B-146308, SEP. 1, 1961

B-146308, SEP. 1, 1961

TO MR. B. RUSH COWHERD, III:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 30, 1961, WITH ENCLOSURES, PROTESTING, IN BEHALF OF MR. SAM C. TAYLOR, GRACEVILLE, FLORIDA, THE ACTION TAKEN BY THE BROOKLEY AIR FORCE BASE UNDER INVITATION FOR BIDS NO. 20-S-61-48.

BY THE INVITATION ISSUED JUNE 2, 1961, CONSOLIDATED SURPLUS SALES OFFICE, BROOKLEY AIR FORCE BASE, ALABAMA, SOLICITED BIDS--- OPENING DATE JUNE 23, 1961--- FOR THE PURCHASE, SUBJECT TO ALL THE TERMS AND CONDITIONS SET FORTH IN THE INVITATION, FROM THE GOVERNMENT CERTAIN GARBAGE, BONES AND MEAT TRIMMINGS, AND COOKED GREASE GENERATED AT TYNDALL AIR FORCE BASE, FLORIDA, FOR A FIVE-YEAR PERIOD BEGINNING JULY 1, 1961.

PARAGRAPH E OF THE SPECIAL CONDITIONS OF SALE, PAGE 9 OF THE BID INVITATION, PROVIDED A SPACE FOR A BIDDER TO INDICATE WHETHER OR NOT HE INTENDED TO USE THE GARBAGE FOR FEEDING LIVESTOCK OR POULTRY. PARAGRAPH F OF THAT DOCUMENT PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"ANIMAL DISEASE ERADICATION. IF GARBAGE PURCHASED UNDER THIS CONTRACT IS TO BE FED TO LIVESTOCK OR POULTRY, PRIOR TO AWARD THE BIDDER AGREES TO FURNISH A CERTIFICATION FROM AN ANIMAL DISEASE ERADICATION DIVISION REPRESENTATIVE OF THE U.S. DEPARTMENT OF AGRICULTURE, THAT HE POSSESSES ADEQUATE AND APPROVED GARBAGE STERILIZATION EQUIPMENT. * * *"

IN RESPONSE TO THE INVITATION TWO BIDS WERE RECEIVED ON ITEM NO. 1 (GARBAGE), ONE FROM SAM C. TAYLOR, PROTESTANT, AND ONE FROM G. E. WEBB, BOTH BIDS BEING IN THE SAME AMOUNT. WHILE BOTH BIDDERS INDICATED IN THEIR RESPECTIVE BIDS THAT THEY INTENDED TO USE THE GARBAGE FOR FEEDING OF LIVESTOCK AND POULTRY, THE PROTESTANT IN A LETTER DATED JUNE 14, 1961, ACCOMPANYING HIS BID, STATED THAT HE DID NOT HAVE THE NECESSARY STERILIZATION EQUIPMENT AND THAT HE COULD NOT AFFORD TO PURCHASE THIS EQUIPMENT UNTIL HE WAS ASSURED OF BEING AWARDED THE CONTRACT. REQUESTED THAT HE BE GIVEN 21 DAYS AFTER NOTIFICATION OF AWARD OF THE CONTRACT TO PROVIDE FOR THIS EQUIPMENT.

IN EVALUATING THE BIDS, THE CONTRACTING OFFICER DETERMINED THAT THE BID SUBMITTED BY THE PROTESTANT SHOULD BE REJECTED BECAUSE OF HIS INABILITY--- AS STATED IN HIS LETTER ACCOMPANYING HIS BID--- TO FURNISH, BEFORE AWARD, THE CERTIFICATION REQUIRED BY PARAGRAPH F OF THE SPECIAL CONDITIONS OF SALE CONTAINED IN THE BID INVITATION. ON JUNE 26, 1961, AWARD OF ITEM NO. 1 WAS MADE TO G. E. WEBB ON CONTRACT NO. AF 01/601/S-5582. BY LETTER DATED JUNE 28, 1961, THE CONTRACTING OFFICER ADVISED MR. TAYLOR THAT, FOR THE REASONS STATED IN THE LETTER, HIS BID WAS NOT ACCEPTABLE, AND THE BIDDER'S CHECK FOR BID DEPOSIT IN THE AMOUNT OF $232.50 WAS RETURNED TO HIM.

THE PROTESTANT CONTENDS THAT HIS BID AND THE ACCOMPANYING LETTER MET THE REQUIREMENTS OF THE BID INVITATION AND THAT HE SHOULD HAVE BEEN AWARDED THE CONTRACT.

THE REQUIREMENT FOR THE CERTIFICATE CALLED FOR BY PARAGRAPH F OF THE SPECIAL CONDITIONS OF SALE, ABOVE QUOTED, DID NOT GO TO THE RESPONSIVENESS OF THE BID SINCE IT WAS NOT REQUIRED THAT THE CERTIFICATE BE SUBMITTED WITH THE BID. HOWEVER, THE PURPOSE OF THE REQUIREMENT WAS TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THE RESPONSIBILITY OF THE BIDDER, THAT IS, HIS ABILITY TO CONFORM TO THE REQUIREMENTS OF THE CONTRACT. THEREFORE, WITH RESPECT TO RESPONSIBILITY, THE CRITICAL TIME IS THE SCHEDULED TIME FOR PERFORMANCE PLUS ANY LEAD TIME WHICH MAY BE NECESSARY IN THE PARTICULAR CASE. 39 COMP. GEN. 655.

IN THIS PARTICULAR CASE, PERFORMANCE OF THE WORK WAS TO COMMENCE ON JULY 1, 1961, AND A DETERMINATION OF THE BIDDER'S RESPONSIBILITY HAD TO BE MADE BEFORE AWARD. PROTESTANT'S LETTER OF JUNE 14, 1961, ACCOMPANYING HIS BID, CLEARLY INDICATED THAT HE WOULD NOT AND COULD NOT HAVE FURNISHED THE REQUIRED CERTIFICATE PRIOR TO AWARD. FURTHER, THE DEPARTMENT OF THE AIR FORCE HAS DETERMINED THAT THE PROTESTANT WOULD NOT HAVE BEEN ABLE TO OBTAIN THE REQUIRED EQUIPMENT, INSTALL IT AND OBTAIN THE NECESSARY CERTIFICATION WITHIN 21 DAYS AFTER NOTIFICATION OF AWARD. ALSO, THE DEPARTMENT OF AGRICULTURE HAS INFORMED THE DEPARTMENT OF THE AIR FORCE THAT IT IS LIKELY THAT SIX MONTHS WOULD BE REQUIRED FOR A PERSON TO OBTAIN STERILIZATION EQUIPMENT AND HAVE IT CERTIFIED. SPECIFICALLY, IT WAS STATED THAT IT TAKES 30 DAYS TO BUILD THE REQUIRED BOILER, THAT THERE IS A 30-DAY QUARANTINE PERIOD BEFORE INSPECTION WOULD BE MADE, AND THAT THERE ARE ALWAYS NUMEROUS OTHER DELAYS IN ACQUISITION AND INSPECTION OF SUCH EQUIPMENT.

IT IS A GENERAL RULE THAT THE QUESTION AS TO THE RESPONSIBILITY AND CAPABILITY OF A BIDDER ON A PROPOSED GOVERNMENT CONTRACT IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY AND SUCH DETERMINATION WHEN MADE WILL NOT BE QUESTIONED BY THE COURTS OR OUR OFFICE, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. 37 COMP. GEN. 430, 435.

ACCORDINGLY, SINCE IT HAS BEEN DETERMINED ON THE BASIS OF COMPETENT EVIDENCE, INCLUDING MR. TAYLOR'S OWN STATEMENT ACCOMPANYING HIS BID, THAT HE DID NOT MEET A PRESCRIBED STANDARD OF RESPONSIBILITY RELATING TO PERFORMANCE OF THE CONTRACT, NO LEGAL BASIS EXISTS FOR DISTURBING THE ADMINISTRATIVE ACTION TAKEN UNDER INVITATION NO. 20-S-61-48.

HOWEVER, IT MAY BE OF INTEREST THAT THE DEPARTMENT OF THE AIR FORCE HAS REPORTED, IN PERTINENT PART, AS FOLLOWS:

"* * * IT IS UNDERSTANDABLE THAT NOT MANY FARMERS, WHO ARE PROSPECTIVE BIDDERS ON THESE SALES, ARE IN A POSITION TO LAY OUT LARGE SUMS OF MONEY FOR THE NECESSARY GARBAGE STERILIZATION EQUIPMENT UNTIL THEY HAVE BEEN ASSURED THEY WILL GET THE AWARD. WE INTEND TO LOOK INTO THIS PROBLEM, AND IF IT IS EXTENSIVE ENOUGH, WILL CONSIDER THE POSSIBILITY OF PROPOSING A REVISION TO THE REGULATION WHICH WOULD PERMIT A BIDDER TO BUY THE NECESSARY EQUIPMENT AND OBTAIN THE REQUIRED CERTIFICATION WITHIN A REASONABLE TIME AFTER AWARD; IN THE MEANTIME, HE WOULD BE REQUIRED TO DISPOSE OF THE FOOD WASTE IN A SATISFACTORY MANNER OTHER THAN FEEDING IT TO ANIMALS OR POULTRY.'