B-144500, MAR. 14, 1961

B-144500, MAR. 14, 1961

TO PRODUCT AND INDUSTRIAL ENGINEERING CORP.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 21, 1960, ENCLOSING A COPY OF YOUR LETTER OF THE SAME DATE TO THE CONTACTING OFFICER OF THE ENGINEER MAINTENANCE CENTER, COLUMBUS, OHIO, IN WHICH YOU PROTEST AWARD OF A CONTRACT UNDER REQUEST FOR QUOTATION 33-181-000 9-60 FOR FURNISHING SERVICES FOR THE STUDY OF MAINTAINABILITY REQUIREMENTS AND THE PREPARATION OF MAINTAINABILITY SPECIFICATIONS FOR USE IN CORPS OF ENGINEERS EQUIPMENT PROCUREMENT CONTRACTS DURING THE PERIOD SEPTEMBER 1, 1960, THROUGH AUGUST 31, 1961.

OF THE TEN FIRMS SOLICITED, INCLUDING YOUR CORPORATION, SEVEN SUBMITTED PROPOSALS RANGING IN CONTRACT COSTS FROM $59,124.80 TO $140,826.00, AND THREE DECLINED TO BID. YOUR PROPOSAL WAS LOW CONSISTING OF A COMPETITIVE PORTION OF $39,124.80 FOR LABOR AND OVERHEAD, AND A NON-COMPETITIVE PORTION OF $20,000 FOR PER DIEM AND TRANSPORTATION. THE RFQ REQUIRED YOU TO LIST OTHER CONTRACTS FOR THIS TYPE OF SERVICE CURRENTLY BEING PERFORMED OR WHICH HAD BEEN COMPLETED. YOU LISTED SEVEN COMPLETED CONTRACTS, ONLY THREE OF WHICH WERE CONSIDERED ADMINISTRATIVELY TO BE SIMILAR IN NATURE TO THE WORK REQUIRED. A PERFORMANCE APPRAISAL REPORT OF YOUR PREVIOUS CONTRACT WORK DISCLOSED THAT THE QUALITY OF YOUR PERFORMANCE ON ALL THREE CONTRACTS WAS INADEQUATE AND THAT THE DELIVERY SCHEDULES WERE NOT MET. THIS EXPERIENCE GAVE RISE TO CONSIDERABLE DOUBT AS TO YOUR ABILITY TO SATISFACTORILY PERFORM THE HIGHLY TECHNICAL REQUIREMENTS OF THE PROPOSED CONTRACT. ALSO, THE DIRECT WAGES YOU PROPOSED TO PAY YOUR PROJECT ENGINEER AND PROJECT SUPERVISOR, ANALOGOUS TO GS GRADE 7, WERE INDICATIVE OF THE CALIBER OF PERSONNEL WHICH YOU WOULD ASSIGN TO PERFORMANCE OF THE CONTRACT. IN VIEW OF THE CHARACTER OF THE WORK REQUIRED, IT WAS FOUND THAT THE CALIBER OF PERSONNEL EMPLOYED WOULD LARGELY GOVERN THE SUCCESS OR FAILURE OF THE CONTRACT ENDEAVOR. HENCE, THE CONTRACTING OFFICER WAS UNABLE TO MAKE AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY BASED UPON CRITERIA SET FORTH IN ASPR 1 902 AS REQUIRED BY ASPR 1-904 AND YOU WERE DENIED THE CONTRACT.

THE RECORD ESTABLISHED FURTHER THAT, BASED UPON A REVIEW OF THE DETERMINATIONS MADE TO AWARD THIS CONTRACT TO THE NEXT LOW BIDDER, THE SMALL BUSINESS ADMINISTRATION HAS FOUND THAT THE CERTIFICATE OF COMPETENCY PROCEDURE WAS NOT APPLICABLE SINCE THE AWARD WAS MADE IN CONSIDERATION OF OTHER PROVISIONS IN APPLICABLE REGULATION, ASPR 1 705.6 (C), AND THE DENIAL WAS NOT DUE SOLELY TO LACK OF CAPACITY OR CREDIT.

IT HAS BEEN CONSISTENTLY HELD THAT THE RESPONSIBILITY AND CAPABILITY OF THE BIDDER ON A GOVERNMENT CONTRACT IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY, AND SUCH DETERMINATION WHEN MADE WILL NOT BE QUESTIONED IN THE ABSENCE OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 96, 20 COMP. GEN. 862; AND 37 ID. 430, 435.

THE ALLEGATIONS IN YOUR LETTERS TO US AND TO THE CONTRACTING OFFICER THAT YOUR OFFER WAS LOW IN EACH OF THE COMPETITIVE PERSONNEL CATEGORIES, AS WELL AS THE AGGREGATE QUOTATION, AND THAT THE PROCEDURE FOLLOWED IN THE INSTANT CASE IS INDICATIVE OF GOVERNMENT-PROCUREMENT DISCRIMINATION AGAINST SMALL BUSINESS CONTRACTORS, CONSIDERED IN THE LIGHT OF ALL THE FACTS AND CIRCUMSTANCES UPON WHICH THE ADMINISTRATIVE DETERMINATIONS WERE MADE, IN OUR OPINION, AFFORD NO BASIS ON WHICH ..END :