B-174510, JAN 13, 1972

B-174510, JAN 13, 1972

BID PROTEST - DETERMINATION OF RESPONSIBILITY DECISION DENYING THE PROTEST OF MILTON MACHINE CORP., LOW BIDDER, AGAINST THE REJECTION OF A BID SUBMITTED UNDER AN IFB FOR A SMALL BUSINESS SET- ASIDE ISSUED BY THE NAVAL AIR SYSTEMS COMMAND FOR THE PROCUREMENT OF EMPTY GUIDED MISSILE ASSEMBLIES. ON THE BASIS OF A PRE-AWARD SURVEY, THE CONTRACTING OFFICER DETERMINED PROTESTANT TO BE NON-RESPONSIBLE WITH RESPECT TO CAPACITY AND CREDIT. ACCORDANCE WITH ASPR 1-705.4(C), THE MATTER WAS SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION WHICH DENIED MILTON'S REQUEST FOR A CERTIFICATE OF COMPETENCY. IN THE ABSENCE OF ANY EVIDENCE THAT THE CONTRACTING OFFICIALS ACTED IN BAD FAITH OR ON UNREASONABLE GROUNDS, THERE EXISTS NO LEGAL BASIS FOR DISTURBING THEIR DETERMINATION.

TO MILTON MACHINE CORP.:

WE REFER TO YOUR LETTER OF NOVEMBER 17, 1971, PROTESTING AGAINST REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. N00019 -71-B-0176, A TOTAL SMALL BUSINESS SET-ASIDE, ISSUED JULY 12, 1971, BY THE NAVAL AIR SYSTEMS COMMAND (NAVAIR) FOR PROCUREMENT OF 720 EMPTY GUIDED MISSILE WARHEAD ASSEMBLIES AND RELATED DATA, WITH AN OPTION TO PURCHASE ANOTHER 100 ASSEMBLIES.

MILTON MACHINE CORP. (MILTON) SUBMITTED THE LOWEST OF FIVE BIDS AT A TOTAL PRICE OF $93,510.50, EXCLUDING THE OPTION WHICH WAS NOT CONSIDERED IN THE EVALUATION FOR AWARD. HOWEVER, A PRE-AWARD SURVEY TEAM, COMPOSED OF TEN EXPERTS FROM NAVAIR, NAVAL WEAPONS CENTER, AND THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), BOSTON, RECOMMENDED THAT THE CONTRACT NOT BE AWARDED TO MILTON BECAUSE IT WAS UNSATISFACTORY IN TECHNICAL CAPABILITY, PRODUCTION CAPABILITY, PLANT FACILITIES AND EQUIPMENT, SUB-CONTRACTING, LABOR RESOURCES, PERFORMANCE RECORD, AND ABILITY TO MEET SCHEDULE REQUIREMENTS. ON THE BASIS OF THIS SURVEY, THE CONTRACTING OFFICER DETERMINED THAT MILTON WAS NON RESPONSIBLE WITH RESPECT TO CAPACITY AND CREDIT AND REFERRED THE MATTER TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR REVIEW UNDER ARMED SERVICES PROCUREMENT REGULATION 1-705.4(C). IN A LETTER OF NOVEMBER 8, 1971, SBA DECLINED MILTON'S REQUEST FOR A CERTIFICATE OF COMPETENCY. CONSEQUENTLY, THE CONTRACTING OFFICER DETERMINED THAT MILTON WAS NON RESPONSIBLE FOR PERFORMANCE UNDER THE IFB.

MILTON HAS CHALLENGED THE DETERMINATION OF NON-RESPONSIBILITY ON THE GROUNDS OF PREVIOUS SUCCESSFUL PERFORMANCE UNDER GOVERNMENT CONTRACTS AND, IN PARTICULAR, OF ITS SUCCESSFUL MANUFACTURE OF ASSEMBLIES SIMILAR TO THOSE REQUIRED UNDER THE CURRENT IFB. HOWEVER, OUR OFFICE RECOGNIZES THAT IT IS PRIMARILY THE CONTRACTING OFFICER'S DUTY TO DETERMINE THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. THEREFORE, AN ADMINISTRATIVE DETERMINATION OF NON-RESPONSIBILITY WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF EVIDENCE THAT CONTRACTING OFFICIALS HAVE ACTED IN BAD FAITH OR ON UNREASONABLE GROUNDS. FURTHERMORE, WE HAVE CONSISTENTLY HELD THAT DETERMINATION OF THE SBA NOT TO ISSUE A CERTIFICATE OF COMPETENCY IS AN AFFIRMATION OF THE CONTRACTING OFFICER'S DETERMINATION OF NON- RESPONSIBILITY. SEE B 171838, APRIL 15, 1971, COPY ENCLOSED. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.