B-154500, SEP. 28, 1964

B-154500, SEP. 28, 1964

TO MR. ALBERT W. THOMPSON:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 16, 1964, RESPONDING TO REASONS ADVANCED BY THE CONTRACTING OFFICER FOR REJECTING THE LOW BID SUBMITTED BY SCONIERS' FUNERAL HOME UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS AIII-09-038-64-159.

AS A MATTER OF SUMMARY, WE WOULD POINT OUT THAT THE CONTRACTING AGENCY DOES NOT PROPOSE TO MAKE AN AWARD TO SCONIERS' FUNERAL HOME BECAUSE:

"A. THE FUNERAL ESTABLISHMENT IS CONSIDERED TO HAVE LESS THAN ADEQUATE REPOSING ROOM AND STORAGE SPACE FOR REMAINS AS REQUIRED BY PARAGRAPH 6A (2), ADDITIONAL TERMS AND CONDITIONS OF THE INVITATION FOR BIDS.

"B. THE LOCATION OF THE FUNERAL ESTABLISHMENT DOES NOT MEET THE TRADITIONAL STANDARDS OF SOLEMNITY AND REVERENCE REQUIRED BY PARAGRAPH 7B, ADDITIONAL TERMS AND CONDITIONS OF THE INVITATION FOR BIDS. LOCATED NEXT DOOR IS AN ESTABLISHMENT THAT HAS ON-PREMISE BEER SALES AND ,JUKE BOX" MUSIC. IN FRONT ARE RAIL TRACKS WITH SEVERAL TRAINS PASSING EACH DAY AND FREQUENT SWITCHING OF RAIL CARS.'

PARAGRAPH "A" AND "B," ABOVE, CITE PARAGRAPHS 6A (2) AND 7B OF THE ADDITIONAL TERMS AND CONDITIONS OF THE INVITATIONS FOR BIDS. THE FORMER PARAGRAPH PROVIDES THAT THE FUNERAL ESTABLISHMENT DURING THE LIFE OF THE CONTRACT SHALL HAVE A CHAPEL, REPOSING ROOM OR ROOMS, STORAGE FOR REMAINS AND OFFICE FACILITIES WHICH ARE CONSIDERED ADEQUATE BY THE CONTRACTING OFFICER. THE LATTER PARAGRAPH PROVIDES THAT, IN THE PERFORMANCE OF THE CONTRACT, THE CONTRACTOR SHALL PROVIDE COMPLETE SERVICE FACILITIES FOR MAINTAINING TRADITIONAL STANDARDS OF SOLEMNITY, REVERENCE, ASSISTANCE TO FAMILY MEMBERS AND ARRANGEMENTS FOR PRESCRIBED CEREMONIAL SERVICES.

WITH RESPECT TO THE CHARGE MADE IN THE QUOTED PARAGRAPH "A," ABOVE, YOU STATE IN YOUR LETTER THAT THE TWO REPOSING ROOMS OFFERED BY SCONIERS' ARE 13 FEET BY 17 FEET AND 7 1/2 FEET BY 20 FEET AND THAT THE STORAGE ROOM IS 16 FEET BY 24 FEET. YOU IMPLY THAT THOSE ROOMS ARE THEREFORE COMPARABLE TO THOSE OFFERED BY OTHER FUNERAL HOMES. HOWEVER, IT IS OUR UNDERSTANDING THAT THE ROOMS ARE CONSIDERED INADEQUATE NOT BECAUSE OF THEIR SIZE, BUT BECAUSE OF THE FLOOR ARRANGEMENTS AND LAYOUT.

WITH RESPECT TO THE CHARGE MADE IN THE QUOTED PARAGRAPH "B," ABOVE, YOU ACKNOWLEDGE THAT THE FUNERAL HOME IS LOCATED AS REPRESENTED BUT YOU STATE THAT THE CAFE HAS OPERATED IN CLOSE PROXIMITY TO OTHER BUSINESSES, AS WELL AS THREE CHURCHES, WITHOUT ANY COMPLAINT THAT IT CREATES ANY KIND OF NUISANCE WHATSOEVER. YOU ACKNOWLEDGE TOO THAT RAILROAD TRACKS ARE ACROSS FROM THE FRONT OF THE FUNERAL HOME, BUT YOU STATE THAT IT IS ALMOST IMPOSSIBLE TO FIND ANY PLACE IN TOWN WHICH DOES NOT HAVE SOME KIND OF VEHICULAR TRAFFIC PASSING.

WHETHER SCONIERS' FUNERAL HOME MEETS THE STANDARDS SET BY THE INVITATION FOR BIDS IS LARGELY A MATTER OF PERSONAL JUDGMENT UPON WHICH REASONABLE MEN COULD POSSIBLY DISAGREE. HOWEVER, THE RESPONSIBILITY FOR EXERCISING THE NECESSARY JUDGMENT WHICH HAS TO BE MADE IS LODGED WITH THE CONTRACTING OFFICER FOR, AS OUR OFFICE HAS LONG RECOGNIZED, THE DRAFTING OF PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION WHETHER THE OFFERS MADE BY THE BIDDERS MEET THOSE SPECIFICATIONS ARE THE PRIME RESPONSIBILITY OF THE CONTRACTING OFFICER. 17 COMP. GEN. 554. WHILE IT MAY BE THAT NEITHER THE CAFE NOR THE RAILROAD HAS BEEN AN UNUSUAL DISTURBANCE, AND THEY HAVE COME TO BE ACCEPTED BY THE COMMUNITY, THEIR PRESENCE IN CLOSE PROXIMITY TO THE FUNERAL HOME COULD REASONABLY BE CONSIDERED TO DETRACT FROM THE SOLEMNITY AND REVERENCE USUALLY ATTENDING MILITARY FUNERALS SO THAT THE DETERMINATION OF THE CONTRACTING OFFICER DOES NOT APPEAR TO BE WITHOUT REASONABLE FOUNDATION. IN THE CIRCUMSTANCES, SINCE THE DETERMINATION IS LARGELY AN ADMINISTRATIVE MATTER AND IT DOES NOT APPEAR TO BE WITHOUT SUBSTANTIAL SUPPORT, OUR OFFICE WILL NOT INTERFERE WITH THE JUDGMENT MADE.

OUR OFFICE HAS RECEIVED A LETTER OF SEPTEMBER 16, 1964, FROM SCONIERS' FUNERAL HOME FORWARDING A LEGAL NOTICE CLIPPED FROM A NEWSPAPER ADVERTISING THE SALE OF CERTAIN PROPERTY OWNED BY BLANCHE LINDSEY BALDWIN BECAUSE OF A DEFAULT IN MONTHLY PAYMENTS ON THE PROPERTY. IF WE UNDERSTAND THE IMPORT OF THE LETTER, BLANCHE BALDWIN IS THE COOWNER OF THE OTHER FUNERAL HOME WHICH BID FOR THE IMMEDIATE PROCUREMENT. PECUNIARY ABILITY IS ONE ELEMENT OF A BIDDER'S RESPONSIBILITY. 26 COMP. GEN. 676. THEREFORE, COPIES OF THE SEPTEMBER 16 LETTER AND THE NEWSPAPER CLIPPING WHICH ACCOMPANIED IT ARE BEING FORWARDED TO THE DEPARTMENT OF THE ARMY FOR THE CONTRACTING OFFICER'S CONSIDERATION BEFORE PLACING AN AWARD.