B-155078, DEC. 1, 1964

B-155078, DEC. 1, 1964

TO PACIFIC COAST UTILITIES SERVICE, INC.:

BY LETTER DATED JULY 20, 1964, WITH ENCLOSURES, RECEIVED HERE ON AUGUST 28, 1964, YOU PROTESTED AGAINST THE REJECTION OF YOUR LOW BID SUBMITTED IN RESPONSE TO SMALL BUSINESS RESTRICTED INVITATION FOR BIDS NO. AVI-04-018- 64-18, ISSUED ON MARCH 13, 1964, BY HEADQUARTERS, UNITED STATES ARMY ARMOR AND DESERT TRAINING CENTER, FORT IRWIN, CALIFORNIA, FOR THE FURNISHING OF CUSTODIAL SERVICES FOR THE PERIOD MAY 1, 1964, THROUGH APRIL 30, 1965.

BIDS WERE OPENED ON APRIL 13, 1964, AND IT APPEARED THAT YOU SUBMITTED THE LOWEST BID AT A MONTHLY RATE OF $1,727.57 AFTER DISCOUNT AND THAT MAINTENANCE ENGINEERS, INC., SUBMITTED THE NEXT LOWEST BID AT A MONTHLY RATE OF $1,841.47 AFTER DISCOUNT. THE THEN-CURRENT CONTRACT (DA 04-013- AVI-345) FOR CUSTODIAL SERVICES AT THIS BASE WAS BEING PERFORMED BY YOU FOR THE PERIOD THROUGH APRIL 30, 1964. HOWEVER, YOUR LOW BID WAS REJECTED BY THE CONTRACTING OFFICER ON THE BASIS OF AN INVESTIGATION WHICH FOUND THAT YOU WERE NONRESPONSIBLE FOR REASONS OTHER THAN CAPACITY OR CREDIT. THIS DETERMINATION RELATED SPECIFICALLY TO YOUR UNSATISFACTORY PERFORMANCE UNDER CONTRACT DA 04 013-AVI-345. AWARD WAS THEREFORE MADE TO MAINTENANCE ENGINEERS ON MAY 25, 1964, FOR THE PERIOD JUNE 1, 1964, THROUGH APRIL 30, 1965.

WITH RESPECT TO THE ACTIONS TAKEN BY THE PROCUREMENT AGENCY, YOU ADVISE (1) THAT PERFORMANCE ON CONTRACT DA 04-013-AVI-345 WAS IN FACT SATISFACTORY; (2) THAT YOU WERE NOT FORMALLY NOTIFIED OF POOR PERFORMANCE; AND (3) THAT SINCE CONTRACT DA 04-013-AVI-345 WAS EXTENDED FOR ONE MONTH APPARENTLY BECAUSE OF A CHALLENGE TO YOUR SMALL BUSINESS STATUS, THE CONTRACTING OFFICER WAS UNFAIR IN RAISING THE ISSUE OF PRIOR POOR PERFORMANCE.

THE PROCUREMENT AGENCY FOUND AFTER A THOROUGH INVESTIGATION THAT THE INFORMATION DEVELOPED REFLECTED DISINTERESTED, INATTENTIVE AND INDIFFERENT ATTITUDES TOWARD THE SUCCESSFUL AND SATISFACTORY PERFORMANCE OF CONTRACT DA 04-013-AVI-345. THE RECORD IS REPLETE WITH COMPLAINTS OF UNSATISFACTORY SERVICES THROUGHOUT THE TERM OF THIS CONTRACT THAT WERE NOT CORRECTED EVEN THOUGH THEY WERE BROUGHT TO THE ATTENTION OF YOUR CONTRACT FOREMAN. THE BUILDING INSPECTION REPORTS COVERING PERFORMANCE OF CONTRACT DA 04-013-AVI-345 CONTAIN NUMEROUS NOTATIONS OF UNSATISFACTORY PERFORMANCE AND SERVICES NOT ACCOMPLISHED. UNDER THIS CONTRACT YOU WERE TO FURNISH "ALL MATERIAL, SUPPLIES, LABOR AND EQUIPMENT" TO PERFORM PERIODIC CLEANING OF DESIGNATED AREAS AT FORT IRWIN. YOU DID IN FACT FURNISH ALL OF THE ELEMENTS NECESSARY FOR SUCCESSFUL CONTRACT PERFORMANCE, BUT THE RECORD BEFORE US REASONABLY ESTABLISHES THAT YOU LACKED PERSEVERANCE AND TENACITY IN PERFORMANCE AND THE WILLINGNESS TO CORRECT DEFICIENCIES BROUGHT TO YOUR ATTENTION.

WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS PRIMARILY THAT OF THE CONTRACTING AGENCY AND NOT OF OUR OFFICE AND IS BINDING ON THE GENERAL ACCOUNTING OFFICE IN THE ABSENCE OF BAD FAITH OR A REASONABLE BASIS FOR THE DETERMINATION MADE. 33 COMP. GEN. 549; 37 ID. 403; 39 ID. 705; 43 ID. 257. THE PROCUREMENT AGENCY FOUND THAT YOU FAILED TO MEET THE MINIMUM STANDARD OF RESPONSIBILITY PRESCRIBED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903.1/III). SINCE THE RECORD BEFORE US SUPPORTS THAT DETERMINATION, WE ARE NOT DISPOSED TO QUESTION THE ACTION TAKEN.

CONCERNING YOUR STATEMENT THAT NO FORMAL NOTIFICATION WAS RECEIVED AS TO YOUR POOR PRIOR CONTRACT PERFORMANCE, IT APPEARS FROM THE RECORD THAT INDIVIDUAL BUILDING INSPECTION SHEETS WERE POSTED CONSPICUOUSLY IN EACH BUILDING SO THAT YOU COULD REVIEW THEM, CORRECT DEFICIENCIES WHEN THEY OCCURRED AND PREVENT THEIR RECURRENCE. THE POSTING OF THESE SHEETS WAS MADE AT THE SUGGESTION OF YOUR CUSTODIAL DIVISION MANAGER. ALSO, NUMEROUS COMPLAINTS WERE LODGED WITH YOUR FOREMAN THROUGHOUT THE TERM OF THE CONTRACT. IT WOULD SEEM THEREFORE YOU WERE CHARGED WITH NOTICE OF THE INADEQUATE ATTENTION GIVEN BY YOU TO THE CONTRACT REQUIREMENTS.

THE EXTENSION OF YOUR PRIOR CONTRACT WAS REQUIRED BECAUSE OF ADMINISTRATIVE DIFFICULTIES IN AWARDING THE NEW CONTRACT. SINCE A CONTINUANCE OF CUSTODIAL SERVICES WAS NECESSARY PENDING A DETERMINATION OF THE LOWEST "RESPONSIBLE" BIDDER, IT WAS BOTH EXPEDIENT AND PROPER TO EXTEND YOUR CONTRACT. BUT THIS DID NOT CONSTITUTE AN ACKNOWLEDGEMENT OF YOUR RESPONSIBILITY OR OF YOUR ENTITLEMENT TO AWARD. IN FACT, YOU WERE AWARE THAT YOUR PRIOR POOR CONTRACT PERFORMANCE WAS A FACTOR IN DETERMINING YOUR RESPONSIBILITY AS PROSPECTIVE CONTRACTOR UNDER THE INVITATION FOR BIDS. THE REGULATION PROMULGATED AT ASPR 1-904.1 PRECLUDES THE AWARD OF A CONTRACT UNLESS THE CONTRACTING OFFICER MAKES AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY. THIS HE COULD NOT DO IN VIEW OF YOUR PRIOR RECORD OF POOR CONTRACT PERFORMANCE.

WE CONSIDERED THE OTHER ISSUES RAISED BY YOU BUT WE FIND THAT THEY ARE NOT PERTINENT TO OUR CONSIDERATION OF YOUR PROTEST.

ALTHOUGH ASPR 1-705.4 REQUIRES THE CONTRACTING OFFICER TO NOTIFY THE SMALL BUSINESS ADMINISTRATION IF IT IS PROPOSED TO REJECT THE BID OF A SMALL BUSINESS CONCERN BECAUSE OF NONRESPONSIBILITY DUE TO A LACK OF "CAPACITY AND CREDIT," THAT REQUIREMENT IS NOT MANDATORY WHERE A BIDDER HAS BEEN FOUND TO BE LACKING IN RESPONSIBILITY DUE TO FACTORS OTHER THAN CAPACITY AND CREDIT. WE HAVE HELD THAT THE TERM "CAPACITY" AS CONTEMPLATED BY THE CERTIFICATE OF COMPETENCY AUTHORITY OF THE SMALL BUSINESS ADMINISTRATION INCLUDES ABILITY TO PERFORM, ORGANIZATION, EXPERIENCE, TECHNICAL KNOWLEDGE, SKILLS,"KNOW-HOW," TECHNICAL EQUIPMENT AND FACILITIES. 38 COMP. GEN. 864. HOWEVER, WE HAVE RECOGNIZED THAT POOR BUSINESS PRACTICES, SUCH AS DEMONSTRATED HERE, ARE MATTERS SOLELY WITHIN THE CONTRACTING OFFICER'S AUTHORITY AND NOT WITHIN THE SCOPE OF THE CERTIFICATE OF COMPETENCY PROCEDURES. 39 COMP. GEN. 868; 43 ID. 257; ID. 387.