B-162970, MAR. 5, 1968

B-162970, MAR. 5, 1968

BIDDERS - RESPONSIBILITY - EXPERIENCE DECISION TO ARTHUR J. KEANE DENYING REJECTION OF LOW BID FOR ELEVATOR MAINTENANCE SERVICE BY BOSTON ARMY BASE ON BASIS OF NONRESPONSIBILITY. A LOW BIDDER WHO DID NOT FURNISH INFORMATION AS TO NECESSARY QUALIFICATIONS OR WHO IS NOT SHOWN TO HAVE EMPLOYEES FACILITIES OR ABILITY TO OBTAIN SERVICES ON DATE OF AWARD HAD BID PROPERLY REJECTED SINCE CONTRACTING OFFICER COULD NOT HAVE AFFIRMATIVELY DETERMINED UNDER ASPR 1- 904.1 THAT BIDDER WAS A RESPONSIBLE PROSPECTIVE BIDDER. IN ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR NONRESPONSIBILITY DETERMINATION ADMINISTRATIVE DETERMINATION IS NOT SUBJECT TO INTERFERENCE. PEARLMAN V CITY OF PITTSBURGH, 304 PA. 24, SILLITA V CEDAR GROVE TOWNSHIP, 133 N.J.L. 41.

TO MR. ARTHUR J. KEANE:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 18, 1967, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED UNDER SOLICITATION NO. DABB04-67-B-0004, ISSUED ON MAY 26, 1967, BY THE BOSTON ARMY BASE, COVERING THE INSPECTION AND MAINTENANCE OF ELEVATORS AT THE BASE. TWO BIDS WERE RECEIVED AND OPENED ON JUNE 20, 1967 - YOUR BID IN THE GROSS AMOUNT OF $26,640 AND CONSOLIDATED ELEVATOR COMPANY'S BID IN THE GROSS AMOUNT OF $29,568.

HOWEVER, THE PROCUREMENT ACTIVITY FOUND THAT YOU DID NOT QUALIFY AS A RESPONSIBLE PROSPECTIVE CONTRACTOR SINCE YOU WERE UNABLE TO ESTABLISH THAT YOU HAD THE NECESSARY ORGANIZATION AND FACILITIES TO PERFORM THE CONTRACT. THE CONTRACT WAS THEREFORE AWARDED TO THE CONSOLIDATED ELEVATOR COMPANY ON JUNE 29, 1967, AS THE LOWEST RESPONSIBLE BIDDER.

THE INVITATION CONTAINED THE FOLLOWING TWO PROVISIONS RESPECTING "SP 4 QUALIFICATIONS OF CONTRACTOR

"A. THE CONTRACTOR MUST DEMONSTRATE TO THE SATISFACTION OF THE CONTRACTING OFFICER THAT HE HAS AVAILABLE UNDER HIS DIRECT EMPLOYMENT AND SUPERVISION THE NECESSARY ORGANIZATION AND FACILITIES LOCATED WITHIN A REASONABLE DISTANCE FROM THE INSTALLATION TO FULFILL PROPERLY ALL OF THE SERVICES CONTEMPLATED.

"B. THE CONTRACTOR MUST DEMONSTRATE TO THE SATISFACTION OF THE CONTRACTING OFFICER THAT HE HAS SATISFACTORILY MAINTAINED ELEVATORS OF THE TYPE AND GRADE AND TO THE DEGREE SPECIFIED. "SP-5 MANNER AND TIME OF CONDUCTING WORK

"A. ALL WORK SHALL BE PERFORMED BY SKILLED ELEVATOR MEN DIRECTLY EMPLOYED AND SUPERVISED BY THE CONTRACTOR, AND THESE MEN SHALL BE PAID AT THE PREVAILING RATES OF WAGES FOR THE CORRESPONDING CLASS OF LABOR IN THE LOCALITY WHERE THE WORK IS BEING PERFORMED.'

A QUESTIONNAIRE FORM WAS FURNISHED TO YOU RELATING TO THESE NECESSARY QUALIFICATIONS, BUT YOU DID NOT RETURN SUCH FORM TO THE CONTRACTING ACTIVITY OR OTHERWISE PRESENT PROOF OF YOUR QUALIFICATIONS. IN FACT, THE RECORD SHOWS THAT YOU DID NOT HAVE ANY EMPLOYEES, A PLACE OF BUSINESS OR FACILITIES TO PERFORM THE CONTRACT SERVICES, OR THE ABILITY TO OBTAIN THEM AT THE DATE OF AWARD.

A DETERMINATION OF WHETHER SPECIFICATIONS SETTING OUT QUALIFICATIONS REQUIRED OF BIDDERS PROPOSING TO FURNISH SERVICES IN A SPECIALIZED FIELD ARE RESTRICTIVE OR DISCRIMINATORY DEPENDS UPON WHETHER THE BEST INTERESTS OF THE GOVERNMENT MAY BE REASONABLY SAID TO NECESSITATE THE IMPOSITION OF SUCH REQUIREMENTS. 37 COMP. GEN. 196; 35ID. 161; 26ID. 676; 20ID. 862, 865. DETERMINATIONS WITH RESPECT TO TYPES OF EXPERIENCE, EXTENT OF SUCH EXPERIENCE, AND THE METHOD OF PROVING EXPERIENCE ARE, IN THE FIRST INSTANCE, SOLELY WITHIN THE PROVINCE OF THE PROCURING AGENCY, AND IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE REQUIREMENTS IMPOSED BY A PROCURING AGENCY IN THIS AREA ARE CLEARLY UNNECESSARY TO MEET AN AGENCY'S NEEDS AND ADEQUATELY PROTECT THE INTERESTS OF THE GOVERNMENT, OR ARE SO RESTRICTIVE AS TO LIMIT COMPETITION TO THE EXTENT THAT THE GOVERNMENT IS DEPRIVED OF THE BENEFITS OF COMPETITIVE BIDDING, OUR OFFICE IS NOT INCLINED TO SUBSTITUTE ITS JUDGMENT FOR THAT OF THE PROCURING AGENCY.

THE PERTINENT STATUTORY PROVISION FOR APPLICATION IS THAT "AWARD SHALL BE MADE * * * TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.' 10 U.S.C. 2305. UNDER SIMILAR STATE STATUTES REQUIRING AWARDS TO THE LOWEST RESPONSIBLE BIDDER, IT IS HELD THAT RESPONSIBILITY IS A QUESTION OF FACT, AND THAT REJECTION OF THE LOWEST BIDDER ON THE GROUND OF LACK OF RESPONSIBILITY MUST BE BASED UPON A FULL AND HONEST INVESTIGATION OF THE QUALIFICATIONS OF THE BIDDER (PEARLMAN V CITY OF PITTSBURGH, 304 PA. 24, 155A. 119); OR SUPPORTED BY A FINDING THAT THE BIDDER WAS SO LACKING IN THE EXPERIENCE, FINANCIAL ABILITY, MACHINERY AND FACILITIES NECESSARY TO PERFORM THE CONTRACT AS TO JUSTIFY A BELIEF UPON THE PART OF FAIR MINDED AND REASONABLE MEN THAT HE WOULD NOT BE ABLE TO PERFORM THE CONTRACT (SILLITA V CEDAR GROVE TOWNSHIP, 133 N.J.L. 41, 42 A.2D 383).

THE UNDERLYING QUESTION IS WHETHER YOU WERE A RESPONSIBLE BIDDER QUALIFIED TO MEET THE COMMITMENT YOU UNDERTOOK WHEN YOU SUBMITTED YOUR BID, AND INSOFAR AS YOUR VIEWS ARE AT VARIANCE WITH THE RECORD BEFORE US, WE ARE BOUND BY THE WELL-SETTLED RULE THAT PROHIBITS ANY INTERFERENCE WITH ADMINISTRATIVE DETERMINATIONS OF RESPONSIBILITY IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR. SEE 39 COMP. GEN. 705.

IN VIEW OF THE FOREGOING, AND SINCE IT IS APPARENT THAT THE CONTRACTING OFFICER COULD NOT HAVE AFFIRMATIVELY DETERMINED PURSUANT TO ASPR 1-904.1 THAT YOU WERE A RESPONSIBLE PROSPECTIVE CONTRACTOR, WE FIND NO BASIS TO QUESTION THE AWARD MADE TO THE CONSOLIDATED ELEVATOR COMPANY.