCHEDULE - BASED ON * * * (AMERAC-S) PREVIOUS POOR PERFORMANCE RECORD AND THE DEFICIENCIES CITED ABOVE IT IS APPARENT THAT * * * (AMERAC) DOES NOT HAVE THE ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE.'

ON JULY 11, 1969, THE CONTRACTING OFFICER ADOPTED THE BOARD'S RECOMMENDATION AND, IN ACCORDANCE WITH PARAGRAPH 1-705.4 (C) OF THE ARMED SERVICES PROCUREMENT REGULATION, THE SMALL BUSINESS ADMINISTRATION (SBA) WAS REQUESTED ON JUNE 18, 1969, TO DETERMINE YOUR CAPACITY AND CREDIT FOR CERTIFICATE OF COMPETENCY PURPOSES. BY LETTERS DATED JULY 9, 1969, THE AREA ADMINISTRATOR, NORTHEASTERN AREA OFFICE, SBA, BOSTON, ADVISED THE CONTRACTING OFFICER AND YOUR FIRM THAT AFTER A THOROUGH REVIEW OF ALL AVAILABLE DATA, IT HAD DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY. THEREAFTER, ON JULY 15, 1969, AWARD WAS MADE TO UNITED TELECONTROL ELECTRONICS, INC., AS THE LOWEST RESPONSIBLE BIDDER UNDER THE INVITATION.

IN VIEW OF THE FOREGOING CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR QUESTIONING THE AWARD. NOTHING IN THE RECORD BEFORE US INDICATES THAT THE CONTRACTING OFFICER'S DETERMINATION WAS MADE IN BAD FAITH OR WITHOUT A REASONABLE FACTUAL BASIS. MOST SIGNIFICANTLY, THE REFUSAL OF THE SBA TO ISSUE A CERTIFICATE OF COMPETENCY MUST BE REGARDED AS PERSUASIVE ON THE QUESTION OF A BIDDER'S RESPONSIBILITY. 39 COMP. GEN. 705. SUCH REFUSAL IS, IN EFFECT, AN AFFIRMATION OF THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY. MOREOVER, WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF THE SBA OR TO COMPEL THE ISSUANCE OF A CERTIFICATE OF COMPETENCY. 47 COMP. GEN. 360.