B-170103, AUG. 26, 1970

B-170103, AUG. 26, 1970

BID PROTEST -- BIDDER RESPONSIBILITY DENIAL OF PROTEST AGAINST REJECTION OF LOW BID FOR FURNISHING FUEL AND OIL SERVICE FOR AIRCRAFT ON BASIS OF BIDDER'S NONRESPONSIBILITY. LOW BIDDER WHO WAS DETERMINED TO LACK RESPONSIBILITY ON BASIS OF INFORMATION FROM CREDIT REFERENCE AND WHO WAS DENIED A CERTIFICATE OF COMPETENCY MUST HAVE PROTEST AGAINST REJECTION DENIED SINCE REFUSAL OF SBA TO ISSUE COC AFFIRMS CONTRACTING OFFICER'S DETERMINATION AND COMPTROLLER GENERAL DOES NOT DISTURB SUCH DETERMINATION WHEN, AS HERE, IT IS SUPPORTED BY COMPETENT EVIDENCE.

TO HELICAB AIRWAYS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 19, 1970, PROTESTING THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER INVITATION FOR BIDS (IFB) NO. DABC09-70-B-0177, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT BENNING, GEORGIA, ON APRIL 15, 1970.

THE SUBJECT INVITATION WAS ISSUED FOR SERVICES AND EQUIPMENT TO REFUEL/DEFUEL AND OIL SERVICE AIRCRAFT AT LAWSON ARMY AIRFIELD, FORT BENNING, GEORGIA. BIDS FOR THESE SERVICES WERE SOLICITED FROM THIRTY SEVEN PROSPECTIVE SOURCES. THREE BIDS, AS SET FORTH BELOW, WERE RECEIVED AND PUBLICLY OPENED ON MAY 11, 1970:

BIDDER TOTAL BID-ALL ITEMS TERMS ACTA CORPORATION $180,900.00

1/2% - 20 DAYS PALOMAR CORPORATION 190,999.68 NET HELICAB AIRWAYS, INC.

161,940.00 NET

THE RECORD INDICATES THAT MR. SWAN D. PERSON, REPRESENTING YOUR FIRM, ATTENDED THE OPENING OF BIDS AND DISCUSSED YOUR APPARENT LOW BID WITH MR. JIMMY F. KLEPAC (CHIEF, CONTRACT DEVELOPMENT AND AWARD SECTION, CONTRACTS BRANCH, OF THE PURCHASING OFFICE). WE ARE ADVISED THAT MR. KLEPAC REQUESTED YOUR FIRM TO FURNISH DATA OF THE TYPE REFERRED TO IN SECTION 1- 905.3 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), TO ENABLE THE CONTRACTING OFFICER TO MAKE A DETERMINATION AS TO THE RESPONSIBILITY OF YOUR FIRM AS REQUIRED BY ASPR 1-904. WE ARE ADVISED THAT YOUR FIRM, BY LETTER OF MAY 14, 1970, FURNISHED TWO CREDIT REFERENCES AND BRIEFLY EXPLAINED THE STATUS OF PERSONNEL AND EQUIPMENT WHICH WERE TENTATIVELY ANTICIPATED TO BE UTILIZED UNDER THE CONTRACT. THE CONTRACTING OFFICER STATES THAT SUCH DATA WAS UNSUPPORTED AND WAS NOT CONSIDERED SUFFICIENT TO ENABLE HIM TO MAKE THE REQUIRED AFFIRMATIVE DETERMINATION OF RESPONSIBILITY. THEREFORE, DURING A TELEPHONE CONVERSATION WITH MR. PERSON ON MAY 21, 1970, MR. JOHN H. MALO (CHIEF, CONTRACTS BRANCH OF THE PURCHASING OFFICE) REQUESTED ADDITIONAL DATA. THE TYPE OF DATA CONSIDERED NECESSARY UPON WHICH TO BASE AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WAS DISCUSSED WITH MR. PERSON AND HIS ATTENTION WAS DIRECTED TO PAGE 14, PARAGRAPH 9 OF THE SOLICITATION WHICH LISTED NINE RESPONSIBILITY FACTORS AS TO WHICH BIDDERS MAY BE REQUESTED TO SUBMIT STATEMENTS OF FACT IN DETAIL.

THE CONTRACTING OFFICER STATES THAT A TELEPHONIC INQUIRY WITH THE COBB EXCHANGE BANK OF MARIETTA, GEORGIA, WHICH WAS LISTED BY YOUR FIRM AS A CREDIT REFERENCE, FAILED TO ESTABLISH THAT YOUR FIRM POSSESSED ADEQUATE FINANCIAL RESOURCES, OR THE ABILITY TO OBTAIN ADEQUATE FINANCIAL RESOURCES, TO PERFORM THE CONTRACT SERVICES. OTHER TELEPHONE CONVERSATIONS WITH MR. PERSON AND THE SMALL BUSINESS ADMINISTRATION (SBA) ALSO FAILED TO DISCLOSE THAT YOUR FIRM POSSESSED ADEQUATE CAPACITY OR CREDIT TO PERFORM THE CONTRACT SERVICES. THEREFORE, ON MAY 25, 1970, THE CONTRACTING OFFICER DETERMINED HELICAB TO BE A NONRESPONSIBLE PROSPECTIVE CONTRACTOR IN ACCORDANCE WITH ASPR 1-904.

OUR OFFICE HAS CONSISTENTLY HELD THAT A DETERMINATION OF THE QUALIFICATIONS OF A PROPOSED CONTRACTOR IS PRIMARILY THE FUNCTION OF THE PROCUREMENT AGENCY, AND UNLESS THERE IS A SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR THE DETERMINATION AS MADE, WE ARE NOT REQUIRED TO OBJECT TO THE DETERMINATION. 37 COMP. GEN. 798 (1958).

THE RECORD INDICATES THAT ON MAY 26, 1970, THE MATTER OF YOUR NONRESPONSIBILITY WAS REFERRED TO THE SBA, AS REQUIRED BY ASPR 1 705.4(C), FOR CONSIDERATION WHETHER A CERTIFICATE OF COMPETENCY (COC) WOULD BE ISSUED TO YOUR FIRM BY THAT AGENCY. IN A REPORT TO OUR OFFICE FROM SBA, WE ARE ADVISED THAT THE COC REVIEW COMMITTEE DETERMINED THAT A COC SHOULD NOT BE ISSUED TO YOUR FIRM, BASED UPON THE FOLLOWING CONCLUSIONS: " ... (1) ABSENTEE OPERATION OF AN IMPORTANT CONTRACT OF THIS TYPE INVOLVING THE SAFETY OF AIRCRAFT AND MILITARY PERSONNEL COULD OVER THE LIFE OF THE CONTRACT RESULT IN A CONFLICT, CAUSING A POSSIBLE WORK STOPPAGE PLUS AFFECTING THE TRAINING OF MILITARY PERSONNEL FOR THE SOUTHEAST ASIA CONFLICT - (2) THE INFORMATION SUBMITTED DID NOT GIVE REASONABLE ASSURANCE THAT THE EQUIPMENT COULD BE MADE AVAILABLE ON THE DATE REQUIRED FOR CONTRACT PERFORMANCE - (3) BASED ON INFORMATION SUBMITTED THE APPLICANT IS NOT CONSIDERED FINANCIALLY COMPETENT TO SUCCESSFULLY PERFORM SUBJECT CONTRACT."

IN VIEW OF THE ABOVE, THE SBA SOUTHEASTERN AREA OFFICE DECLINED TO ISSUE A COC TO YOUR FIRM. THE RECORD INDICATES THAT YOUR FIRM WAS ADVISED BY LETTER DATED JUNE 17, 1970, FROM THE ACTING REGIONAL DIRECTOR OF SBA'S ATLANTA REGIONAL OFFICE THAT A COC WOULD NOT BE ISSUED. THEREFORE, ON JUNE 18, 1970, YOUR BID WAS REJECTED BASED ON THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY OF YOUR FIRM AND CONTRACT NO. DABC09-71 -C-1263 WAS AWARDED TO ACTA CORPORATION AS THE LOWEST RESPONSIBLE BIDDER UNDER THE IFB.

IN YOUR TELEGRAM PROTESTING THE REJECTION OF YOUR BID, YOU CONTEND THAT THE FAILURE OF SBA TO ISSUE A COC WAS IN ERROR AND THAT YOU ARE PREPARED TO DOCUMENT YOUR COMPETENCY. IN THIS REGARD, OUR OFFICE HAS STATED THAT THE REFUSAL OF SBA TO ISSUE A COC AS TO THE COMPETENCE OF A SMALL BUSINESS BIDDER MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE NONRESPONSIBILITY OF THE BIDDER. 39 COMP. GEN. 705 (1960). WHEN THE ISSUANCE OF A COC IS DENIED, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED. WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF SBA, OR TO REQUIRE IT TO ISSUE A COC. NOR DO WE DISTURB THE DETERMINATIONS OF THE CONTRACTING OFFICER WHERE, AS HERE, THEY ARE SUPPORTED BY THE EVIDENCE OF RECORD AND ARE NEITHER ARBITRARY NOR CAPRICIOUS. B-159247, AUGUST 26, 1966; B-167608, SEPTEMBER 22, 1969.

FOR THE FOREGOING REASONS, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE REJECTION OF YOUR BID, AND YOUR PROTEST IS THEREFORE DENIED.