B-169317, MAY 14, 1970

B-169317, MAY 14, 1970

BIDDERS--QUALIFICATIONS--PRIOR UNSATISFACTORY SERVICE--ADMINISTRATIVE DETERMINATION UNDER INVITATION FOR OVERHAULING AND REPAIRS TO ARMY VESSEL, UNSUCCESSFUL LOW BIDDER, DETERMINED NONRESPONSIBLE, WHO PROTESTS BID REJECTION, OFFERS NO BASIS FOR OBJECTION SINCE DETERMINATION WAS BASED UPON POOR PERFORMANCE UNDER JOB ORDERS COVERING OVERHAUL AND REPAIRS TO 4 VESSELS. UNSATISFACTORY PERFORMANCE AND DELINQUENCIES WERE RESULT OF FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE. ABILITY TO PERFORM IS FOR DETERMINATION PRIMARILY BY CONTRACTING AGENCY AND, ABSENT SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS THEREFOR, GAO WILL NOT QUESTION DETERMINATION. RECORD HERE PROVIDES BASIS FOR DETERMINATION. SEE COMP. GEN. DECS. CITED.

TO MURPHY MARINE RAILWAY, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF MARCH 13, 1970, PROTESTING THE DETERMINATION THAT YOUR COMPANY WAS A NONRESPONSIBLE BIDDER UNDER INVITATION FOR BIDS NO. DAAK01-70-B-0192 ISSUED BY THE U.S. ARMY MOBILITY EQUIPMENT COMMAND, HAMPTON ROADS PROCUREMENT DETACHMENT, NORFOLK, VIRGINIA.

THE INVITATION, DATED JANUARY 13, 1970, A TOTAL SET-ASIDE FOR SMALL BUSINESS CONCERNS, REQUESTED BIDS FOR PROGRAMMED DRYDOCKING, CLEANING, PAINTING AND REPAIRS TO U.S. ARMY VESSEL LCU-1587. EIGHT BIDS, RANGING FROM $25,986 TO $42,631, WERE RECEIVED AND OPENED ON JANUARY 26, 1970.

ALTHOUGH YOU SUBMITTED THE LOW BID, IT WAS NOT ACCEPTED SINCE IT WAS DETERMINED BY THE CONTRACTING OFFICER THAT YOU WERE NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR.

THE DETERMINATION WAS BASED UPON YOUR POOR PERFORMANCE UNDER JOB ORDERS COVERING OVERHAUL AND REPAIRS TO U.S. ARMY VESSELS LCU-1545, 1561, -1543 AND Q-643. THE POOR PERFORMANCE INCLUDED OVERRUNS IN JOB COMPLETION TIMES, SERVICES NOT FURNISHED IN ACCORDANCE WITH ESSENTIAL REQUIREMENTS OF THE SPECIFICATIONS, RESULTING IN THE NECESSITY FOR WORK BY OTHER CONTRACTORS, AND FAULTY AND POOR WORKMANSHIP. IT WAS DETERMINED THAT THE UNSATISFACTORY PERFORMANCES AND DELINQUENCIES WERE THE RESULT OF A FAILURE TO APPLY THE NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB. ASPR 1-903.1 (III) STATES:

"* * * PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB, SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY. * * *" FURTHER, IT WAS NOT NECESSARY THAT THIS BE SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION FOR A CERTIFICATE OF COMPETENCY SINCE YOUR NONRESPONSIBILITY WAS NOT ATTRIBUTED TO A LACK OF CAPACITY OR CREDIT. 37 COMP. GEN. 798 (1958); 38 ID. 289 (1958); 43 ID. 257 (1963) AND 43 ID. 298 (1963).

CONTRACTS FOR TOTAL SMALL BUSINESS SET-ASIDES MAY BE ENTERED INTO BY A SPECIAL METHOD OF PROCUREMENT, AS WAS USED IN THIS CASE, KNOWN AS "SMALL BUSINESS RESTRICTED ADVERTISING," WHICH IS CONDUCTED THE SAME AS FORMAL ADVERTISING, EXCEPT THAT BIDS AND AWARDS ARE RESTRICTED TO SMALL BUSINESS CONCERNS. ASPR 1-706.5 (B). IT IS PROVIDED AT 10 U.S.C. 2305 (C) THAT CONTRACTS SHALL BE AWARDED PURSUANT TO FORMAL ADVERTISING ONLY TO "THE RESPONSIBLE BIDDER." CONSISTENT WITH THIS STATUTORY REQUIREMENT, ASPR 1- 904.1 PRECLUDES AWARDS UNLESS THE CONTRACTING OFFICER FIRST MAKES AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE MEANING OF ASPR 1-902. ONE OF THE FACTORS OF RESPONSIBILITY SET OUT AT ASPR 1-903.1 (III) IS THAT A PROSPECTIVE CONTRACTOR TO QUALIFY AS RESPONSIBLE MUST HAVE A SATISFACTORY RECORD OF PERFORMANCE. THE DETERMINATION OF NONRESPONSIBILITY MADE BY THE CONTRACTING OFFICER HERE WAS BASED UPON THE RECORD OF PRIOR POOR CONTRACT PERFORMANCE BY YOUR COMPANY. ONE OF THE SIGNIFICANT FACTORS IN DETERMINING THE RESPONSIBILITY OF A BIDDER IS HIS APPARENT ABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS SET OUT IN THE INVITATION. SUCH ABILITY IS FOR DETERMINATION PRIMARILY BY THE CONTRACTING AGENCY AND, ABSENT A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR, WE WILL NOT QUESTION THE VALIDITY OF THE DETERMINATION. 37 COMP. GEN. 430, 435 (1957); 38 ID. 778 (1959); 43 ID. 228 (1963).

THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S PROBABLE ABILITY TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH MUST, OF NECESSITY BE A MATTER OF JUDGMENT. SUCH JUDGMENT SHOULD, OF COURSE, BE BASED ON FACT AND REACHED IN GOOD FAITH; HOWEVER, IT IS ONLY PROPER THAT IT BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICER INVOLVED SINCE HE IS IN THE BEST POSITION TO ASSESS RESPONSIBILITY. ALSO, HE IS THE OFFICIAL WHO MUST BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED IN OBTAINING REQUIRED PERFORMANCE AND THE ONE WHO MUST MAINTAIN DAY TO DAY RELATIONS WITH THE CONTRACTOR ON THE GOVERNMENT'S BEHALF. 39 COMP. GEN. 705, 711 (1960).

WE BELIEVE THAT THE RECORD IN THIS CASE PROVIDES A BASIS FOR THE DETERMINATION THAT WAS MADE. ACCORDINGLY, IN VIEW OF THE FOREGOING, YOUR PROTEST IS DENIED.