B-142818, AUG. 1, 1960

B-142818, AUG. 1, 1960

TO JAMES D. WILLIAMS, JR., ESQUIRE:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 27 AND JUNE 3, 1960, CONCERNING THE PROTEST OF THE BUHL OPTICAL COMPANY AGAINST THE REJECTION OF ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 33-600-60-127, ISSUED BY WRIGHT-PATTERSON AIR FORCE BASE, OHIO, ON JANUARY 28, 1960.

THE INVITATION REQUESTED BIDS, UNDER A SMALL BUSINESS SET-ASIDE, FOR THE FURNISHING OF VARIOUS QUANTITIES OF STILL PICTURE PROJECTORS, INCLUDING CERTAIN SUB-ITEMS. FOUR BIDS WERE RECEIVED AND OPENED ON FEBRUARY 17, 1960, AND THE ABSTRACT OF BIDS SHOWS THAT BUHL SUBMITTED THE LOWEST RESPONSIVE BID AND THE NEXT LOWEST BID WAS SUBMITTED BY THE CHARLES BESELER COMPANY.

SINCE THE PROCUREMENT ACTIVITY DETERMINED, AFTER A PREAWARD SURVEY OF BUHL'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR, THAT BUHL DID NOT MEET THE MINIMUM STANDARDS OF RESPONSIBILITY PRESCRIBED BY SECTION 1.903.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), AWARD TO THAT BIDDER WAS NOT RECOMMENDED. SPECIFICALLY, IT WAS DETERMINED THAT BUHL LACKED ADEQUATE PRODUCTION CAPABILITY, ABILITY TO MEET THE DELIVERY SCHEDULE, AND FINANCIAL STABILITY. IN COMPLIANCE WITH THE PROVISIONS OF SECTION 1.705.6 (B) OF THE ASPR, THE MATTER OF BUHL'S NONRESPONSIBILITY WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION AS TO WHETHER A CERTIFICATE OF COMPETENCY AS TO BUHL'S CAPACITY AND CREDIT SHOULD BE ISSUED. UNDER DATE OF MAY 6, 1960, THE SMALL BUSINESS ADMINISTRATION ADVISED THE PROCUREMENT ACTIVITY THAT: "BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION, THIS AGENCY HAS DECLINED TO ISSUE A CERTIFICATE OF COMPETENCY IN THIS INSTANCE.'

THEREAFTER, BUHL REQUESTED A RE-EVALUATION OF ITS CAPABILITIES AND, IN SUPPORT OF SUCH REQUEST SUBMITTED ADDITIONAL EVIDENCE OF ITS CAPABILITIES TO PERFORM, INCLUDING A REPORT ON "CAPABILITY TO PRODUCE ON IFB-33-600-60- 127," PREPARED BY A MANAGEMENT CONSULTING FIRM, WHEREIN IT WAS CONCLUDED THAT BUHL IS "WELL EQUIPPED AND FULLY CAPABLE OF PRODUCING ON THIS CONTRACT IN HIGHLY SATISFACTORY FASHION.' ALSO, INFORMATION WAS FURNISHED TENDING TO ESTABLISH BUHL'S SATISFACTORY PERFORMANCE ON PRIOR CONTRACTS SINCE THE PREAWARD SURVEY HAD INDICATED THAT BUHL HAD A PRIOR HISTORY OF DELINQUENT PERFORMANCE. SUCH A RE EVALUATION WAS CONDUCTED BY THE PROCUREMENT ACTIVITY IN THE LIGHT OF THE ADDITIONAL EVIDENCE AND, BY RECORD OF FACILITY ADVISORY BOARD ACTION DATED JUNE 8, 1960, AWARD OF A CONTRACT TO BUHL UNDER THE INVITATION WAS NOT RECOMMENDED BECAUSE BUHL LACKED ENGINEERING AND PRODUCTION CAPABILITIES AND ABILITY TO MEET THE DELIVERY SCHEDULE. HOWEVER, THE BOARD FOUND UPON REVIEW THAT BUHL WAS FINANCIALLY CAPABLE OF PERFORMING THE CONTRACT WORK.

THE SMALL BUSINESS ADMINISTRATION WAS AGAIN REQUESTED TO REVIEW BUHL'S APPLICATION FOR A CERTIFICATE OF COMPETENCY ON THE BASIS OF ALL THE EVIDENCE ADDUCED RELATING TO ITS CAPABILITIES AND ON JUNE 28, 1960, SUCH APPLICATION WAS DENIED. ACCORDINGLY, CONTRACT NO. AF 33/600/-41651 WAS AWARDED TO THE CHARLES BESELER COMPANY AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER UNDER THE INVITATION. IN OUR OPINION SUCH AWARD IS NOT SUBJECT TO QUESTION BY OUR OFFICE.

THE MATTER OF BUHL'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR UNDER THE INVITATION BECAME ONE SOLELY FOR RESOLUTION BY THE PROCUREMENT ACTIVITY IN VIEW OF THE REFUSAL OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY ON TWO OCCASIONS. IN SUCH A CASE, THERE IS FOR APPLICATION THE GENERAL RULE THAT THE QUESTION AS TO THE RESPONSIBILITY AND CAPABILITY OF A BIDDER ON A PROPOSED GOVERNMENT CONTRACT IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY AND SUCH DETERMINATION WHEN MADE WILL NOT BE QUESTIONED BY THE COURTS OR OUR OFFICE, IN THE ABSENCE OF A SHOWING OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE O BRIEN V. CARNAY, 6 F.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 96; 20 COMP. GEN. 862; 37 ID. 430, 435. SINCE IT HAS BEEN DETERMINED ON THE BASIS OF COMPETENT EVIDENCE THAT BUHL DID NOT MEET THE PRESCRIBED STANDARDS OF RESPONSIBILITY RELATING TO ITS ABILITY TO PERFORM THE REQUIRED CONTRACT WORK, NO LEGAL BASIS EXISTS FOR DISTURBING THE ADMINISTRATIVE ACTIONS TAKEN UNDER THE INVITATION. UNDER THE CIRCUMSTANCES WE DO NOT CONSIDER IT NECESSARY TO DISCUSS THE ADMINISTRATIVE FINDING THAT BUHL WAS DELINQUENT UNDER PRIOR CONTRACTS.