B-155844, FEB. 17, 1965

B-155844: Feb 17, 1965

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TO FIRST WESTERN REAL ESTATE COMPANY: FURTHER REFERENCE IS MADE TO A LETTER DATED DECEMBER 18. SEVEN BIDS WERE RECEIVED RANGING FROM 2 PERCENT TO 4.9 PERCENT. SUBMITTED THE LOW BID OF 2 PERCENT AND YOUR BID OF 2.48 PERCENT WAS THE NEXT LOW BID RECEIVED. AFTER AN INVESTIGATION OF THE QUALIFICATIONS OF THE DILLON AND WOODS PARTNERSHIP AN AWARD OF CONTRACT WAS MADE BY THE SACRAMENTO OFFICE TO THIS FIRM ON DECEMBER 3. KARLTON AND WHITE STATE THAT WHILE IT WAS INDICATED THAT MR. DILLON OF THE DILLON AND WOODS PARTNERSHIP WAS IN POSSESSION OF A REAL ESTATE BROKER'S LICENSE HE WAS REGULARLY ENGAGED IN THE PRINTING BUSINESS AND THAT THERE IS NO INDICATION THAT HE EVER MANAGED ANY APARTMENTS OF ANY SIZE WHATSOEVER.

B-155844, FEB. 17, 1965

TO FIRST WESTERN REAL ESTATE COMPANY:

FURTHER REFERENCE IS MADE TO A LETTER DATED DECEMBER 18, 1964, WITH ENCLOSURES, FROM THE LAW OFFICES OF ABBOTT, KARLTON AND WHITE, PROTESTING, ON YOUR BEHALF, AWARD OF CONTRACT MADE BY THE FEDERAL HOUSING ADMINISTRATION UNDER INVITATION NO. 65-154.

IN RESPONSE TO THE INVITATION ISSUED OCTOBER 30, 1964, BY THE SACRAMENTO OFFICE, FEDERAL HOUSING ADMINISTRATION, FOR THE MANAGEMENT OF THE FAIR LAKE APARTMENTS, SACRAMENTO, CALIFORNIA, SEVEN BIDS WERE RECEIVED RANGING FROM 2 PERCENT TO 4.9 PERCENT. T. H. DILLON REALTY COMPANY AND W. W. WOODS, SACRAMENTO, CALIFORNIA, A PARTNERSHIP, SUBMITTED THE LOW BID OF 2 PERCENT AND YOUR BID OF 2.48 PERCENT WAS THE NEXT LOW BID RECEIVED. AFTER AN INVESTIGATION OF THE QUALIFICATIONS OF THE DILLON AND WOODS PARTNERSHIP AN AWARD OF CONTRACT WAS MADE BY THE SACRAMENTO OFFICE TO THIS FIRM ON DECEMBER 3, 1964, FOR THE MANAGEMENT OF THE FAIR LAKE APARTMENTS.

IN THE LETTER DATED DECEMBER 18, 1964, ABBOTT, KARLTON AND WHITE STATE THAT WHILE IT WAS INDICATED THAT MR. DILLON OF THE DILLON AND WOODS PARTNERSHIP WAS IN POSSESSION OF A REAL ESTATE BROKER'S LICENSE HE WAS REGULARLY ENGAGED IN THE PRINTING BUSINESS AND THAT THERE IS NO INDICATION THAT HE EVER MANAGED ANY APARTMENTS OF ANY SIZE WHATSOEVER. BASICALLY, THE ATTORNEYS CONTEND THAT MR. DILLON DOES NOT POSSESS THE NECESSARY EXPERIENCE, ORGANIZATION, TECHNICAL QUALIFICATIONS, ETC., WHICH WOULD QUALIFY HIM FOR SATISFACTORY PERFORMANCE OF THE MANAGEMENT SERVICES IN QUESTION.

THE REPORT FROM THE COMMISSIONER, FEDERAL HOUSING ADMINISTRATION, SHOWS THAT BEFORE THE AWARD WAS MADE TO THE PARTNERSHIP OF THE T. H. DILLON REALTY COMPANY AND W. W. WOODS, THE DIRECTOR OF THE FEDERAL HOUSING ADMINISTRATION INSURING OFFICE IN SACRAMENTO WAS REQUESTED TO QUALIFY THE PARTNERSHIP AS TO ITS OVERALL ABILITY TO PERFORM THE MANAGEMENT SERVICES REQUIRED. THE CONTRACT WAS NOT AWARDED UNTIL AFTER A THOROUGH CHECK OF THE PARTNERSHIP'S QUALIFICATIONS WAS MADE. IN THIS REGARD, A DUN AND BRADSTREET REPORT DATED SEPTEMBER 23, 1964, SHOWS THAT FROM 1958 TO 1960 MR. W. W. WOODS WAS EMPLOYED AS A REAL ESTATE SALESMAN FOR LINDSAY AND COMPANY OF SACRAMENTO, THAT IN 1960 HE BECAME GENERAL MANAGER OF THE ROYAL VILLA APARTMENTS OF SACRAMENTO AND APPEARS TO BE CONTINUING SUCH DUTIES AT THIS TIME, AND THAT HE HAS MAINTAINED THE REPUTATION OF CONDUCTING ALL OF HIS AFFAIRS ON A SOUND BASIS. MOREOVER, IN A LETTER DATED SEPTEMBER 18, 1964, MR. WOODS ADVISED THE SACRAMENTO OFFICE OF THE FEDERAL HOUSING ADMINISTRATION THAT HIS DUTIES AS MANAGER OF THE ROYAL VILLA APARTMENTS, WHICH ARE COMPRISED OF 50 ONE-BEDROOM, 186 TWO-BEDROOM, AND 60 THREE- BEDROOM APARTMENTS WITH 6 SWIMMING POOLS AND 1 RECREATION BUILDING, COVER THE HIRING, TRAINING, AND MANAGING OF THE ENTIRE STAFF OF EMPLOYEES AS WELL AS THE HANDLING OF ALL OF THE ADVERTISING AND PUBLIC RELATIONS IN ADDITION TO BEING IN CHARGE OF ARRANGING AND DIRECTING THE RECREATIONAL PROGRAM. IN VIEW OF SUCH QUALIFICATIONS OF MR. WOODS WHICH WERE VERIFIED BY THE SACRAMENTO OFFICE, THE ALLEGED DEFICIENCIES IN THE QUALIFICATIONS OF MR. T. H. DILLON ARE NOT CONTROLLING. WHILE IT MAY BE THAT THE PRIME INTEREST OF MR. DILLON, WHO IS IN POSSESSION OF A REAL ESTATE BROKER'S LICENSE AND WHO IS A CO-OWNER AND MANAGER OF A BUSINESS APARTMENT BUILDING, WAS THE OPERATION OF HIS PRINT SHOP, THE FACT REMAINS THAT THE ELIGIBILITY FOR AWARD OF THE LOW BIDDER--- THE PARTNERSHIP OF THE T. H. DILLON REALTY COMPANY AND W. W. WOODS--- WAS DETERMINED UPON THE BASIS OF THE QUALIFICATIONS OF BOTH MEMBERS OF THE PARTNERSHIP.

IN THE LETTER OF DECEMBER 18, 1964, IT IS RECOGNIZED THAT THE EVALUATION OF EXPERIENCE AS A MATTER OF RESPONSIBILITY IS WITHIN THE SOUND DISCRETION OF THE GOVERNMENT CONTRACTING OFFICER BUT THAT SUCH A DETERMINATION IS REQUIRED TO BE REASONABLY SUPPORTED BY THE RECORD. IN THAT CONNECTION WE HAVE REPEATEDLY HELD 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 WILL NOT BE QUESTIONED BY THE COURTS OR OUR OFFICE, IN THE ABSENCE OF A SHOWING OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762; FRIEND V. LEE, 221 F.2D 96; 20 COMP. GEN. 862; 37 ID. 430, 435. FOR THE REASONS INDICATED ABOVE, WE THINK THERE WAS A REASONABLE BASIS FOR THE ADMINISTRATIVE DETERMINATION AS TO THE LOW BIDDER'S RESPONSIBILITY.

IN RESPECT TO YOUR ATTORNEYS' UNDERSTANDING THAT AN AWARD OF CONTRACT WOULD NOT BE MADE IN THIS CASE FOR 60 TO 90 DAYS BECAUSE THE FEDERAL HOUSING ADMINISTRATION WAS NOT IN POSSESSION OF THE PROPERTY, THE COMMISSIONER ADVISES THAT THE FEDERAL HOUSING ADMINISTRATION PROCEDURE IS TO AWARD THE CONTRACT SUBJECT TO FORMALLY ACQUIRING PROPERTIES THAT ARE PENDING SOME LEGAL ACTION PRIOR TO ACQUISITION OF TITLE. THIS WAS DONE IN THIS CASE.

ACCORDINGLY, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE AWARD OF CONTRACT MADE BY THE FEDERAL HOUSING ADMINISTRATION TO THE PARTNERSHIP OF THE T. H. DILLON REALTY COMPANY AND W. W. WOODS AND, THEREFORE, YOUR PROTEST IS DENIED.