B-171091, DEC. 23, 1970

B-171091, DEC. 23, 1970

BID PROTEST - LOW BID - CAPACITY DENIAL OF PROTEST OF PROGRESS EQUIPMENT CORPORATION AGAINST THE AWARD OF A NEGOTIATED CONTRACT ISSUED BY THE ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY FOR 60 MM. M49A3 PROJECTILES TO ANY OTHER BIDDER. PROTESTANT'S BID WAS NOT LOW AND THEREFORE ITS CLAIM THAT IT WOULD NOT BE FAIRLY EVALUATED AS TO CAPACITY AND CREDIT ARE ACADEMIC.

TO PROGRESS EQUIPMENT CORPORATION:

REFERENCE IS MADE TO YOUR TELEFAX OF OCTOBER 21 AND LETTERS OF NOVEMBER 3 AND 24, 1970, PROTESTING THE AWARD OF CONTRACT TO ANY OTHER FIRM UNDER REQUEST FOR PROPOSALS (RFP) DAAA09-71-R-0022 ISSUED BY THE UNITED STATES ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILLINOIS. THE RFP, ISSUED JULY 24, 1970, REQUESTED PROPOSALS FOR THE MANUFACTURE AND DELIVERY OF FOUR ALTERNATE QUANTITIES OF 60 MM. M49A3 PROJECTILES.

THE RFP WAS OPENED ON AUGUST 14, 1970, AND IT WAS DETERMINED AT THAT TIME THAT PREAWARD SURVEYS SHOULD BE CONDUCTED ON YOUR FIRM AND ANOTHER OFFEROR AS YOU WERE BOTH NEW OFFERORS FOR THE ITEM SOLICITED AND WERE WITHIN THE ZONE OF CONSIDERATION.

THEREAFTER, ON AUGUST 20, 1970, NEGOTIATIONS WERE OPENED WITH AUGUST 31, 1970, ESTABLISHED AS THE CLOSING DATE. BY TELEGRAM DATED AUGUST 31, 1970, YOU ADVISED THE PROCURING AGENCY THAT YOUR FINAL PRICE REMAINED THE SAME AS THE ONE QUOTED BY YOU IN THE RFP.

IN YOUR CORRESPONDENCE WITH OUR OFFICE YOU HAVE ALLEGED THAT YOU WERE THE LOW OFFEROR UNDER THE SUBJECT RFP. YOU ALSO STATE THAT YOU FEAR YOU WILL BE REJECTED AS A NONRESPONSIBLE CONTRACTOR BECAUSE OF A LACK OF CAPACITY OR CREDIT. FINALLY, YOU STATE THAT YOU FEAR THAT IF YOU ARE DECLARED NONRESPONSIBLE THERE WILL BE NO REFERRAL OF YOUR CASE TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR A CERTIFICATE OF COMPETENCY PURSUANT TO PARAGRAPH 1-705.4 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

THE REPORT THE DEPARTMENT OF THE ARMY HAS FURNISHED OUR OFFICE CONCERNING YOUR PROTEST STATES THAT "UNDER THE SOLICITATION, AWARDS ARE TO BE MADE IN THAT COMBINATION OF OFFERS WHICH RESULT IN AT LEAST TWO SOURCES OF SUPPLY AT THE LOWEST OVERALL COST TO THE GOVERNMENT." THE REPORT ALSO CONTAINS THE PRICES SUBMITTED BY ALL OFFERORS UNDER THE ABOVE-CITED SOLICITATION. THE PRICES OFFERED BY YOUR FIRM WERE NOT LOWEST IN ANY OF THE FOUR QUANTITIES SOLICITED. NOR WILL ANY COMBINATION OF YOUR PRICES WITH THOSE OF ANY OF THE FOUR LOWEST OFFERORS (AMENDMENT NO. 0001 TO THE RFP DETERMINED THAT IT WAS IN THE BEST INTERESTS OF NATIONAL DEFENSE THAT MORE THAN ONE AWARD BE MADE) RESULT IN THE LOWEST OVERALL COST COMBINATION TO THE GOVERNMENT.

THE QUESTION OF YOUR RESPONSIBILITY AND LACK OF CAPACITY AND CREDIT BECOMES ACADEMIC IN LIGHT OF THE FACT THAT THE PRICES SUBMITTED BY YOUR FIRM WERE NOT AMONG THE LOWEST RECEIVED. LIKEWISE, YOUR PRICES PRECLUDED THE OBTAINING OF A CERTIFICATE OF COMPETENCY AS YOUR FIRM WAS NOT IN LINE FOR AWARD. FURTHER, THE MATTER COULD NOT BE FORWARDED TO THE SBA AS ASPR 1-705.4(C) PROVIDES FOR SUCH REFERRAL FOR A CERTIFICATE OF COMPETENCY ONLY IF A PROPOSAL IS REJECTED BECAUSE THE OFFEROR IS DETERMINED TO BE NONRESPONSIBLE AS TO CAPACITY OR CREDIT. IN THE INSTANT CASE YOUR OFFER WAS REJECTED BECAUSE OF THE HIGH PRICES GIVEN RATHER THAN YOUR CAPACITY OR CREDIT.

ACCORDINGLY, FOR THE REASONS SET FORTH ABOVE, YOUR PROTEST MUST BE DENIED.