B-170236, AUG. 25, 1970

B-170236, AUG. 25, 1970

BID PROTEST -- BIDDER RESPONSIBILITY DENIAL OF PROTEST AGAINST REJECTION OF LOW BID FOR FURNISHING ELECTRONIC EQUIPMENT TO ARMY, FRANKFORD ARSENAL, ON BASIS OF NONRESPONSIBILITY. A LOW SMALL BUSINESS BIDDER WHO ON BASIS OF A SURVEY WAS RATED UNSATISFACTORY IN SIX OF EIGHT AREAS ON SPECIFIC DEFICIENCIES AND WHO WAS DENIED REQUEST FOR REFERRAL TO SBA FOR CERTIFICATE OF COMPETENCY MUST HAVE DETERMINATION OF RESPONSIBILITY SUSTAINED SINCE PROCUREMENT WAS OVER $2,500 BUT UNDER $10,000 LIMITATIONS AS PRESCRIBED IN ASPR 1 705.4 WHICH PROVIDES THAT IT IS WITHIN DISCRETION OF CONTRACTING OFFICER AS TO WHETHER BID WILL BE REFERRED TO SBA FOR CERTIFICATE OF COMPETENCY.

TO B.A.R. BEARING MANUFACTURING CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JULY 6, 1970, WHEREIN YOU PROTESTED AN AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DAAA25-70-B-0674 ISSUED BY THE U.S. ARMY, FRANKFORD ARSENAL, IF YOUR COMPANY IS DENIED THE OPPORTUNITY TO OBTAIN A CERTIFICATE OF COMPETENCY FROM THE SMALL BUSINESS ADMINISTRATION (SBA).

THE INVITATION FOR BIDS WAS ISSUED ON MAY 8, 1970, FOR 33 EACH, WAVEGUIDE ASSEMBLY, P/N 10525634, FOR USE ON THE RADAR CHRONOGRAPH M36. DELIVERY WAS TO BE PERFORMED WITHIN 180 DAYS AFTER AWARD FOR 15 UNITS AND WITHIN 210 DAYS AFTER AWARD OF 18 UNITS. FOURTEEN BIDS WERE RECEIVED. THE BIDS WERE OPENED ON JUNE 9, 1970, AND YOUR COMPANY WAS DETERMINED TO HAVE SUBMITTED THE LOWEST BID.

SUBSEQUENT THERETO, A JOINT ON-SITE PRE-AWARD SURVEY WAS PERFORMED BY FRANKFORD ARSENAL AND THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT, GARDEN CITY. THE SURVEY TEAM INVESTIGATED EIGHT FACTORS, NAMELY, TECHNICAL CAPABILITY, PRODUCTION CAPABILITY, PLANT FACILITIES AND EQUIPMENT, PURCHASING AND SUBCONTRACTING, QUALITY ASSURANCE CAPABILITY, ABILITY TO MEET REQUIRED SCHEDULE, PERFORMANCE RECORD, AND TENACITY AND PERSERVERANCE IN THE PERFORMANCE OF PAST CONTRACTS. IN ALL BUT THE LAST TWO OF THESE FACTORS, YOUR COMPANY WAS DETERMINED TO BE UNSATISFACTORY FOR PURPOSES OF THIS PROCUREMENT. AS A RESULT OF THE INVESTIGATION DETAILED ABOVE, YOUR COMPANY WAS DETERMINED TO BE NONRESPONSIBLE IN ACCORDANCE WITH, AND PURSUANT TO, THE REQUIREMENTS SET FORTH IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903. UPON DISCOVERY OF THIS DETERMINATION, THE RECORD INDICATES THAT YOU REQUESTED THE CONTRACTING OFFICER TO REFER THE DETERMINATION TO THE SBA IN ORDER THAT YOU MIGHT REQUEST A CERTIFICATE OF COMPETENCY. THIS REQUEST WAS REJECTED BY THE CONTRACTING OFFICER, AND YOUR PROTEST TO THIS OFFICE FOLLOWED.

PARAGRAPH 1-705.4 OF THE ASPR SETS FORTH THE CIRCUMSTANCES UNDER WHICH A BIDDER SHALL BE GIVEN THE OPPORTUNITY TO REQUEST A CERTIFICATE OF COMPETENCY, AND THE PROCEDURES TO BE FOLLOWED IN SUCH CASES. HOWEVER, ASPR 1-705.4(C) STATES THAT WHEN A PROPOSED AWARD WILL EXCEED $2,500 BUT WILL NOT EXCEED $10,000, IT IS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER AS TO WHETHER THE BID WILL BE REFERRED TO SBA FOR CONSIDERATION UNDER THE CERTIFICATE OF COMPETENCY PROCEDURES.

THIS OFFICE HAS CONSISTENTLY UPHELD THAT ASPR PROVISION. THUS, OUR DECISION B-158209, FEBRUARY 23, 1966, HELD IN PART AS FOLLOWS:

"ARMED SERVICES PROCUREMENT REGULATION SECTION 1-705.4(B) PROVIDES THAT IF A BID OF SMALL BUSINESS CONCERN IS TO BE REJECTED SOLELY BECAUSE THE CONTRACTING OFFICER HAS FOUND THE CONCERN TO BE NONRESPONSIBLE AS TO CAPACITY AND CREDIT, THE SMALL BUSINESS ADMINISTRATION SHALL BE NOTIFIED OF THE CIRCUMSTANCES. SECTION 1 705.4(B)(II) OF ASPR STATES THAT FOR PROPOSED AWARDS EXCEEDING $2,500 BUT NOT EXCEEDING $10,000, IT IS DISCRETIONARY WITH THE CONTRACTING OFFICER WHETHER THE MATTER WILL BE REFERRED TO SBA. THE INSTANT PROCUREMENT WAS OVER $2,500 BUT UNDER $10,000; THEREFORE, IT WAS WITHIN THE CONTRACTING OFFICER'S DISCRETION WHETHER THIS MATTER WOULD BE REFERRED TO SBA." TO THE SAME EFFECT, SEE B- 167142, JULY 23, 1969; B 169330, MAY 14, 1970; AND B-169570, JUNE 1, 1970.

WHILE A DIFFERENT CONCLUSION MIGHT BE REQUIRED OR JUSTIFIED IN CASES WHERE THE RECORD INDICATES THAT THERE IS NO SUBSTANTIAL EVIDENCE TO SUPPORT THE CONTRACTING OFFICER'S DETERMINATION NOT TO REFER THE QUESTION TO SBA, SUCH IS NOT THE CASE IN THE INSTANT PROCUREMENT. NOT ONLY DOES THE RECORD INDICATE THAT THE SURVEY TEAM ORIGINALLY RATED YOUR COMPANY UNSATISFACTORY IN SIX OF EIGHT AREAS, BUT A SUPPLEMENTAL REPORT FURNISHED BY THE SURVEY TEAM SETS OUT IN DETAIL THE DEFICIENCIES ON WHICH THE NEGATIVE FINDINGS IN EACH AREA WERE BASED.

IN VIEW THEREOF, WE MUST CONCLUDE THAT THE CONTRACTING OFFICER'S DECISION NOT TO REFER THE QUESTION OF YOUR RESPONSIBILITY TO SBA IN THE INSTANT CASE WAS A PROPER EXERCISE OF HIS DISCRETIONARY AUTHORITY UNDER ASPR 1- 705.4(C). ACCORDINGLY, YOUR PROTEST MUST BE DENIED.