B-155676, MAR. 19, 1965

B-155676: Mar 19, 1965

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THE ADMINISTRATIVE REPORT ON THE ABOVE MATTER STATES THAT YOUR CLIENT'S LOW BID WAS REJECTED BECAUSE. THE CONTRACTING OFFICER DETERMINED THAT REGAN WAS NOT A RESPONSIBLE CONTRACTOR FOR THIS WORK: (1) REGAN SUBMITTED NO EVIDENCE OF ANY COMMITMENT OR ARRANGEMENT FOR PLANT. FABRICATORS AND SUPPLIERS. (3) THE INFORMATION REGAN FURNISHED TO COMPLY WITH PARAGRAPH 12B (2) (A) ON PAGE I-6 OF THE IFB WAS NOT CONSIDERED FULLY RESPONSIVE. (4) REGAN'S PERFORMANCES ON PREVIOUS PROJECTS WAS CONSIDERED MARGINAL. (5) REGAN'S ORGANIZATION. OPERATIONAL AND TECHNICAL SKILLS WERE CONSIDERED MARGINAL. IS NOT IN ITSELF A SUFFICIENT BASIS TO REFUSE TO CONSIDER ITS BID. SINCE WE HAVE CONSISTENTLY HELD THAT INFORMATION REQUIRED BY A PROVISION IN AN INVITATION WHICH IS INTENDED FOR USE IN DETERMINING THE BIDDER'S RESPONSIBILITY RATHER THAN THE RESPONSIVENESS OF HIS BID MAY BE FURNISHED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID.

B-155676, MAR. 19, 1965

TO M. CARL LEVINE, MORGULAS AND FOREMAN:

IN A LETTER OF NOVEMBER 27, 1964, YOUR CLIENT, REGAN CONSTRUCTION COMPANY, INC., PROTESTED THE AWARD OF A CONTRACT BY THE CORPS OF ENGINEERS, PURSUANT TO INVITATION NO. ENG-15-029-65-1, TO TIMMONS, BUTT AND HEAD, INC., FOR THE CONSTRUCTION OF SCIENCE LABORATORY OPTICS AT WRIGHT-PATTERSON AIR FORCE BASE, OHIO. AS WE ADVISED REGAN IN OUR LETTER OF FEBRUARY 4, 1965, THE ADMINISTRATIVE REPORT ON THE ABOVE MATTER STATES THAT YOUR CLIENT'S LOW BID WAS REJECTED BECAUSE, FOR THE FOLLOWING REASONS, THE CONTRACTING OFFICER DETERMINED THAT REGAN WAS NOT A RESPONSIBLE CONTRACTOR FOR THIS WORK:

(1) REGAN SUBMITTED NO EVIDENCE OF ANY COMMITMENT OR ARRANGEMENT FOR PLANT, EQUIPMENT AND PERSONNEL.

(2) REGAN APPARENTLY HAD NO COMMITMENTS FROM SUBCONTRACTORS, FABRICATORS AND SUPPLIERS.

(3) THE INFORMATION REGAN FURNISHED TO COMPLY WITH PARAGRAPH 12B (2) (A) ON PAGE I-6 OF THE IFB WAS NOT CONSIDERED FULLY RESPONSIVE.

(4) REGAN'S PERFORMANCES ON PREVIOUS PROJECTS WAS CONSIDERED MARGINAL.

(5) REGAN'S ORGANIZATION, EXPERIENCE, OPERATIONAL AND TECHNICAL SKILLS WERE CONSIDERED MARGINAL.

THE ABSTRACT OF BIDS INDICATES THAT YOUR CLIENT DOES NOT CLAIM TO BE A SMALL BUSINESS.

BY LETTER OF FEBRUARY 17, 1965, YOU ASSERT THAT REGAN'S FAILURE TO INCLUDE INFORMATION WITH ITS BID RELATIVE TO COMMITMENTS OR ARRANGEMENTS FOR PLANT, EQUIPMENT, PERSONNEL, SUBCONTRACTORS, FABRICATORS AND SUPPLIERS, IS NOT IN ITSELF A SUFFICIENT BASIS TO REFUSE TO CONSIDER ITS BID. WE MUST AGREE WITH YOUR POSITION, SINCE WE HAVE CONSISTENTLY HELD THAT INFORMATION REQUIRED BY A PROVISION IN AN INVITATION WHICH IS INTENDED FOR USE IN DETERMINING THE BIDDER'S RESPONSIBILITY RATHER THAN THE RESPONSIVENESS OF HIS BID MAY BE FURNISHED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID. CF. B-151847, DATED AUGUST 22, 1963, 43 COMP. GEN. 206, AND B-156194, DATED MARCH 6, 1965. HOWEVER, WHERE AS IS THIS INSTANCE THE WORK AND EQUIPMENT INVOLVED ARE REQUIRED TO MEET EXCEPTIONAL STANDARDS OF PRECISION, WE DO NO BELIEVE THAT A CONTRACTING OFFICER IS REQUIRED TO MAKE AN AFFIRMATIVE DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY AND ABILITY TO PERFORM THE REQUIREMENTS OF A CONTRACT SATISFACTORILY MERELY ON THE BASIS OF A LISTING OF SEVERAL POTENTIAL SUBCONTRACTORS OR SUPPLIERS WITHOUT SOME SHOWING OF COORDINATION WITH ONE OR MORE OF THEM ON THE PRECISE REQUIREMENTS OF THE PARTICULAR PROCUREMENT.

YOU ALSO CONTEND THAT INFORMATION IN YOUR CLIENT'S LETTERS OF NOVEMBER 5, AND 13, 1964, TO THE CORPS OF ENGINEERS, WAS FULLY RESPONSIVE TO THE REQUIREMENT IN PARAGRAPH 12B (2) (A), WHICH PARAGRAPH PROVIDED IN RELEVANT PART AS FOLLOWS:

"B. ACCORDINGLY EACH BIDDER IS REQUIRED TO FURNISH, EITHER WITH HIS BID OR WITHIN 3 CALENDAR DAYS AFTER A REQUEST IS MADE FOR SUBMITTAL THEREOF, PRE-AWARD DATA AS FOLLOWS:

"/2) A DETAILED, NARRATIVE DESCRIPTION OF HOW THE BIDDER PROPOSES TO FABRICATE, FURNISH AND INSTALL EACH OF THE FOLLOWING FEATURES OF THE WORK:

A. VACUUM TEST CHAMBER

B. PORTABLE MOUNTING FRAME

C. TRANSFER CAR

D. OPTICAL COATING EQUIPMENT

"EACH DESCRIPTION SHALL INCLUDE A DETAILED STATEMENT OF MEANS PROPOSED TO ACHIEVE COORDINATION AND QUALITY CONTROL OF THE WORK AND SHALL ALSO INCLUDE NAMES OF FABRICATORS, COORDINATORS, INSTALLERS AND SUPPLIERS OF ALL COMPONENTS OF EACH OF THE STATED FEATURES.'

OUR REVIEW OF THE LETTERS OF NOVEMBER 5 AND 13, 1964, RECEIVED AFTER BIDS WERE OPENED ON OCTOBER 29, 1964, INDICATES THAT THE INFORMATION CONTAINED THEREIN IS PRIMARILY IF NOT EXCLUSIVELY DIRECTED TO THE LATTER PART OF THE REQUIREMENT QUOTED ABOVE, AND DOES NOT INCLUDE A "DETAILED NARRATIVE DESCRIPTION OF HOW THE BIDDER PROPOSED TO FABRICATE, FURNISH, AND INSTALL" THE LISTED ITEMS. THE CONTRACTING OFFICER GAVE SIGNIFICANT WEIGHT TO YOUR CLIENT'S REPEATED FAILURES TO SUPPLY THIS INFORMATION, PARTICULARLY IN LIGHT OF THE FACT THAT REGAN'S BID WAS SUBSTANTIALLY LOWER THAN OTHERS FOR THE VACUUM TEST CHAMBER, WHICH IS SAID TO BE ONE OF THE MOST COMPLEX AND EXACTING PORTIONS OF THE SPECIFICATIONS. SEE ARMED SERVICES PROCUREMENT REGULATION 1-903.5, WHICH PROVIDES:

"1-903.5 STANDARDS FOR INDIVIDUAL CONTRACTS. CONTRACTING OFFICERS SHALL, WHEN THE SITUATION WARRANTS, CONSIDER THE ADVISABILITY OF DEVELOPING SPECIFIC STANDARDS OF RESPONSIBILITY TO BE APPLICABLE TO A PARTICULAR PROCUREMENT. SUCH SPECIAL MINIMUM STANDARDS MAY BE PARTICULARLY DESIRABLE WHERE PAST UNSATISFACTORY PERFORMANCE EXPERIENCE HAS DEMONSTRATED THE NEED FOR INSURING THE EXISTENCE OF UNUSUAL EXPERTISE OR SPECIALIZED FACILITIES NECESSARY FOR ADEQUATE CONTRACT PERFORMANCE. THE RESULTING STANDARDS SHALL FORM A PART OF THE SOLICITATION AND SHALL BE APPLICABLE TO ALL BIDDERS OR OFFERORS.'

YOU FURTHER CONTEND THAT THE NEAR COMPLETION OF THE TWO CURRENT PROJECTS WHICH REGAN LISTED IN THE PRE-AWARD EVALUATION DATA SHEET INDICATES SATISFACTORY PAST PERFORMANCE AND SATISFACTORY ORGANIZATION, EXPERIENCE, AND OPERATIONAL AND TECHNICAL SKILLS. HOWEVER, WE ARE ADVISED THAT GOVERNMENT PERSONNEL RESPONSIBLE FOR THE ADMINISTRATION OF ONE OF THE TWO CONTRACTS WHICH YOU LISTED, I.E., THE SPACE SIMULATOR FOR THE MOBILE DISTRICT CORPS OF ENGINEERS, BELIEVE THAT THE CONTRACTOR HAS NOT PURSUED THE WORK DILLIGENTLY AND HAS FINISHED ONLY 88 PERCENT OF THE 98 PERCENT OF THE WORK IT SHOULD HAVE FINISHED AT THIS TIME IN ORDER TO ACHIEVE TIMELY COMPLETION OF THE CONTRACT. MOBILE DISTRICT REPRESENTATIVES ARE OF THE OPINION THAT THE DELAY IS NOT EXCUSABLE, BUT IS DUE IN LARGE MEASURE TO THE CONTRACTOR'S UNSUCCESSFUL ATTEMPTS TO CORRECT DEFECTIVE TOLERANCES IN THE VACUUM CHAMBER.

THE ABSENCE OF INFORMATION RELATIVE TO REGAN'S METHOD OF FABRICATING CERTAIN SELECTED ITEMS OF UNUSUAL COMPLEXITY, WHICH INFORMATION WAS REQUIRED TO BE FURNISHED BY THE QUOTED LANGUAGE FROM PARAGRAPH 12B (2) (A), AND WAS TWICE REQUESTED AFTER BID OPENING, IS CERTAINLY A MATTER WHICH MAY BE CONSIDERED BY THE CONTRACTING OFFICER IN DECIDING WHETHER HE SHOULD MAKE AN AFFIRMATIVE DETERMINATION ON A BIDDER'S RESPONSIBILITY. CF. 42 COMP. GEN. 464, CONCERNING THE IMPROPRIETY OF REJECTING AS NONRESPONSIVE A BID FROM A SMALL BUSINESS BIDDER WHO FAILED TO SUBMIT SIMILAR INFORMATION WITH HIS BID. IN ADDITION, IT APPEARS REGAN'S RECORD OF CURRENT PERFORMANCE UNDER A CONTRACT YOU REGARD AS EVIDENCE OF SATISFACTORY EXPERIENCE IS AT BEST QUESTIONABLE, IF NOT ACTUALLY UNSATISFACTORY.

THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT. WHILE SUCH JUDGMENT SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED, SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY TO DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE OFFICERS CHARGED WITH THE DUTY AND RESPONSIBILITY OF MAKING SUCH DECISIONS, UNLESS THERE IS CLEARLY NO SUBSTANTIAL BASIS FOR THEIR ACTION. THEREFORE, WE HAVE HELD THAT A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY A MATTER FOR DETERMINATION BY THE CONTRACTING OFFICER AND NOT BY THE GENERAL ACCOUNTING OFFICE. 33 COMP. GEN. 549. WITHOUT CONVINCING EVIDENCE OF BAD FAITH OR LACK OF REASONABLE BASIS, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE DETERMINATION THAT YOUR CLIENT IS NOT A RESPONSIBLE FIRM FOR THE PERFORMANCE OF THIS CONTRACT. 38 COMP. GEN. 131. SINCE NO SUCH EVIDENCE APPEARS IN THE RECORD, WE MUST CONCLUDE THAT WE WOULD NOT BE WARRANTED IN QUESTIONING THE AWARD AS MADE.