B-164606, MAY 21, 1969

B-164606, MAY 21, 1969

TO BREVARD LANDSCAPING SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1969, REQUESTING RECONSIDERATION OF OUR DECISION, B-164606, AUGUST 6, 1968, IN WHICH WE DENIED YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANOTHER CONCERN UNDER INVITATION FOR BIDS NO. 68-669, ISSUED BY THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD), FEDERAL HOUSING ADMINISTRATION (FHA), FOR YARD MAINTENANCE SERVICES IN THE COCOA AREA OF FLORIDA. IN THAT DECISION WE FOUND THAT THERE WAS NO BASIS FOR QUESTIONING THE CONTRACTING OFFICER'S DETERMINATION THAT YOU WERE NOT A RESPONSIBLE BIDDER FOR PURPOSES OF THAT PROCUREMENT.

THE CONTENTION IN YOUR LETTER OF MARCH 25, 1969, IS THAT THE CONTRACTING OFFICER RELIED ON INACCURATE INFORMATION FURNISHED BY THE FHA TAMPA OFFICE REGARDING YOUR PERFORMANCE UNDER CONTRACT NO. 067-178, THE PRIOR YARD MAINTENANCE CONTRACT, IN MAKING HIS DETERMINATION THAT YOU WERE NOT A RESPONSIBLE BIDDER. IT IS URGED THAT THIS INACCURATE INFORMATION WAS FURNISHED BECAUSE CERTAIN PERSONNEL OF THE TAMPA OFFICE HAVE "PERSONAL FEELINGS" AGAINST YOU AND YOUR COMPANY. ENCLOSED WITH YOUR LETTER OF MARCH 25, 1969, ARE SEVERAL LETTERS FROM AN FHA BROKER TO THE FHA TAMPA OFFICE, RELATING TO CONTRACT NO. 067-178. THESE LETTERS ADVISE THAT FOR THE PERIODS COVERED BY THE LETTERS THE PROPERTIES WERE REGULARLY INSPECTED AND THE WORK WAS FOUND TO HAVE BEEN SATISFACTORILY COMPLETED.

THE FOLLOWING EXCERPT FROM B-161098, APRIL 17, 1968, INDICATES THE STANDARD OF REVIEW BY THIS OFFICE WITH RESPECT TO ADMINISTRATIVE DETERMINATIONS OF A BIDDER'S RESPONSIBILITY:

"WE HAVE STATED THAT IN REVIEWING THE VALIDITY OF A CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY, THE DETERMINATION MUST BE JUDGED ON THE BASIS OF INFORMATION BEFORE HIM AT THE TIME IT WAS MADE. ALSO THAT A DETERMINATION OF A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IS OF NECESSITY A MATTER OF JUDGMENT AND WHILE SUCH DETERMINATION SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICER INVOLVED. SEE B-161977, JANUARY 22, 1968, 47 COMP. GEN. -----.' WITH RESPECT TO THE CONTENTION THAT FHA'S TAMPA OFFICE FURNISHED THE CONTRACTING OFFICER WITH ERRONEOUS INFORMATION BECAUSE OF PERSONAL FEELINGS AGAINST YOU, THIS IS A MATTER TO BE CONSIDERED BY HUD IN ITS CURRENT INVESTIGATION OF FHA'S TAMPA OFFICE. THE LETTERS FROM FHA'S BROKER WOULD NOT CONCLUSIVELY ESTABLISH THAT YOUR PERFORMANCE UNDER CONTRACT NO. 067-178, WAS SATISFACTORY FOR THE ENTIRE PERIOD OF THE CONTRACT. A LETTER FROM ANOTHER FHA BROKER, DATED AUGUST 31, 1967, EXPRESSES THE OPINION THAT "MR. LIDDY HAS BEEN TOO BUSY TO PROPERLY SUPERVISE HIS LAWN CONTRACT * * *.' IN THE ABSENCE OF A CLEAR SHOWING THAT THE CONTRACTING OFFICER WAS AWARE AT THE TIME OF HIS DETERMINATION REGARDING YOUR RESPONSIBILITY THAT SUCH DETERMINATION WAS BASED ON ERRONEOUS INFORMATION, THERE IS NO BASIS FOR CONCLUDING THAT THE CONTRACTING OFFICER ACTED IN AN ARBITRARY OR CAPRICIOUS MANNER. CONSEQUENTLY, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER.

THE LETTER OF MARCH 25, 1969, URGES THAT "THERE IS NOTHING IN THE CONTRACT DOCUMENT WHICH WOULD INDICATE THAT THE CONTRACTOR WOULD BE RESPONSIBLE OR SUBJECT TO INSPECTION BY THE FHA FIELD OFFICE IN TAMPA.' IN SUPPORT OF THIS POSITION YOU CITE SECTION 9, ON PAGES 8 AND 9, OF THE SPECIAL PROVISIONS ENTITLED "INSPECTION AND ACCEPTANCE OF WORK" OF CONTRACT NO. 067-178, WHICH PROVIDES IN PART:

"ALL WORK IS SUBJECT TO INSPECTION AND FINAL ACCEPTANCE BY THE FHA BROKER.' IN EFFECT THE INTERPRETATION URGED BY YOU PRECLUDES THE CONTRACTING OFFICER FROM CONSIDERING POOR PRIOR PERFORMANCE IN MAKING A DETERMINATION REGARDING A BIDDER'S RESPONSIBILITY UNLESS SUCH INFORMATION IS FURNISHED BY THE FHA BROKER. THE DETERMINATION OF YOUR RESPONSIBILITY FOR AWARD UNDER INVITATION FOR BIDS NO. 68-669, IS A MATTER WHICH IS WHOLLY UNRELATED TO WHAT WAS INTENDED TO BE COVERED BY SECTION 9 OF THE SPECIAL PROVISIONS OF YOUR LAWN MAINTENANCE CONTRACT. WE THEREFORE CANNOT AGREE WITH YOUR CONTENTION THAT THE CONTRACTING OFFICER SHOULD ONLY CONSIDER INFORMATION FURNISHED BY FHA BROKERS IN MAKING HIS DETERMINATION REGARDING YOUR RESPONSIBILITY.

YOUR LETTER OF MARCH 25, 1969, ADVISES THAT BY LETTER OF DECEMBER 12, 1966, YOU REQUESTED AN INTERPRETATION FROM THE CONTRACTING OFFICER REGARDING A CERTAIN CONTRACT REQUIREMENT AND THAT YOU WERE NOT FURNISHED WITH THE INTERPRETATION REQUESTED BY YOU. A LETTER DATED FEBRUARY 10, 1967, FROM THE DIRECTOR OF THE FHA TAMPA OFFICE TO YOU INDICATES THAT THE DIRECTOR HAD BEEN ADVISED THAT THE CONTRACT SHOULD BE INTERPRETED SUBSTANTIALLY AS REQUESTED BY YOU IN YOUR LETTER OF DECEMBER 12, 1966. WHILE TECHNICALLY YOU MAY NOT HAVE BEEN FURNISHED WITH THE FORMAL INTERPRETATION REQUESTED BY YOU, IT DOES NOT SEEM THAT THIS WAS PREJUDICIAL TO YOU.

THE LETTER OF MARCH 25, 1969, ALSO ADVISES OF PURPORTED HARASSMENT OF YOUR WIFE BY CERTAIN OF THE FHA TAMPA OFFICE'S PERSONNEL. THIS MATTER HAD PREVIOUSLY BEEN RAISED BY YOU IN A LETTER TO OUR OFFICE DATED FEBRUARY 6, 1968. WE RECENTLY ADVISED YOU IN OUR LETTER, B-163507, APRIL 24, 1969, THAT HUD IS PRESENTLY CONDUCTING AN INVESTIGATION OF THE BIDDING AND AWARD PROCEDURES IN THE FHA TAMPA OFFICE. YOUR CONTENTION WITH REGARD TO THE HARASSMENT OF YOUR WIFE IS A MATTER TO BE CONSIDERED BY HUD IN ITS CURRENT INVESTIGATION. AS INDICATED IN OUR LETTER TO YOU, B-163507, APRIL 24, 1969, OUR OFFICE WILL REVIEW THE RESULTS OF HUD'S INVESTIGATION.

IN VIEW OF THE FOREGOING, OUR DECISION, B-164606, AUGUST 6, 1968, IS AFFIRMED.