B-151943, MAR. 9, 1964

B-151943, MAR. 9, 1964

TO BOWLAND JANITORIAL SERVICE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1964, REQUESTING RECONSIDERATION OF OUR DECISION OF JANUARY 24, 1964, DENYING YOUR PROTEST AGAINST THE REJECTION OF YOUR BID SUBMITTED UNDER INVITATION FOR BIDS NO. 41-609-63-166 FOR CUSTODIAL-JANITORIAL SERVICES AT BROOKS AIR FORCE BASE, TEXAS, FOR THE PERIOD JULY 1, 1963, TO JUNE 30, 1964.

IT IS STATED THAT THE DECISION ATTEMPTS TO LIMIT THE FACILITY CAPABILITY REPORT ON BOWLAND JANITORIAL SERVICE, INCORPORATED, TO THE FORT WORTH AREA WHEN REGULATIONS REQUIRE A FACILITY CAPABILITY REPORT TO COVER ANY AND ALL THINGS AFFECTING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR; THAT NO MENTION WAS MADE IN THE DECISION OF YOUR POINT, NAMELY THAT THE ONLY MANNER IN WHICH A CONTRACTING OFFICER MAY REJECT A FAVORABLE FACILITY CAPABILITY REPORT IS WHEN CLEAR AND COMPELLING CIRCUMSTANCES DICTATE SUCH ACTION AND IN THAT EVENT COMPLETE DOCUMENTATION IS REQUIRED; AND THAT YOU ARE ENTITLED TO A DEFINITE RULING THAT THE DOCUMENTATION IN THIS CASE IS THE COMPLETE DOCUMENTATION REQUIRED BY AFPI 1-904.1 (A) (III).

ASPR 1-904.1 PROVIDES THAT:

"EXCEPT AS OTHERWISE PROVIDED IN 1-904.2, NO PURCHASE SHALL BE MADE FROM, AND NO CONTRACT SHALL BE AWARDED TO, ANY PERSON OR FIRM UNLESS THE CONTRACTING OFFICER FIRST MAKES, SIGNS AND PLACES IN THE FILE, AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE MEANING OF 1-902 AND 1-903.'

ASPR 1-905 SETS FORTH PROCEDURES FOR DETERMINING RESPONSIBILITY OF PROSPECTIVE CONTRACTORS. THESE REGULATIONS IN THE INSTANT CASE ARE IMPLEMENTED BY AIR FORCE PROCUREMENT INSTRUCTIONS. IN THIS CONNECTION AFPI 1-904.1 (A) (III) PROVIDES, IN PART, AS FOLLOWS:

"THE PCO WILL MAKE, SIGN, AND PLACE IN THE CONTRACT FILE THE NECESSARY DETERMINATION REQUIRED BY ASPR 1-904.1. EXCEPT AS PROVIDED IN SUBPARAGRAPH (IV) BELOW, AN FCR, SSS, OR SSSB RECOMMENDATION WILL CONSTITUTE SUFFICIENT BASIS FOR EITHER AN AFFIRMATIVE OR NEGATIVE FINDING BY A CONTRACTING OFFICER. SEE ALSO PARAGRAPH 1-902.1 (C). THE FCR, SSS, OR SSSB REPORT AND SUPPORTING DATA MADE WILL BE ATTACHED TO THE DETERMINATION. IF ADDITIONAL EXPLANATION OF AN FCR IS REQUIRED, THE PCO WILL REQUEST THE FCR ACTIVITY TO FURNISH ANY DATA HE REQUIRED BEFORE MAKING A DETERMINATION. IF THE PCO IS AWARE OF FACTORS THAT MAY NOT HAVE BEEN CONSIDERED BY THE FCR ACTIVITY, HE MAY REQUEST A REVIEW OF THE FCR IN THE LIGHT OF SUCH INFORMATION BEFORE MAKING A DETERMINATION. IN MAKING THE DETERMINATION, THE PCO THROUGH CHANNELS PRESCRIBED BY HIS COMMAND, MAY REJECT A FCR RECOMMENDATION, PROVIDED CLEAR AND COMPELLING CIRCUMSTANCES DICTATE SUCH ACTION. COMPLETE DOCUMENTATION IS REQUIRED. * * *.'

IT WILL BE NOTED THAT AFPI DOES NOT, AND COULD NOT, RELIEVE THE CONTRACTING OFFICER FROM MAKING AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY AS REQUIRED BY ASPR 1-904.1. AFPI SETS FORTH VARIOUS PROCEDURES FOR AIR FORCE CONTRACTING OFFICERS TO FOLLOW AS A BASIS FOR THE DETERMINATION WITH RESPECT TO RESPONSIBILITY. THE PRECISE PROCEDURE DEPENDS ON THE CIRCUMSTANCES INVOLVED IN EACH PARTICULAR CASE. THE PRE- AWARD SURVEY (FCR) ETC., MERELY FORMS THE BASIS FOR THE CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY, AND DOES NOT OF ITSELF CONSTITUTE THE REQUIRED DETERMINATION. OF COURSE, IF THE INFORMATION WHICH A CONTRACTING OFFICER MAY REQUEST SHOWS THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE, A FINDING OF RESPONSIBILITY WOULD NORMALLY FOLLOW, AND FOR THIS REASON IF THE CONTRACTING OFFICER PROPOSES TO REJECT A FAVORABLE CAPABILITY REPORT, AFPI REQUIRES THAT THE PROPOSED REJECTION BE APPROVED BY A HIGHER AUTHORITY.

IN THE INSTANT CASE THE CONTRACTING OFFICER REQUESTED A FACILITY CAPABILITY REPORT ON BOWLAND JANITORIAL SERVICE, INCORPORATED. THE SURVEY WAS CONDUCTED IN THE FORT WORTH AREA, THE HOME TERRITORY OF BOWLAND JANITORIAL SERVICE AND WAS AFFIRMATIVE AS TO OVER-ALL CAPABILITY AND INDICATED THAT SIMILAR SERVICES WERE BEING SATISFACTORILY PERFORMED FOR VARIOUS CLIENTS. SUCH A REPORT UNDOUBTEDLY WOULD NORMALLY CONSTITUTE AN ADEQUATE BASIS FOR AN AFFIRMATIVE FINDING AS TO RESPONSIBILITY. HOWEVER, THE CONTRACTING OFFICER DID NOT CONSIDER IT AS CONTROLLING, NOR WAS IT APPARENTLY CONSIDERED NECESSARY TO REQUEST FURTHER INFORMATION TO ASCERTAIN WHETHER BOWLAND JANITORIAL SERVICES WAS RENDERING SATISFACTORY SERVICE IN OTHER AREAS, SINCE SUCH INFORMATION WOULD HAVE LITTLE, IF ANY, BEARING UPON THE MATTER IN VIEW OF THE UNSATISFACTORY SERVICES THEN BEING FURNISHED BY BOWLAND JANITORIAL SERVICE UNDER THE EXISTING CONTRACT AT THE BROOKS AIR FORCE BASE. THE CONTRACTING OFFICER DETERMINED THAT BOWLAND JANITORIAL SERVICE WAS NOT A RESPONSIBLE CONTRACTOR IN VIEW OF THE UNSATISFACTORY SERVICE BEING RENDERED BY IT AT BROOKS AIR FORCE BASE. THE PROPOSED FINDING WAS FORWARDED TO HIGHER AUTHORITY FOR APPROVAL AND THE PROPOSED FINDING WAS APPROVED BY HEADQUARTERS, AIR FORCE SYSTEMS COMMAND AS REQUIRED BY AFPI 1-904.1 (A) (III) (INADVERTENTLY REFERRED TO AS AFPI 1 -904.1 (A) (II) ON PAGE 6 OF THE DECISION OF JANUARY 24, 1964).

AS STATED IN DECISION OF JANUARY 24, 1964, IT HAS BEEN CONSISTENTLY HELD THAT DETERMINATION OF A PROSPECTIVE CONTRACTOR'S ABILITY OR WILLINGNESS TO PERFORM, IS PRIMARILY A MATTER FOR ADMINISTRATIVE DETERMINATION AND IN THE ABSENCE OF BAD FAITH AND LACK OF REASONABLE GROUNDS FOR THE DETERMINATION, THERE IS NO BASIS UPON WHICH WE MAY OBJECT. THE EVIDENCE OF RECORD IN THIS CASE IS SUFFICIENT TO SHOW THAT THE DETERMINATION MADE BY THE CONTRACTING OFFICER AND APPROVED BY HIGHER AUTHORITY--- THAT BOWLAND JANITORIAL SERVICE, INCORPORATED WAS NOT A RESPONSIBLE CONTRACTOR DUE TO PRIOR UNSATISFACTORY PERFORMANCE AT BROOKS AIR FORCE BASE, THE SAME PLACE WHERE THE SERVICES HERE INVOLVED WERE TO BE PERFORMED--- WAS BASED UPON SUBSTANTIAL GROUNDS AND WAS NOT FRAUDULENT, CAPRICIOUS, ARBITRARY OR SO GROSSLY ERRONEOUS AS TO NECESSARILY IMPLY BAD FAITH. ACCORDINGLY, THERE IS NO BASIS TO MODIFY THE CONCLUSION REACHED IN THE DECISION OF JANUARY 24, 1964. SEE 39 COMP. GEN. 468.