Mexican Intermodal Equipment, S.A. de C.V.

B-270144 Jan 31, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Contracting officer reasonably determined that protester was not a responsible prospective contractor based upon reasonably based negative pre-award survey findings with regard to protester's production. Which was issued on September 14. Seven proposals were received by the September 22 closing date. The agency conducted discussions with all offerors whose proposals were in the competitive range and solicited best and final offers (BAFO). MIE's BAFO was the lowest-priced. The contracting officer determined that MIE was not a responsible prospective contractor. MIE complained to the contracting officer that since it was an affiliate of OCC. The contracting officer should have referred her determination of nonresponsibility to the cognizant Small Business Administration (SBA) Regional Office. View Decision Matter of: Mexican Intermodal Equipment, S.A. de C.V. File: B-270144 Date: January 31, 1996 Contracting officer reasonably determined that protester was not a responsible prospective contractor based upon reasonably based negative pre-award survey findings with regard to protester's production, technical, and transportation capabilities. Attorneys DECISION Mexican Intermodal Equipment, S.A. de C.V. (MIE) protests the rejection of its offer under request for proposals (RFP) No. N62387-95-R-3094, issued by the Department of the Navy, Military Sealift Command for freight containers. The protester argues that the contracting officer unreasonably determined it to be nonresponsible. We deny the protest. BACKGROUND The RFP, which was issued on September 14, 1995, sought offers for the manufacture and delivery of 500 "end opening" 20-foot dry cargo freight containers, with award to be made to the lowest-priced, technically acceptable, responsible offeror. Seven proposals were received by the September 22 closing date. The agency conducted discussions with all offerors whose proposals were in the competitive range and solicited best and final offers (BAFO). MIE's BAFO was the lowest-priced, technically acceptable offer. The contracting officer determined that MIE was not a responsible prospective contractor, however, and on September 29, the agency awarded a contract to another offeror, MTI, Inc. On October 3, the contracting officer notified MIE that it had been determined nonresponsible based on its poor performance under two prior Marine Corps contracts and the adverse findings of a Defense Contract Management Area Operations (DCMAO) office pre-award survey, which had just been conducted in conjunction with an ongoing Marine Corps procurement for containers. The agency explains that in seeking to determine MIE's responsibility, the contracting officer asked the Marine Corps, Blount Island Command, for performance data regarding two contracts that MIE had recently performed as a subcontractor for its parent company, Olympic Container Corporation (OCC). [1] The Marine Corps replied that MIE's first article had failed testing under the earlier of the two contracts and that MIE had delivered a year late on both contracts. In addition, the DCMAO pre-award survey of MIE in connection with the ongoing Marine Corps procurement recommended no award based on negative findings in the areas of production capability, technical capability, and transportation capability. By letter dated October 4, MIE complained to the contracting officer that since it was an affiliate of OCC, a United States (U.S.) small business concern, the contracting officer should have referred her determination of nonresponsibility to the cognizant Small Business Administration (SBA) Regional Office, pursuant to Federal Acquisition Regulation (FAR) Sec. 19.602. The contracting officer responded that MIE could not be considered a small business because MIE had certified in its offer that it was a Mexican corporation, and because MIE did not have income effectively connected with the conduct of a trade or business in the U.S., or an office or place of business or a fiscal paying agent in the U.S. By letter dated October 9, the protester asked the contracting officer to reconsider both her refusal to refer the matter of its responsibility to the SBA and her underlying determination of nonresponsibility. On October 10, MIE filed a protest with our Office. Subsequent to the filing of MIE's protest with our Office, the contracting officer contacted the SBA and asked it to determine whether MIE was indeed a small business under the relevant standard industrial classification code, and, if so, whether it was eligible for a certificate of competency (COC). Our Office also contacted the SBA and asked for its opinion as to whether MIE was eligible to apply for a COC. On November 29, the SBA ruled that MIE does not meet the definition of a business concern eligible for assistance as a small business and thus is ineligible for COC consideration.