B-155990, JUN. 8, 1965

B-155990, JUN. 8, 1965

TO THE HONORABLE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED APRIL 23, 1965, FILE REFERENCE AFSPPCA, FROM THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DEPUTY CHIEF OF STAFF, SYSTEMS AND LOGISTICS, SUBMITTED IN RESPONSE TO A LETTER OF OUR OFFICE DATED FEBRUARY 1, 1965, REQUESTING A REPORT ON THE PROTEST OF CONSOLIDATED MAINTENANCE SERVICES, INC., AGAINST THE MAKING OF ANY AWARD OTHER THAN TO THAT CORPORATION UNDER INVITATION NO. 04-611-65-157.

THE EDWARDS AIR FORCE BASE, CALIFORNIA, BY THE REFERRED-TO INVITATION REQUESTED BIDS--- TO BE OPENED JANUARY 7, 1965--- FOR THE FURNISHING OF ALL SERVICES, SUPPLIES AND EQUIPMENT NECESSARY TO PROVIDE GUARD SERVICES FOR GENERAL DYNAMICS/FORT WORTH, FLIGHT TEST FACILITY, LOCATED AT EDWARDS AIR FORCE BASE, CALIFORNIA, DURING THE PERIOD FROM JANUARY 18, 1965 TO JUNE 30, 1965. THE INVITATION UNDER PARAGRAPH 5A OF THE SCHEDULE REQUIRES THAT PROSPECTIVE BIDDERS HAVE "FIVE (5) YEARS EXPERIENCE * * * IN PROVIDING GUARDS ON A CONTRACTUAL BASIS, TO INDUSTRIAL FACILITIES FOR THE PROTECTION OF CLASSIFIED DEFENSE INFORMATION.' THE LOWEST BID IN THE AMOUNT OF $27,552 WAS SUBMITTED BY CONSOLIDATED MAINTENANCE SERVICES, INC., CONSOLIDATED SECURITY SERVICES, DIVISION, SHERMAN OAKS, CALIFORNIA. THE NEXT LOWEST BID IN THE AMOUNT OF $28,509 WAS SUBMITTED BY THE AETNA MAINTENANCE COMPANY D.B.A. AS THE AETNA PLANT PROTECTION COMPANY, LOS ANGELES, CALIFORNIA.

IT IS REPORTED THAT AFTER BIDS WERE EVALUATED IT WAS DETERMINED THAT THE BID OF CONSOLIDATED SHOULD BE REJECTED BECAUSE OF THAT FIRM'S FAILURE TO MEET THE EXPERIENCE REQUIREMENTS OF SPECIAL PROVISION 5A WHICH REQUIRES PROSPECTIVE BIDDERS TO HAVE FIVE YEARS' EXPERIENCE IN PROVIDING GUARD SERVICES; THAT ON JANUARY 13, 1965, MR. HELPHAND OF THE SMALL BUSINESS ADMINISTRATION (SBA), LOS ANGELES, CALIFORNIA, NOTIFIED THE BUYER BY TELEPHONE THAT HE WAS ADVISING CONSOLIDATED TO SUBMIT A PROTEST BASED ON THE EXPERIENCE REQUIREMENT OF SPECIAL PROVISION 5A; THAT MR. HELPHAND REQUESTED THE BUYER TO WITHHOLD AWARD OF THE CONTRACT UNTIL JANUARY 20, 1965; AND THAT THE BUYER AGREED TO COMPLY WITH SUCH REQUEST.

BY TELEGRAM DATED JANUARY 14, 1965, CONSOLIDATED PROTESTED AGAINST THE MAKING OF ANY AWARD OTHER THAN TO THAT CORPORATION. THE CORPORATION CONTENDED THAT IT MET THE EXPERIENCE REQUIREMENTS OF THE INVITATION BECAUSE ITS KEY PERSONNEL HAD IN EXCESS OF FIVE YEARS' EXPERIENCE IN PROVIDING GUARDS ON A CONTRACTUAL BASIS TO INDUSTRIAL AND MILITARY FACILITIES FOR THE PROTECTION OF CLASSIFIED DEFENSE INFORMATION. LETTER DATED JANUARY 22, 1965, THE SBA REQUESTED THE CONTRACTING OFFICE TO FORWARD TO IT A COPY OF THE INVITATION FOR THE PURPOSE OF DETERMINING IF CONSOLIDATED "MAY APPLY FOR A COC (CERTIFICATE OF COMPETENCY) AS A RESPONSIVE BIDDER FOR REASONS OF CAPACITY OR CREDIT.'

THE RECORD SHOWS THAT A COPY OF THE INVITATION WAS MAILED TO THE SBA AND THAT BY LETTER DATED JANUARY 26, 1965, THAT AGENCY ADVISED THE CONTRACTING OFFICE THAT IT HAD REVIEWED THE INVITATION AND THAT IT WAS ITS OPINION THAT PARAGRAPH 5A OF THE SPECIAL PROVISIONS IS AN EXPERIENCE PROVISION AND THAT IF THE CORPORATION OR THE INDIVIDUALS WORKING FOR THE CORPORATION HAVE THE NECESSARY EXPERIENCE REQUIRED BY PARAGRAPH 5A, THE CORPORATION WOULD QUALIFY UNDER THIS CLAUSE. THE SBA ALSO STATED THAT IT WAS ITS OPINION THAT COMPLIANCE WITH PARAGRAPH 5A IS A CAPACITY FACTOR AND THAT IF THE CONTRACTING OFFICER ISSUES A NEGATIVE FCR IT SHOULD BE FORWARDED TO THE SBA FOR COC PROCESSING.

BY LETTER DATED JANUARY 27, 1965, THE CONTRACTING OFFICER ADVISED CONSOLIDATED THAT ITS BID WAS BEING REJECTED FOR THE REASON THAT THE CORPORATION LACKED THE FIVE YERS OF EXPERIENCE REQUIRED BY PARAGRAPH 5A OF THE SPECIAL PROVISIONS; THAT THE FACT THAT SOME OF ITS KEY PERSONNEL HAD IN EXCESS OF FIVE YEARS' EXPERIENCE WAS NOT SUFFICIENT TO QUALIFY IT FOR AWARD INASMUCH AS IT WAS NECESSARY THAT THE CORPORATION HAVE THE REQUIRED EXPERIENCE; AND THAT AWARD WAS BEING MADE TO THE SECOND LOW BIDDER IN ACCORDANCE WITH ASPR 2-407.9 (B) (3) (II) AS PERFORMANCE MIGHT BE UNDULY DELAYED. AWARD WAS MADE TO THE AETNA MAINTENANCE COMPANY D.B.A. AETNA PLANT PROTECTION COMPANY ON JANUARY 28, 1965.

WE HAVE HELD THAT AWARD OF A CONTRACT MAY BE LIMITED TO THOSE BIDDERS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD WHERE THE BIDDING CONDITIONS SO PROVIDE AND A DETERMINATION HAS BEEN MADE THAT THE INTERESTS OF THE GOVERNMENT WOULD BE SERVED THEREBY. SEE 37 COMP. GEN. 196 AND ID. 420 AND DECISIONS CITED THEREIN. HOWEVER, IN 39 COMP. GEN. 173 WE INDICATED THAT OUR OFFICE DOES NOT CONDONE THE REJECTION OF BIDS OF RESPONSIBLE BIDDERS BECAUSE AS A TECHNICAL MATTER THEY DO NOT MEET PRESCRIBED EXPERIENCE QUALIFICATIONS. IN THAT CONNECTION, IT WAS SAID AT PAGE 178 THAT "THE STATEMENT OF SUCH QUALIFICATIONS SHOULD NOT BE CONSIDERED AS HAVING THE EFFECT OF TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION.' THESE PRINCIPLES WERE CONFIRMED IN OUR DECISIONS OF JUNE 4, 1963 (G-151580) AND SEPTEMBER 17, 1963 (G-152334,43 COMP. GEN. 275).

ON THE BASIS OF THE FACTS OF RECORD AND CONSIDERING THE TYPE OF SERVICE INVOLVED, IT IS NOT SEEN HOW THE FIVE-YEAR OPERATION REQUIREMENT OF THE INVITATION WOULD INSURE RESPONSIBILITY ON THE PART OF A BIDDER OR THAT THE LACK THEREOF WOULD AUTOMATICALLY RENDER A BIDDER NOT RESPONSIBLE. IN OUR OPINION, THE REQUIREMENT, IF STRICTLY CONSTRUED, IS UNREASONABLE.

THE RECORD CONTAINS A COPY OF A FACILITY SECURITY CLEARANCE SURVEY, DD FORMS 374, DATED APRIL 29, 1964, AND THAT FORM SHOWS THAT THE CONSOLIDATED SECURITY SERVICES COMPANY, A DIVISION OF CONSOLIDATED MAINTENANCE SERVICES, INC., WAS ORGANIZED APRIL 15, 1963; THAT THE COMPANY WAS PERFORMING ON A CONTRACTUAL BASIS FOR THE MCDONNELL AIRCRAFT CORPORATION UNDER PURCHASE ORDER NO. V46968; AND THAT THE COMPANY IS ENGAGED IN PROVIDING CLEARED, TRAINED, UNIFORMED AND ARMED GUARDS ON A SEVEN DAYS-, TWENTY-FOUR HOURS PER DAY WORKING BASIS. IN THE CIRCUMSTANCES INVOLVED IN THIS CASE, SINCE CONSOLIDATED WAS THE LOW AND APPARENTLY QUALIFIED BIDDER, WE BELIEVE THAT CONSOLIDATED'S BID SHOULD NOT HAVE BEEN REJECTED SOLELY BECAUSE OF ITS FAILURE TO MEET THE FIVE-YEAR COMPANY OPERATION REQUIREMENT AND THAT ITS BID SHOULD HAVE BEEN ACCEPTED IF IT WAS OTHERWISE CONSIDERED AS A RESPONSIBLE BIDDER. HOWEVER, IN VIEW OF THE FACT THAT THE CONTRACT COVERED THE PERIOD FROM FEBRUARY 8 TO JUNE 30, 1965, AND NOW IS ALMOST COMPLETED, IT WOULD NOT BE IN THE GOVERNMENT'S INTEREST AT THIS TIME TO CANCEL THE AWARD MADE TO AETNA.