B-175970, JUL 18, 1972

B-175970, JUL 18, 1972

BID PROTEST - NONRESPONSIBILITY - SMALL BUSINESS CONCERN DECISION DENYING PROTEST OF FOREST SCIENTIFIC, INC., AGAINST AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER AN IFB ISSUED BY THE U.S. ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, JOLIET, ILL. THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER ERRED IN FINDING PROTESTANT, A SMALL BUSINESS CONCERN, NONRESPONSIBLE. THE SBA REFUSED TO ISSUE A CERTIFICATE OF COMPETENCY (COC) IN THIS CASE. SUCH A REFUSAL IS PERSUASIVE WITH RESPECT TO THE COMPETENCY OF A BIDDER, AND DENIAL THEREOF IS AN AFFIRMATION OF CONTRACTING OFFICERS DETERMINATION OF NONRESPONSIBILITY. SEE B-175343, MAY 12, 1972, 43 COMP. GEN. 228 (1963).

TO FOREST SCIENTIFIC, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 11, 1972, CONCERNING YOUR PROTEST UNDER INVITATION FOR BIDS (IFB) DAAA09-72-B-0077, ISSUED BY THE U.S. ARMY AMMUNITION PROCUREMENT AND SUPPLY AGENCY, DEPARTMENT OF THE ARMY, JOLIET, ILLINOIS.

BIDS WERE OPENED ON FEBRUARY 29, 1972, AND THE RECORD SHOWS THAT FOR VARIOUS REASONS THE FOUR LOWEST BIDDERS WERE DETERMINED TO BE NOT ELIGIBLE FOR THE AWARD. SUBSEQUENTLY, THE CONTRACTING OFFICER REQUESTED THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT (DCASD), GARDEN CITY, NEW YORK, TO MAKE A PREAWARD SURVEY OF YOUR FIRM, THE FIFTH-LOWEST BIDDER. ON MARCH 30, 1972, THE PREAWARD SURVEY BOARD RECOMMENDED DENIAL OF AWARD TO YOUR FIRM BECAUSE IT FOUND YOUR TECHNICAL, PRODUCTION, AND FINANCIAL CAPABILITIES TO BE UNSATISFACTORY. ADDITIONALLY, THE BOARD FOUND THAT YOUR PURCHASING AND SUBCONTRACTING ARRANGEMENTS, QUALITY ASSURANCE CAPABILITY AND PERFORMANCE RECORD WERE ALSO UNSATISFACTORY. CONSEQUENTLY, THE SURVEY TEAM DETERMINED THAT YOU DID NOT HAVE THE ABILITY TO MEET THE REQUIRED DELIVERY SCHEDULE AND RECOMMENDED THAT NO AWARD BE MADE TO YOUR COMPANY.

THEREAFTER, ON MARCH 30, 1972, THE CONTRACTING OFFICER DECIDED THAT YOUR COMPANY WAS NONRESPONSIBLE. SINCE YOUR FIRM IS A SMALL BUSINESS CONCERN, THE CONTRACTING OFFICER REFERRED THE QUESTION OF YOUR CAPACITY AND CREDIT TO THE NEW YORK REGIONAL OFFICE OF THE SMALL BUSINESS ADMINISTRATION (SBA) IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1- 705.4(C).

SBA REPORTS THAT ITS REGIONAL OFFICE MADE AN EXTENSIVE ANALYSIS OF YOUR FIRM AND INITIALLY CONCLUDED THAT IT COULD NOT ISSUE A CERTIFICATE OF COMPETENCY (COC) BECAUSE OF YOUR LACK OF FINANCIAL CAPABILITY; THAT YOU SUBSEQUENTLY REQUESTED A MEETING WITH THE APPROPRIATE EMPLOYEES OF ITS REGIONAL OFFICE TO SHOW THAT YOU WERE FINANCIALLY CAPABLE; THAT AT THE MEETING YOU PRODUCED CASH, ALLEGEDLY AMOUNTING TO $10,000, AS EVIDENCE OF YOUR FINANCIAL CAPABILITY TO PERFORM THE CONTRACT; AND THAT THE ACTING CHIEF, FINANCING DIVISION, OF THE REGIONAL OFFICE CONCLUDED THAT THIS CASH, TOGETHER WITH $5,000 IN CASH ON HAND SHOWN ON YOUR FINANCIAL STATEMENT, WAS NOT SUFFICIENT WORKING CAPITAL TO ASSURE COMPLETION OF THE SUBJECT CONTRACT. ACCORDINGLY, THE SBA FINALLY DETERMINED THAT A COC COULD NOT BE ISSUED TO YOUR COMPANY, AND ADVISED THE CONTRACTING OFFICER OF THIS DECISION ON MAY 11, 1972.

YOU STATE THAT DURING THE PENDENCY OF THE COC PROCEEDING, AN SBA REPRESENTATIVE REQUESTED THE CONTRACTING OFFICER TO MAKE A DIRECT AWARD TO YOUR COMPANY IN LIEU OF THE ISSUANCE OF A COC BY THE SBA. IT IS YOUR APPARENT POSITION THAT THE CONTRACTING OFFICER'S REFUSAL TO FOLLOW SUCH ADVICE, AND THE SUBSEQUENT DECISION OF SBA NOT TO ISSUE A COC WERE IMPROPER.

THE CONTRACTING OFFICER STATES THAT THE DECISION OF THE SBA NOT TO ISSUE A COC TO YOUR COMPANY SHOWS THAT HE CORRECTLY REFUSED TO MAKE A DIRECT AWARD TO YOUR FIRM. WE CANNOT DISAGREE WITH THIS POSITION.

WITH RESPECT TO THE PROPRIETY OF SBA'S ACTIONS, THE RECORD SHOWS, AS NOTED ABOVE, THAT THE QUESTION OF YOUR RESPONSIBILITY WAS SUBMITTED TO SBA PURSUANT TO REGULATION AND THAT AGENCY IN CONSIDERATION OF ALL AVAILABLE INFORMATION DECLINED TO ISSUE A COC. IT IS NOT A FUNCTION OF THIS OFFICE TO REVIEW SBA DETERMINATIONS IN SUCH MATTERS OR TO REQUIRE ISSUANCE OF A COC. B-171838, APRIL 15, 1971; B-164681, JANUARY 17, 1969. IN ADDITION, WE HAVE HELD THAT THE REFUSAL OF SBA TO ISSUE SUCH CERTIFICATE MUST ALSO BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OF THE BIDDER, AND THE DENIAL THEREOF AS AN AFFIRMATION OF THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY. B 175343, MAY 12, 1972; 43 COMP. GEN. 228 (1963).

IN VIEW OF THE FOREGOING, WE CANNOT CONCLUDE THAT YOU WERE IMPROPERLY DENIED THE AWARD OF THE CONTRACT. ACCORDINGLY, YOUR PROTEST IS DENIED.