B-155952, MAR. 22, 1965

B-155952: Mar 22, 1965

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INC.: FURTHER REFERENCE IS MADE TO A LETTER DATED JANUARY 14. IT APPEARS THAT THE BIDS IN QUESTION WERE SUBMITTED IN RESPONSE TO FIVE SEPARATE INVITATIONS FOR BIDS ISSUED BY THE NEW YORK REGIONAL OFFICE. THAT YOU WERE NOT A RESPONSIBLE BIDDER UNDER THE STANDARD OF EVALUATION PRESCRIBED BY THE FEDERAL PROCUREMENT REGULATIONS AND. NOTIFIED YOU THAT YOUR BIDS ON EACH OF THE FOREGOING FIVE PROJECTS WERE BEING REJECTED. THAT FOR A NUMBER OF YEARS YOU HAVE PERFORMED WORK FOR THE GENERAL SERVICES ADMINISTRATION ALL OF WHICH HAS BEEN COMPLETED AND ACCEPTED BY THAT ADMINISTRATION AND THAT. YOU HAVE RENDERED SATISFACTORY SERVICE ON ALL OTHER PROJECTS. GUERVITZ STATES THAT THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN REFUSING TO ACCEPT YOUR LOW BIDS ON THE ABOVE PROJECTS IS ARBITRARY AND CAPRICIOUS.

B-155952, MAR. 22, 1965

TO CROSBY CONTRACTING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO A LETTER DATED JANUARY 14, 1965, WITH ENCLOSURES, FROM MR. MAURICE A. GUERVITZ, ATTORNEY AT LAW, PROTESTING IN YOUR BEHALF THE REJECTION OF YOUR LOW BIDS IN CONNECTION WITH CERTAIN SPECIFIED GENERAL SERVICES ADMINISTRATION PROJECTS.

IT APPEARS THAT THE BIDS IN QUESTION WERE SUBMITTED IN RESPONSE TO FIVE SEPARATE INVITATIONS FOR BIDS ISSUED BY THE NEW YORK REGIONAL OFFICE, PUBLIC BUILDINGS, SERVICE, DURING THE PERIOD FROM SEPTEMBER 4, 1964, TO NOVEMBER 3, 1964, FOR CERTAIN TYPES OF RENOVATION AND CONSTRUCTION WORK IN CONNECTION WITH THE FOLLOWING PROJECTS:

TABLE

ALLENTOWN, PENNSYLVANIA REPLACE MAILING PLATFORM,

POST OFFICE ROOF AND MARQUEE

EASTON, PENNSYLVANIA INTERIOR AND EXTERIOR

POST OFFICE PAINTING

GALETON, PENNSYLVANIA NEW PROTOTYPE

POST OFFICE AND FOB

PHILADELPHIA, PENNSYLVANIA, ROOF REPAIRS

MINT

LITTLE FALLS, NEW JERSEY, LOCK BOX REARRANGEMENT,

POST OFFICE LOBBY LIGHTING, ETC.

UNDER DATE OF JANUARY 6, 1965, THE GOVERNMENT CONTRACTING OFFICER MADE A DETERMINATION, BASED ON A FINDING OF FACT WHICH HE PREPARED, THAT YOU WERE NOT A RESPONSIBLE BIDDER UNDER THE STANDARD OF EVALUATION PRESCRIBED BY THE FEDERAL PROCUREMENT REGULATIONS AND, ACCORDINGLY, NOTIFIED YOU THAT YOUR BIDS ON EACH OF THE FOREGOING FIVE PROJECTS WERE BEING REJECTED.

MR. GUERVITZ ADVISES IN HIS LETTER DATED JANUARY 14, 1965, THAT FOR A NUMBER OF YEARS YOU HAVE PERFORMED WORK FOR THE GENERAL SERVICES ADMINISTRATION ALL OF WHICH HAS BEEN COMPLETED AND ACCEPTED BY THAT ADMINISTRATION AND THAT, WITH THE EXCEPTION OF THE PRESENT ALLEGATIONS OF THE ADMINISTRATION WITH RESPECT TO THE UNSATISFACTORY SERVICE ON CERTAIN PROJECTS, YOU HAVE RENDERED SATISFACTORY SERVICE ON ALL OTHER PROJECTS. IN VIEW OF THIS MR. GUERVITZ STATES THAT THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN REFUSING TO ACCEPT YOUR LOW BIDS ON THE ABOVE PROJECTS IS ARBITRARY AND CAPRICIOUS.

THE RECORD BEFORE US SHOWS THAT PRIOR TO THE CONTRACTING OFFICER'S DETERMINATION THAT YOU WERE NOT A RESPONSIBLE BIDDER YOUR PERFORMANCE RECORDS ON CERTAIN PREVIOUS PROJECTS WERE CHECKED. ON PROJECT GS-02B 9592, COVERING BASEMENT FLOOR REPAIRS, ROOF REPAIRS, AND PLUMBING REPLACEMENT, U.S. POST OFFICE AND COURTHOUSE, PITTSBURGH, PENNSYLVANIA, IT WAS FOUND AS THE RESULT OF INSPECTION BY THE GENERAL SERVICES ADMINISTRATION AND FROM EXAMINATIONS AND TESTING BY AN INDEPENDENT TESTING LABORATORY THAT THERE WERE MAJOR OMISSIONS FROM THE WORK SPECIFIED, UNAUTHORIZED SUBSTITUTIONS OF MATERIALS, AND POOR WORKMANSHIP. IN THIS INSTANCE IT IS REPORTED THAT NOTWITHSTANDING THIS YOU WERE PAID ALL BUT $100 OF THE FULL CONTRACT PRICE BUT IT APPEARS THAT THE PAYMENT WAS MADE TO YOU ONLY BECAUSE THE DEFICIENCIES WERE NOT DISCOVERED UNTIL ROOF LEAKS LED TO A FULL INVESTIGATION.

AS THE RESULT OF THE DEFICIENCIES DISCOVERED ON THE FOREGOING PITTSBURGH PROJECT, AN INVESTIGATION OF PROJECT GS-02B-11846, COVERING THE REPLACEMENT OF WORKROOM FLOORING AND ROOF, U.S. POST OFFICE, SUNBURY, PENNSYLVANIA, WAS INITIATED. THE RESULT OF THIS INVESTIGATION ALSO SHOWED SERIOUS DEPARTURES FROM SPECIFICATION REQUIREMENTS. SUCH DEPARTURES INVOLVED SUBSTITUTION OF ROOFING FELT IN PLACE OF VAPOR SEAL PAPER, FAILURE TO BED INSULATION BLOCKS IN HOT COAL TAR PITCH, OMISSION OF WATER CUT-OFFS, FAILURE TO PROVIDE FOR BREATHER VENTS FOR INSULATION, INSTALLATION OF FEWER LAYERS OF ROOFING FELT THAN REQUIRED, ETC. MOREOVER, SINCE THE ENTIRE JOB FOR THIS PROJECT WILL HAVE TO BE REPLACED, GENERAL SERVICES ADMINISTRATION HAS MADE NO PAYMENTS TO YOU.

ARRANGEMENTS ALSO WERE MADE BY THE ADMINISTRATION FOR AN INDEPENDENT TESTING LABORATORY TO INSPECT THE WORK PERFORMED BY YOU ON PROJECT GS-02B- 11330, COVERING THE EXTENSION AND MODERNIZATION OF THE U.S. POST OFFICE, MILLBURN, NEW JERSEY. HERE AGAIN IT WAS FOUND THAT YOU HAD COMPLETELY OMITTED INSTALLATION OF ROOFING FELT AND HAD USED INSULATION WHICH DID NOT MEET CONTRACT SPECIFICATIONS. IT IS REPORTED THAT BECAUSE OF THESE DEFICIENCIES A SUBSTANTIAL BALANCE OF THE CONTRACT PRICE ALSO REMAINS UNPAID.

OBVIOUSLY ADMINISTRATIVE OFFICES, IN CONSIDERING THE RESPONSIBILITY OF A BIDDER, MUST EVALUATE SUCH BIDDER'S JUDGMENT, SKILL, ABILITY, CAPACITY, INTEGRITY, ETC. "THEY SHOULD CALL TO THEIR ASSISTANCE THE MEANS OF INFORMATION AT HAND TO FORM AN INTELLIGENT JUDGMENT. THEY SHOULD INVESTIGATE THE BIDDERS TO LEARN THEIR FINANCIAL STANDING, REPUTATION, EXPERIENCE, RESOURCES, FACILITIES, JUDGMENT AND EFFICIENCY.' HIBBS V. ARENSBERG, 276 PA. 24, 119 AT. 727. THE REPORT FURNISHED BY THE GENERAL SERVICES ADMINISTRATION IN THIS CASE SHOWS CLEARLY THAT THE DETERMINATION AS TO YOUR UNSATISFACTORY CONTRACT PERFORMANCE ON THE THREE PROJECTS WAS REACHED ONLY AFTER CAREFUL AND DETAILED INVESTIGATIONS THAT INCLUDED EXAMINATIONS AND TESTS BY AN INDEPENDENT TESTING LABORATORY. WE HAVE HELD THAT THE DETERMINATION OF THE QUALIFICATIONS OF BIDDERS IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED AND, THAT IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF A REASONABLE FACTUAL BASIS FOR THE DETERMINATION, WE WILL INTERPOSE NO OBJECTION THERETO. SINCE THE GENERAL SERVICES ADMINISTRATION HAS DETERMINED, AFTER CAREFUL AND FULL CONSIDERATION OF YOUR PERFORMANCE OF RECENT CONTRACTS, THAT YOU ARE NOT A RESPONSIBLE BIDDER AND SINCE THERE IS NO INDICATION OF BAD FAITH OR LACK OF FACTS TO SUPPORT SUCH DETERMINATION, WE SEE NO BASIS FOR DISTURBING THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.