B-146667, DEC. 11, 1961

B-146667, DEC. 11, 1961

TO SAMAL CONSTRUCTION CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1961, REGARDING OUR SETTLEMENT OF JUNE 27, 1961, WHICH DISALLOWED YOUR CLAIM FOR $147 REPRESENTING EXPENSES ALLEGED TO HAVE BEEN INCURRED BY YOU IN CONNECTION WITH THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO INVITATION NO. QM- 30-127-60-82, WHICH BID WAS REJECTED BY THE SCHENECTADY GENERAL DEPOT, U.S. ARMY, SCHENECTADY, NEW YORK.

IN RESPONSE TO THE INVITATION, YOU SUBMITTED A BID DATED NOVEMBER 4, 1959, OFFERING TO PERFORM CERTAIN CONSTRUCTION WORK AT THE DEPOT FOR THE LUMP SUM OF $18,680. THE EIGHT OTHER BIDS ON THE PROJECT RANGED FROM $19,360 TO $23,000.

IT IS REPORTED THAT THE SCHENECTADY GENERAL DEPOT CONSIDERED IT TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO REJECT YOUR LOW BID ON THE BASIS OF A FINDING THAT YOU ARE NOT A RESPONSIBLE CONTRACTOR. THIS FINDING WAS BASED UPON A REVIEW OF YOUR CONTRACT PERFORMANCE RECORDS WHICH INDICATED THAT YOU DID NOT HAVE SUFFICIENT CAPACITY TO UNDERTAKE ADDITIONAL WORK BECAUSE OF YOUR DELINQUENCY IN COMPLETING TWO CURRENT CONTRACTS, NAMELY, CONTRACTS NOS. DA 30-127-QM-956 AND DA 30-127-QM 962.

YOU CONTEND THAT YOUR BID WAS IMPROPERLY REJECTED BECAUSE YOU WERE NOT DELINQUENT IN THE PERFORMANCE OF THE REFERRED-TO CONTRACTS AT THE TIME THE CONTRACT IN QUESTION WAS AWARDED TO ANOTHER BIDDER AND THAT YOUR CONTENTION WAS SUSTAINED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN THEIR DECISIONS OF SEPTEMBER 29, 1960, ASBCA NO. 6191 AND ASBCA NO. 6293. THE TWO DECISIONS COVER APPEALS BY YOU AGAINST THE ASSESSMENT OF ACTUAL DAMAGES ALLEGED TO HAVE BEEN SUSTAINED BY THE GOVERNMENT AS A RESULT OF YOUR DELAY IN COMPLETING THESE CONTRACTS. WHILE THE BOARD DID SUSTAIN YOUR APPEALS AGAINST THE ASSESSMENT OF DAMAGES, THE BOARD DID FIND IN ITS DECISIONS ASBCA NO. 6191 THAT YOU WERE DELINQUENT IN THE PERFORMANCE OF CONTRACT NO. DA 30-127-QM-956, PARTICULARLY THAT PART RELATING TO THE INSTALLATION OF THE FAN MOTORS, WHICH WERE TO BE USED WITH THE VENTILATORS.

CONTRACTS PURSUANT TO FORMAL ADVERTISING ARE REQUIRED TO BE AWARDED, UNDER 10 U.S.C. 2305 (C), TO THE "RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES.' RESPONSIBLE CONTRACTOR UNDER ASPR 1-903.1 (IV)IS ONE WHO HAS, AMONG OTHER FACTORS, A SATISFACTORY RECORD OF PERFORMANCE. A HISTORY OF DELINQUENT PERFORMANCES UNDER PRIOR CONTRACTS IS A PROPER BASIS FOR DETERMINING THAT A BIDDER IS NOT RESPONSIBLE. 37 COMP. GEN. 798; ID. 756.

THE FUNCTION OF DETERMINING WHETHER A PARTICULAR PERSON OR FIRM IS A RESPONSIBLE BIDDER, WITHIN THE INTENT AND MEANING OF THE ADVERTISING STATUTES OF THE UNITED STATES, AND THUS ELIGIBLE TO RECEIVE AN AWARD OF GOVERNMENT CONTRACTS, IS ESSENTIALLY AN ADMINISTRATIVE ONE INVOLVING THE DETERMINATION OF SUCH FACTUAL ISSUES AS THE BIDDER'S REPUTATION FOR PAST PERFORMANCE, HIS OVER-ALL EXPERIENCE IN THE PARTICULAR INDUSTRY INVOLVED, HIS PLANT FACILITIES AND EQUIPMENT, INTEGRITY, FINANCIAL RESPONSIBILITY, AND LIKE CONSIDERATIONS, SUCH AS CAN BE DETERMINED ONLY BY, AND TO THE SATISFACTION OF, THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT ACTIVITY DIRECTLY CONCERNED. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; 14 COMP. GEN. 305; 34 ID. 86.

THE MATTER OF YOUR RESPONSIBILITY IN THIS INSTANCE WAS THE SUBJECT OF AN INVESTIGATION BY THE DEPARTMENT AND THE DETERMINATION OF NONRESPONSIBILITY APPEARS TO BE SUPPORTED BY THE RECORD. UNDER THE CIRCUMSTANCES, WE FIND NO BASIS TO OBJECT TO THE AWARD MADE UNDER THE INSTANT INVITATION.

EVEN IF IT WERE ESTABLISHED THAT YOUR BID WAS IMPROPERLY REJECTED, AND THE EVIDENCE SUBMITTED DOES NOT ESTABLISH THAT SUCH IS THE CASE, YOUR CLAIM FOR REIMBURSEMENT OF THE EXPENSES INCURRED BY YOU IN PREPARING SUCH BID MAY NOT BE ALLOWED FOR THE REASON THAT STATUTES WHICH REQUIRE PURCHASES TO BE MADE AFTER ADVERTISING FOR BIDS WERE ENACTED FOR THE BENEFIT OF THE UNITED STATES AND NOT FOR THE BIDDERS, AND THE COURTS HAVE CONSISTENTLY HELD THAT BIDDERS HAVE NO ENFORCEABLE RIGHTS IN THE EVENT THEIR BIDS HAVE NOT BEEN ACCEPTED. SEE PERKINS V. LUKENS STEEL COMPANY, 310 U.S. 113; COLORADO PAVING COMPANY V. MURPHY, 78 F. 28; AND HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 135 CT.CL. 63. COMPARE STATE EX. REL., HRON BROS. INC. V. CITY OF PORT WASHINGTON, 62 N.W. 2D 1; AND ROYAL SUNDRIES CORPORATION V. UNITED STATES, 112 F.SUPP. 244. ..END :