B-134165, JUN. 20, 1958

B-134165, JUN. 20, 1958

TO A. BELANGER AND SONS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 4, 1958, REQUESTING RECONSIDERATION OF OUR DECISION OF DECEMBER 19, 1957, WHICH CONCLUDED THAT YOUR BID ON AN AIR CONDITIONING PROJECT AT KEY WEST, FLORIDA, WAS PROPERLY REJECTED BECAUSE YOU FAILED TO SATISFY THE EXPERIENCE REQUIREMENTS OF THE INVITATION TO BID.

IN YOUR LETTER DATED FEBRUARY 4, 1958, YOU STATE THAT, OUT OF ALL THE GSA REGIONAL OFFICES, ONLY THE ATLANTA OFFICE USES THE BIDDER'S QUALIFICATIONS CLAUSE AND THAT AN INVITATION TO BID ISSUED BY THAT OFFICE SUBSEQUENT TO YOUR PROTEST CONTAINED LESS RESTRICTIVE EXPERIENCE REQUIREMENTS.

THE ATLANTA REGIONAL OFFICE HAS REPLIED THAT THE SUBJECT CLAUSE IS PLACED IN AIR CONDITIONING PROJECT SPECIFICATIONS BECAUSE IT IS THE CONTRACTING OFFICER'S OPINION THAT THE BEST INTERESTS OF THE GOVERNMENT ARE SERVED BY LIMITING THE SELECTION OF A CONTRACTOR TO THOSE HAVING THE NECESSARY EXPERIENCE IN THE AIR CONDITIONING FIELD. WE HAVE HELD THAT THE AWARD OF A CONTRACT MAY BE LIMITED TO THOSE BIDDERS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD WHEN THE INVITATION SO PROVIDES AND IT IS DETERMINED TO BE IN THE INTERESTS OF THE GOVERNMENT. SEE 37 COMP. GEN. 196 AND DECISIONS CITED THEREIN. IN THE ABSENCE OF A DEPARTMENTAL OR AGENCY REGULATION, IT IS NOT MANDATORY THAT THE BIDDER'S QUALIFICATION CLAUSE BE INCLUDED IN EVERY INVITATION ISSUED BY EVERY CONTRACTING OFFICE, BUT RATHER IT IS TO BE INCLUDED WHENEVER THE CONTRACTING OFFICER OR OTHER OFFICIAL HAVING AUTHORITY TO PRESCRIBE THE BIDDING REQUIREMENTS DEEMS IT ESSENTIAL TO PRESERVE THE GOVERNMENT'S INTERESTS.

IT HAS BEEN REPORTED ADMINISTRATIVELY THAT THE EXPERIENCE REQUIREMENTS SUBSEQUENTLY WERE RELAXED BECAUSE OF A LATER DETERMINATION BY THE ATLANTA OFFICE THAT SUCH STRICT REQUIREMENTS NEED NO LONGER BE IMPOSED. THE PREPARATION OF SPECIFICATIONS AND THE ESTABLISHMENT OF EXPERIENCE REQUIREMENTS FOR BIDDERS IS PRIMARILY AN ADMINISTRATIVE FUNCTION. IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE FACTUAL BASIS, OUR OFFICE IS NOT AUTHORIZED TO INTERFERE WITH THE ADMINISTRATIVE ACTION.

THE BIDDER'S QUALIFICATION CLAUSE IN THE INVITATION YOU BID UPON WAS INCLUDED THEREIN BECAUSE IN THE CONTRACTING OFFICER'S CONSIDERED JUDGMENT HE BELIEVED ITS REQUIREMENTS WERE IN THE BEST INTERESTS OF THE GOVERNMENT. THE SUBSEQUENT RELAXATION OF THE EXPERIENCE REQUIREMENT IN A LATER INVITATION PRESUMABLY REFLECTS THE EXPERIENCE GAINED UNDER OTHER CONTRACTS. ALTHOUGH THE REQUIREMENTS SUBSEQUENTLY WERE RELAXED, AT THE TIME THE CONTRACTING OFFICER ISSUED THE INVITATION ON WHICH YOU BID HE HAD A BONA FIDE BELIEF THAT THE INTERESTS OF THE GOVERNMENT WERE BEST SERVED BY THE EXPERIENCE QUALIFICATION HE REQUIRED OF PROSPECTIVE BIDDERS, AND THEREFORE THE BIDDER'S QUALIFICATIONS CLAUSE WAS NOT IMPROPER AND THE ONLY ISSUE PROPERLY PRESENTED BY YOUR PROTEST IS WHETHER YOUR EXPERIENCE SATISFIED THE REQUIREMENTS OF THE INVITATION ON WHICH YOU BID. YOU DID NOT SATISFY THOSE REQUIREMENTS AND SO YOUR BID COULD NOT BE ACCEPTED.

YOU HAVE QUESTIONED THE AWARD OF THE SUBJECT CONTRACT AT AN AMOUNT $7,241 MORE THAN YOUR LOW BID. IT HAS BEEN REPORTED ADMINISTRATIVELY THAT THE CONTRACTING OFFICER WAS OF THE OPINION THAT THE INTERESTS OF THE GOVERNMENT WOULD BE SERVED BEST BY ACCEPTING THE SECOND LOW BID AND THAT THE DIFFERENCE WOULD BE MORE THAN OFFSET BY THE COST OF READVERTISEMENT AND DELAY OF THE AIR CONDITIONING PROGRAM. WHETHER BIDS SHOULD BE REJECTED AND THE PROCUREMENT READVERTISED IS A MATTER OF ADMINISTRATIVE DISCRETION AND THE ACTION OF THE CONTRACTING OFFICER IN MAKING AN AWARD WITHOUT READVERTISING MAY NOT BE CONSIDERED IMPROPER WHEN BASED UPON SUBSTANTIAL REASONS AND HONEST JUDGMENT.

YOU HAVE QUESTIONED THE INVITATION REQUIREMENT FOR A PERFORMANCE BOND AND A PAYMENT BOND. BOTH BONDS ARE REQUIRED BY LAW. SECTION 270A OF TITLE 40, U.S.C. PROVIDES:

"/A) BEFORE ANY CONTRACT, EXCEEDING $2,000 IN AMOUNT, FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK OF THE UNITED STATES IS AWARDED TO ANY PERSON, SUCH PERSON SHALL FURNISH TO THE UNITED STATES THE FOLLOWING BONDS, * * *

"/1) A PERFORMANCE BOND WITH A SURETY OR SURETIES SATISFACTORY TO THE OFFICER AWARDING SUCH CONTRACT, AND IN SUCH AMOUNT AS HE SHALL DEEM ADEQUATE, FOR THE PROTECTION OF THE UNITED STATES.

"/2)A PAYMENT BOND WITH A SURETY OR SURETIES SATISFACTORY TO SUCH OFFICER FOR THE PROTECTION OF ALL PERSONS SUPPLYING LABOR AND MATERIAL IN THE PROSECUTION OF THE WORK PROVIDED FOR IN SAID CONTRACT FOR THE USE OF EACH SUCH PERSON. * * *"

YOU SUGGEST THAT YOU SHOULD HAVE BEEN AWARDED THE CONTRACT FOR WHICH YOU BID BECAUSE YOU WERE FINANCIALLY ABLE TO PERFORM.

THE STATUTES GOVERNING PUBLIC PROCUREMENT THROUGH FORMAL ADVERTISEMENT HAVE BEEN INTERPRETED TO PERMIT AWARD ONLY TO THE RESPONSIBLE BIDDER SUBMITTING THE LOWEST RESPONSIVE BID. IT HAS BEEN RECOGNIZED BOTH BY THIS OFFICE AND BY THE COURTS THAT THE WORD "RESPONSIBLE" IMPORTS SOMETHING MORE THAN PECUNIARY ABILITY AND THAT IN THE SELECTION OF THE LOWEST RESPONSIBLE BIDDER CONTRACTING OFFICERS ARE REQUIRED TO CONSIDER NOT ONLY THE BIDDER'S FINANCIAL RESOURCES BUT ALSO HIS JUDGMENT, SKILL, INTEGRITY, FITNESS AND ABILITY TO FULFILL SUCCESSFULLY THE CONTRACT REQUIREMENTS. COMP. GEN. 676; 28 COMP. GEN. 662; AND 30 COMP. GEN. 235. AND AS WE HAVE INDICATED, WHEN IT IS BELIEVED THAT THE REQUIRED QUALITY OF PERFORMANCE CAN BEST BE ASSURED BY AWARD TO A CONTRACTOR WHOSE ABILITY HAS BEEN DEMONSTRATED BY ACTUAL EXPERIENCE AND ACCOMPLISHMENT, SUCH STANDARD MAY BE REQUIRED BY THE TERMS OF THE INVITATION FOR BIDS.