B-128504, AUG. 21, 1956

B-128504: Aug 21, 1956

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TO NEW BRUNSWICK WINDOW CLEANING COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF JULY 3. YOUR PROTEST IS BASED UPON THE FOLLOWING CONTENTIONS: "1. 544.24 HIGHER THAN BID OF CLIENT WAS NOT MOST ADVANTAGEOUS TO GOVERNMENT. THE ACCEPTANCE OF THE ASBURY PARK WINDOW CLEANING CO BID WAS IN VIOLATION OF LAWS AS SET FORTH IN TITLE 41 OF U.S.C.A. WILL REQUEST A REVIEW OF THE CONTEMPLATED CONTRACT BY THE ASSISTANT SECRETARY OF ARMY. FROM WHICH IT APPEARS THAT DURING THE FISCAL YEAR 1956 YOU PROVIDED CUSTODIAL SERVICES AT FORT MONMOUTH UNDER A CONTRACT AWARDED IN JUNE 1955 AND THAT YOUR PERFORMANCE UNDER THAT CONTRACT WAS HIGHLY UNSATISFACTORY. IT WAS DETERMINED ON A PRE-AWARD SURVEY THAT YOU WERE NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR.

B-128504, AUG. 21, 1956

TO NEW BRUNSWICK WINDOW CLEANING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX OF JULY 3, 1956, PROTESTING THE REFUSAL OF THE SIGNAL CORPS, U.S. ARMY, TO AWARD YOU A CONTRACT FOR CUSTODIAL SERVICES AT FORT MONMOUTH NEW JERSEY, PURSUANT TO INVITATION FOR BIDS NO. 28-043-56-144.

YOUR PROTEST IS BASED UPON THE FOLLOWING CONTENTIONS:

"1. THE AWARDING OF BID TO ASBURY PARK WINDOW CLEANING CO FOR $142,544.24 HIGHER THAN BID OF CLIENT WAS NOT MOST ADVANTAGEOUS TO GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

"2. THE ACCEPTANCE OF THE ASBURY PARK WINDOW CLEANING CO BID WAS IN VIOLATION OF LAWS AS SET FORTH IN TITLE 41 OF U.S.C.A. WITH RESPECT TO PROCUREMENT BY ARMED SERVICES AND ALSO IN VIOLATION OF ARMED SERVICES PROCUREMENT REGULATIONS.

"3. NEW BRUNSWICK WINDOW CLEANING CO. WILL REQUEST A REVIEW OF THE CONTEMPLATED CONTRACT BY THE ASSISTANT SECRETARY OF ARMY, LOGISTICS AND RESEARCH AND OTHER AUTHORIZED GOVERNMENTAL NCIES.'

THE DEPARTMENT OF THE ARMY HAS FURNISHED COPIES OF DOCUMENTS AND REPORTS BEARING UPON YOUR PROTEST, INCLUDING A REPORT BY THE PURCHASING AND CONTRACTING OFFICER AT FORT MONMOUTH, NEW JERSEY, FROM WHICH IT APPEARS THAT DURING THE FISCAL YEAR 1956 YOU PROVIDED CUSTODIAL SERVICES AT FORT MONMOUTH UNDER A CONTRACT AWARDED IN JUNE 1955 AND THAT YOUR PERFORMANCE UNDER THAT CONTRACT WAS HIGHLY UNSATISFACTORY. IN ADDITION TO SUBSTANDARD AND DEFICIENT PERFORMANCE BY YOUR COMPANY UNDER YOUR PRIOR CONTRACT OR CONTRACTS WITH THE GOVERNMENT, IT WAS DETERMINED ON A PRE-AWARD SURVEY THAT YOU WERE NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR. THIS DETERMINATION WAS BASED UPON FINDINGS RESULTING FROM VARIOUS INVESTIGATIONS BY THE CID AND THE FBI AND SUFFICE IT TO SAY SUCH FINDINGS APPEAR TO FURNISH MORE THAN ADEQUATE SUPPORT FOR THE DETERMINATION AS MADE.

IT HAS BEEN HELD MANY TIMES BY OUR OFFICE AND THE COURTS THAT WHERE A CONTRACT MUST BE AWARDED AFTER ADVERTISING FOR BIDS, AS IN THE PRESENT CASE, THE ACCEPTANCE OF THE BID SUBMITTED BY A BIDDER NOT SHOWN TO BE QUALIFIED TO PERFORM THE ADVERTISED SERVICE IS NOT REQUIRED. 20 COMP. GEN. 862; O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762 AND THE RECENT CASE OF FRIEND V. LEE, DECIDED BY THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA ON MARCH 17, 1955. IT HAS BEEN HELD ALSO THAT IN DETERMINING WHETHER A BIDDER IS RESPONSIBLE THERE MUST NECESSARILY BE TAKEN INTO ACCOUNT NOT ONLY HIS FINANCIAL STATUS BUT HIS JUDGMENT, SKILL AND INTEGRITY AS WELL AS HIS FITNESS AND ABILITY GENERALLY TO FULFILL THE CONTRACT REQUIREMENTS. SEE PICONE V. CITY OF NEW YORK, 29 N.Y.S. 2D 539; KELLING ET AL. V. EDWARDS ET AL., 116 MINN. 484, 134 N.W. 221; KOICH V. CVAR, 110 P. 2D 964; 26 COMP. GEN. 676. THIS REQUIREMENT IS NOW STATED SPECIFICALLY IN SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, 23, WHICH IS APPLICABLE HERE, AND IN PARAGRAPH 8 (A) OF THE "TERMS AND CONDITIONS OF THE INVITATION FOR BIDS," AS FOLLOWS:

"THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTS SIDERED.'

ON THE RECORD BEFORE US WE FIND NO EVIDENCE OF BAD FAITH OR A LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION MADE BY THE CONTRACTING OFFICIALS OF THE DEPARTMENT OF THE ARMY. IT NECESSARILY FOLLOWS THAT WE WOULD NOT BE WARRANTED IN DISAGREEING WITH THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.