B-141417, JAN. 27, 1960

B-141417: Jan 27, 1960

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TO BAIZE INTERNATIONAL INC.: REFERENCE IS MADE TO YOUR RADIOGRAM OF DECEMBER 6. IT IS YOUR CONTENTION. THEREFORE YOU WERE ENTITLED TO AN AWARD OF THE CONTRACT SINCE YOUR BID WAS THE LOWEST OFFER RECEIVED. BIDDERS SHOULD HAVE ACCOMPLISHED CERTAIN CONSTRUCTION CONTRACTS OF A STATED SIZE AND KIND WITHIN THE PAST NUMBER OF YEARS STIPULATED THEREIN. SHALL BE CONSIDERED NOT IN RESPONSE TO THE BIDDING DOCUMENTS AND WILL NOT BE CONSIDERED. THE OFFICER IN CHARGE WILL DETERMINE THAT SUCH QUALIFICATIONS ARE MET PRIOR TO AWARD.'. BASED UPON THE INFORMATION FURNISHED IT WAS CONCLUDED BY THE ADMINISTRATIVE OFFICE THAT YOUR FIRM HAD NOT COMPLETED IN THE TIME AND AMOUNT STIPULATED CONTRACTS LARGELY FOR CONCRETE PAVEMENTS.

B-141417, JAN. 27, 1960

TO BAIZE INTERNATIONAL INC.:

REFERENCE IS MADE TO YOUR RADIOGRAM OF DECEMBER 6, 1959, AND TO SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. 19694/59, ISSUED BY THE OFFICE OF THE OFFICER IN CHARGE OF CONSTRUCTION, BUREAU OF YARDS AND DOCKS, FAR EAST, DEPARTMENT OF THE NAVY. IT IS YOUR CONTENTION, IN SUBSTANCE, THAT THE PROCUREMENT OFFICIALS ERRED IN THEIR EVALUATION OF YOUR QUALIFICATIONS AS A RESPONSIVE BIDDER UNDER THE CONDITIONS AND REQUIREMENTS SET FORTH IN THE INVITATION, AND THEREFORE YOU WERE ENTITLED TO AN AWARD OF THE CONTRACT SINCE YOUR BID WAS THE LOWEST OFFER RECEIVED.

UNDER THE FOREGOING INVITATION THE AGENCY SOUGHT BIDS TO CONSTRUCT A RUNWAY OVERLAY, AND RELATED WORK, AT THE NAVAL AIR STATION AT ATSUGI, JAPAN. THE SAID INVITATION (PARAGRAPH 1.7, ET SEQ.) PROVIDED THAT IN ADDITION TO THE NORMAL REQUIREMENTS, BIDDERS SHOULD HAVE ACCOMPLISHED CERTAIN CONSTRUCTION CONTRACTS OF A STATED SIZE AND KIND WITHIN THE PAST NUMBER OF YEARS STIPULATED THEREIN. IT FURTHER PROVIDED THAT "ANY BID RECEIVED WHEREIN THE BIDDER CANNOT FURNISH EVIDENCE OF THE MINIMUM QUALIFICATIONS SET FORTH HEREIN, SHALL BE CONSIDERED NOT IN RESPONSE TO THE BIDDING DOCUMENTS AND WILL NOT BE CONSIDERED. EVIDENCE OF MINIMUM QUALIFICATIONS SHALL NOT BE SUBMITTED WITH BIDS. THE OFFICER IN CHARGE WILL DETERMINE THAT SUCH QUALIFICATIONS ARE MET PRIOR TO AWARD.'

AFTER OPENING OF THE BIDS THE PROCUREMENT OFFICE REQUESTED CERTAIN INFORMATION FROM YOU, AND FROM OTHER GOVERNMENT AGENCIES, FOR USE IN ASCERTAINING YOUR QUALIFICATIONS UNDER THE REFERRED-TO PROVISIONS OF THE INVITATION. BASED UPON THE INFORMATION FURNISHED IT WAS CONCLUDED BY THE ADMINISTRATIVE OFFICE THAT YOUR FIRM HAD NOT COMPLETED IN THE TIME AND AMOUNT STIPULATED CONTRACTS LARGELY FOR CONCRETE PAVEMENTS, AND THAT WORK UNDER CERTAIN PRIOR AND CURRENT CONTRACTS HAD BEEN DELAYED DUE, IN PART, TO YOUR LACK OF ADEQUATE SUPERVISORY PERSONNEL AND EQUIPMENT. IN VIEW THEREOF ALL BIDS WERE CANCELLED AND NEGOTIATIONS WERE UNDERTAKEN WITH THE SECOND LOW BIDDER. UPON RECEIPT OF AN OFFER TO REDUCE ITS ORIGINAL QUOTATION BY $153,000, A CONTRACT WAS AWARDED TO KAJIMA CONSTRUCTION COMPANY PURSUANT TO THE AUTHORITY VESTED IN THE ADMINISTRATIVE OFFICE UNDER 10 U.S.C. 2304 (A) (6), WHICH CREATES AN EXEMPTION FROM THE STATUTORY REQUIREMENT FOR FORMAL AND COMPETITIVE ADVERTISING, IF "THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES TO BE PROCURED OR USED OUTSIDE THE UNITED STATES * * *.'

EVEN IF THE NEGOTIATING AUTHORITY REFERRED TO WERE NOT APPLICABLE TO THE PROCUREMENT IN QUESTION, WE DO NOT FEEL THAT THE REJECTION OF YOUR BID WAS IMPROPER. THE RECORD SHOWS THAT THE PROJECT WORK IS FOR A CRITICAL FLEET OPERATING FACILITY WHICH HAS A SINGLE RUNWAY FOR OPERATIONAL AIRCRAFT, AND THAT ANY SHUT-DOWN BEYOND 120 DAYS WOULD INVOLVE MILITARY FLEET AIRCRAFT REDEPLOYMENTS WHICH COULD NOT BE TOLERATED. UNDER THESE CIRCUMSTANCES, AND HAVING REGARD FOR THE REPORTS CONCERNING YOUR PERFORMANCE RECORD ON RECENT AND CURRENT CONTRACTS WHICH YOU HAVE UNDERTAKEN, THE PROCUREMENT OFFICIALS CONCLUDED THAT YOUR ORGANIZATION AND FACILITIES WERE NOT ADEQUATE TO MEET THE CONTRACT REQUIREMENTS AT THIS TIME.

QUESTIONS PERTAINING TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR ARE FOR DETERMINATION PRIMARILY BY THE PROCURING AGENCY, AND IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH, OR THE LACK OF ANY REASONABLE BASIS FOR A PARTICULAR FINDING, THERE WOULD BE NO JUSTIFICATION FOR OBJECTION BY OUR OFFICE TO SUCH DETERMINATION. IN THIS CASE WE FEEL THAT THE ADMINISTRATIVE FINDINGS CONSTITUTED A BONA FIDE DETERMINATION, PARTICULARLY IN VIEW OF THE DEMONSTRATED EXIGENCIES ATTENDING THIS PROCUREMENT. SUCH CONCLUSION, OF COURSE, IS NOT FOR APPLICATION TO ANY SIMILAR ADVERTISED INVITATIONS WHICH MAY HEREAFTER BE ISSUED BY THE FAR EAST COMMAND.

IN VIEW OF THE FOREGOING, WE MUST CONCLUDE THAT THERE IS NO BASIS UPON WHICH THIS OFFICE MAY PROPERLY OBJECT TO THE ACTION TAKEN BY THE DEPARTMENT OF THE NAVY.