B-164606, AUG. 6, 1968

B-164606, AUG. 6, 1968

TO BREVARD LANDSCAPING SERVICE:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 18, 1968, AND LETTER OF JULY 6, 1968, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 68-669, ISSUED ON MAY 27, 1968, BY THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, FEDERAL HOUSING ADMINISTRATION, FOR YARD MAINTENANCE SERVICES IN THE COCOA AREA OF FLORIDA. THE INVITATION PROVIDED FOR PERFORMANCE OF THE WORK FOR A PERIOD OF 24 MONTHS FROM THE DATE SPECIFIED IN THE NOTICE OF AWARD.

BIDS WERE OPENED ON JUNE 10, 1968, AND THREE BIDS WERE RECEIVED. YOUR BID AT A UNIT PRICE PER MOWING SERVICE PER PROPERTY OF $3.77 LESS A DISCOUNT OF 2 PERCENT, 20 DAYS, WAS LOW. THE OTHER BIDS WERE FROM PAULSEN'S LAWN CARE AT A UNIT PRICE PER MOWING SERVICE PER PROPERTY OF $3.75 AND FROM REV-CUT MOWER COMPANY AT A UNIT PRICE PER PROPERTY OF $3.80 FOR THE MOWER SERVICES.

FHA'S USUAL PRACTICE WITH RESPECT TO SERVICES OF THE TYPE SPECIFIED IN THE INSTANT PROCUREMENT IS TO INSPECT THE WORK ON A RANDOM SAMPLING BASIS. IN DETERMINING A BIDDER'S RESPONSIBILITY CONSIDERABLE WEIGHT IS GIVEN TO THE BIDDER'S RECORD OF CURRENT OR PAST PERFORMANCE. IT WAS FOUND THAT THE PERFORMANCE UNDER YOUR PRIOR CONTRACT FOR SERVICES SIMILAR TO THOSE SPECIFIED IN THE INSTANT PROCUREMENT WAS POOR AND THAT ADMINISTRATIVE SUPERVISION AND RELATED COSTS WITH RESPECT TO THAT CONTRACT WERE EXCESSIVE. WHILE WE DO NOT BELIEVE IT WOULD BE APPROPRIATE TO SET THE FACTS OUT IN GREAT DETAIL IN THIS LETTER, THE CONTRACTING AGENCY HAS MADE AVAILABLE TO US FILES OF CORRESPONDENCE INDICATING THE DIFFICULTIES EXPERIENCED IN CONNECTION WITH YOUR PERFORMANCE UNDER THE EARLIER CONTRACT. BASED ON THE RECORD OF POOR SERVICE UNDER THE PRIOR CONTRACT THE CONTRACTING OFFICER DETERMINED THAT YOU WERE NOT A RESPONSIBLE BIDDER FOR THE INSTANT PROCUREMENT. BY LETTER OF JUNE 28, 1968, YOU WERE ADVISED OF THE CONTRACTING OFFICER'S DETERMINATION. THE CONTRACTING OFFICER HAS ADVISED THAT SINCE FHA'S CURRENT CONTRACT FOR YARD MAINTENANCE SERVICES IN THE COCOA AREA WAS TO EXPIRE ON JUNE 30, 1968, AWARD WAS MADE TO THE SECOND LOW BIDDER ON JUNE 28, 1968.

YOU CONTEND THAT THE CONTRACTING OFFICER WAS NOT JUSTIFIED IN FINDING YOU NOT RESPONSIBLE BASED ON UNSATISFACTORY SERVICE UNDER A PRIOR CONTRACT WHICH WAS NEVER TERMINATED FOR DEFAULT.

WE HAVE BEEN ADVISED BY THE CONTRACTING OFFICER THAT THE MATTER OF YOUR RESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR POSSIBLE ISSUANCE OF A CERTIFICATE OF COMPETENCY (COC) PURSUANT TO FPR 1- 1.708-2 BECAUSE THE CONTRACTING OFFICER HAD DETERMINED THAT YOUR NONRESPONSIBILITY WAS BASED ON FACTORS OTHER THAN CAPACITY OR CREDIT AND, PURSUANT TO FPR 1-1.708-2 (A) (4), THE COC PROCEDURE WAS NOT APPLICABLE; RATHER IN SUCH CASES THE MATTER IS LEFT TO THE DETERMINATION OF THE CONTRACTING AGENCY. CF. B-157943, MARCH 31, 1966.

IF EACH OF THE DEFICIENCIES UNDER YOUR PRIOR CONTRACT WERE CONSIDERED INDIVIDUALLY THEY MIGHT PERHAPS BE CONSIDERED AS RELATIVELY MINOR. HOWEVER, THE CUMULATIVE EFFECT OF THE PERFORMANCE UNDER YOUR PRIOR CONTRACT WAS TO UNDULY INCREASE THE BURDEN OF ADMINISTRATION FROM THE GOVERNMENT'S STANDPOINT. TERMINATION OF A CONTRACT FOR DEFAULT IS NOT A MANDATORY PREREQUISITE TO A SUBSEQUENT DETERMINATION OF NONRESPONSIBILITY BASED ON UNSATISFACTORY PRIOR SERVICE. CF. B 157943, MARCH 31, 1966. BIDDER'S RESPONSIBILITY IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY RATHER THAN THE GENERAL ACCOUNTING OFFICE, AND THAT DETERMINATION IS BINDING IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS THEREFOR. SEE B 146372, SEPTEMBER 8, 1961, AND CASES CITED THEREIN. SEE ALSO B-157943, MARCH 31, 1966. WE FIND THAT THE RECORD IN THIS CASE IS ADEQUATE TO SUPPORT THE CONTRACTING OFFICER'S DETERMINATION THAT YOU WERE NOT A RESPONSIBLE BIDDER FOR THE INSTANT PROCUREMENT.