B-158343, OCT. 10, 1966

B-158343: Oct 10, 1966

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ESQUIRE: FURTHER REFERENCE IS MADE TO THE PROTEST OF T. BIDS WERE REQUESTED FOR INTERIOR PAINTING OF APPROXIMATELY 577 FAMILY QUARTERS AT FORT DEVENS. MICKLE'S BID WAS LOW. WAS REJECTED BECAUSE OF THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY BASED ON MICKLE'S POOR RECORD OF PERFORMANCE UNDER PRIOR CONTRACTS. THE CONTRACTING OFFICER'S DECISION WAS BASED ON HIS "DETERMINATION AND FINDINGS" DATED JANUARY 3. THERE WERE ALSO DIFFERENCES UNDER CONTRACT 4033 CONCERNING THE FURNISHING OF MIRRORS AND THE INSTALLATION OF MOULDING AND WINDOW CATCHES. THE CONTRACTING OFFICER'S POSITION IS FURTHER SUPPORTED BY HIS SUPPLEMENTAL DETERMINATIONS AND FINDINGS DATED FEBRUARY 4. WERE SENT TO YOU BY THIS OFFICE.

B-158343, OCT. 10, 1966

TO HARVEY M. GOLDSTEIN, ESQUIRE:

FURTHER REFERENCE IS MADE TO THE PROTEST OF T. MICKLE AND SON, INC., (MICKLE) IN CONNECTION WITH INVITATION FOR BIDS NO. A1-19035-66 28/ENG), ISSUED BY THE DEPARTMENT OF THE ARMY, FORT DEVENS, MASSACHUSETTS.

BIDS WERE REQUESTED FOR INTERIOR PAINTING OF APPROXIMATELY 577 FAMILY QUARTERS AT FORT DEVENS. MICKLE'S BID WAS LOW, BUT WAS REJECTED BECAUSE OF THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY BASED ON MICKLE'S POOR RECORD OF PERFORMANCE UNDER PRIOR CONTRACTS. THE CONTRACTING OFFICER'S DECISION WAS BASED ON HIS "DETERMINATION AND FINDINGS" DATED JANUARY 3, 1966, WHICH SETS FORTH IN DETAIL CERTAIN DEFICIENCIES IN THE PERFORMANCE OF MICKLE UNDER THREE CONTRACTS, NAMELY, NO. DA 19035-A1-4033, FOR REPAIRS AND REHABILITATION OF ROTC SUMMER CAMP BUILDINGS AT FORT DEVENS, MASSACHUSETTS; DA 19035-A1-4051, FOR INTERIOR AND EXTERIOR PAINTING OF 64 GOVERNMENT FAMILY QUARTERS AT CARIBOU, CONNOR, CASWELL AND LIMESTONE, MAINE; AND DA 19035-A1-4052, FOR INTERIOR PAINTING OF 251 FAMILY QUARTERS AT FORT DEVENS, MASSACHUSETTS.

THE ABOVE DEFICIENCIES INVOLVED VIOLATIONS OF THE DAVIS-BACON ACT AND THE CONTRACT WORK HOURS STANDARDS ACT, AS WELL AS FAILURE TO COMPLY WITH THE TECHNICAL SPECIFICATIONS OF THE CONTRACTS, DUE IN LARGE MEASURE TO THE FAILURE OF THE CONTRACTOR TO FURNISH PROPER SUPERINTENDENCE OF THE WORK, AND IN PART TO THE EMPLOYMENT OF INEXPERIENCED PERSONNEL IN THE PERFORMANCE OF SAME. THERE WERE ALSO DIFFERENCES UNDER CONTRACT 4033 CONCERNING THE FURNISHING OF MIRRORS AND THE INSTALLATION OF MOULDING AND WINDOW CATCHES. VIOLATIONS OF THE ABOVE STATUTES INCLUDED FAILURE TO POST WAGE RATES, INCORRECT PREPARATION AND LATE SUBMISSION OF PAYROLL REPORTS, AND FAILURE TO PAY OVERTIME. THE TECHNICAL DEFECTS INCLUDED EXCESSIVE THINNING OF PAINT, RESULTING IN POOR COVERAGE, SPLASHING OF PAINT ON FLOORS, FIXTURES, ELECTRIC SWITCH PLATES, AND GENERAL FAILURE TO PERFORM IN A NEAT AND WORKMANLIKE MANNER, GENERATED IN THE MAIN BY THE PERSISTENT FAILURE OF THE CONTRACTOR'S MANAGEMENT PERSONNEL TO SHOW THE PROPER INTEREST IN COMPLIANCE WITH THE CONTRACT TERMS, PARTICULARLY BY NOT FURNISHING ADEQUATE SUPERVISION EITHER IN PERSON OR THROUGH QUALIFIED EMPLOYEES, DESPITE FREQUENT ADMONISHMENT BY THE CONTRACTING OFFICER AND HIS REPRESENTATIVES BOTH PRIOR TO AND DURING THE COURSE OF PERFORMANCE OF THE ABOVE CONTRACTS.

THE CONTRACTING OFFICER'S POSITION IS FURTHER SUPPORTED BY HIS SUPPLEMENTAL DETERMINATIONS AND FINDINGS DATED FEBRUARY 4, MARCH 14 AND MARCH 25, 1966, COPIES OF WHICH, TOGETHER WITH THE ABOVE ,FINDING" OF JANUARY 3, WERE SENT TO YOU BY THIS OFFICE. IN ANSWER TO THESE FINDINGS, STATEMENTS HAVE BEEN SUBMITTED BY MESSRS. WARREN AND THEODORE MICKLE, A LARGE SEGMENT OF WHICH IS DEVOTED TO HARDWARE AND CARPENTRY UNDER CONTRACT 4033, WHICH ARE NOT OF MAJOR IMPORTANCE. EXTENSIVE REFERENCE IS ALSO MADE TO THE VIOLATIONS OF THE PAYROLL REPORTING AND OTHER LABOR PROVISIONS OF THE CONTRACTS, AND THESE VIOLATIONS ARE REFERRED TO AS PROCEDURAL IN NATURE AND UNINTENTIONAL, AND ARE ALLEGED TO HAVE BEEN CORRECTED FORTHWITH IN EACH INSTANCE. THE ARMY RECORDS DO NOT BEAR THIS OUT. ON THE CONTRARY, THEY SHOW THAT THERE WERE CONTINUOUS VIOLATIONS OF A MATERIAL NATURE AND THAT THEY WERE CORRECTED, IF AT ALL, ONLY AFTER REPEATED NOTICE FROM THE CONTRACTING OFFICER. VIOLATIONS UNDER CONTRACT NO. 4033 INCLUDED FAILURE TO POST WAGE RATES, LATE SUBMISSION OF PAYROLLS, INCORRECT PREPARATION OF PAYROLLS IN THAT TRADES AND CLASSIFICATIONS WERE OMITTED, AND UNDERPAYMENT OF THE BASIC HOURLY RATE. VIOLATIONS UNDER CONTRACT NO. 4051 INCLUDED LATE SUBMISSION OF PAYROLL REPORTS AND FAILURE TO PAY OVERTIME. A REVIEW OF THE PAYROLL RECORDS FOR CONTRACT NO. 4052, SHOWING THE DATES THEY WERE OFFICIALLY RECEIVED AT FORT DEVENS, DISCLOSES THAT 15 OUT OF 29 WEEKLY PAYROLL REPORTS WERE SUBMITTED LATE IN VARYING DEGREES AND THAT THE LATE SUBMISSION CONTINUED THROUGH THE 28TH PAYROLL. THE RECORD SHOWS FURTHER THAT THE WAGE SCHEDULES FOR THIS CONTRACT WERE POSTED ONLY AFTER REPEATED URGINGS AND WARNINGS AND THEN IN AN OBSCURE SPOT AND IN A HAPHAZARD MANNER. THE ABOVE DEFICIENCIES WERE OF REAL IMPORTANCE AND NECESSITATED NUMEROUS CONTACTS IN PERSON, BY TELEPHONE AND BY CORRESPONDENCE. HOWEVER, THE MAJOR DEFICIENCIES UPON WHICH THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS BASED WERE IN THE ACTUAL PERFORMANCE OF WORK AT THE WORK SITES DURING THE CONTRACT PERIODS AND THE COMPLETE DISREGARD OF THEIR CONTRACTUAL RESPONSIBILITY BY THE OFFICERS OF THE COMPANY.

WITH REFERENCE TO CONTRACT NO. 4033, A PRE-CONSTRUCTION CONFERENCE WAS HELD ON MARCH 12, 1965, ATTENDED BY GOVERNMENT REPRESENTATIVES AND BY MR. WARREN MICKLE (REFERRED TO HEREINAFTER AS MR. MICKLE) TO ENSURE THAT THERE WAS COMPLETE UNDERSTANDING AS TO THE REQUIREMENTS OF THE CONTRACT AND THE PROVISIONS OF PERTINENT LABOR LAWS. THIS MEETING WAS CONSIDERED BY THE CONTRACTING OFFICER TO BE PARTICULARLY IMPORTANT WHERE T. MICKLE AND SON IS INVOLVED, SINCE PRIOR EXPERIENCE HAD SHOWN THAT IT WAS NECESSARY TO PROVIDE A CLOSE INSPECTION AT ALL TIMES AND TO CONSTANTLY REMIND THIS CONTRACTOR OF COMPLETION SCHEDULES IN ORDER TO SECURE A REASONABLY TIMELY AND ACCEPTABLE JOB. IT WAS NECESSARY, HOWEVER, TO HOLD ANOTHER MEETING ON APRIL 23, 1965, ALSO ATTENDED BY MR. MICKLE, FOR THE PURPOSE OF CALLING THE CONTRACTOR'S ATTENTION TO VARIOUS CONTRACT DEFICIENCIES. MR. MICKLE HAS DENIED THAT THERE WAS EXCESSIVE THINNING OF LATEX TYPE PAINT; HAS QUESTIONED THE GOVERNMENT FINDING THAT THE QUALITY OF THE POINTING WAS GENERALLY SUBSTANDARD AND UNACCEPTABLE; AND ALLEGES THAT A QUALIFIED SUPERVISOR WAS IN ATTENDANCE AT ALL TIMES. THE FILE CONTAINS A STATEMENT BY JOSEPH HALE, WHO PAINTED UNDER CONTRACT NO. 4033 DURING THE PERIOD FROM APRIL 9 TO APRIL 23, 1965, THAT HE WAS INSTRUCTED BY MR. MICKLE'S SUPERINTENDENT TO THIN THE PAINT USED IN THE LATRINE AREAS IN A PROPORTION OF ABOUT HALF AND HALF, WHEREAS THE SPECIFICATIONS PERMIT THINNING IN ACCORDANCE WITH THE MANUFACTURER'S DIRECTIONS "BUT NOT IN EXCESS OF ONE PINT OF SUITABLE THINNER PER GALLON.' THE REPRESENTATIVE OF THE COMPANY FURNISHING THE PAINT ALSO ATTENDED THE ABOVE MEETING OF APRIL 23 AND STATED THAT, IF PROPERLY USED AND NOT OVERTHINNED, THE PAINT WOULD UNQUESTIONABLY COVER IN TWO COATS. ADDITIONALLY, THE OFFICIAL WRITTEN RECORD OF THIS MEETING RECORDS THE FACT THAT MR. MICKLE AGREED THAT THE PAINT HAD BEEN THINNED TOO MUCH, RESULTING IN POOR COVERAGE, AND THAT THE WORK WAS SLOPPY AND ALL CEILINGS WOULD RECEIVE ANOTHER COAT. WITH REFERENCE TO THE ALLEGATION THAT A QUALIFIED SUPERVISOR WAS IN ATTENDANCE AT ALL TIMES, THE CONTRACTING OFFICER STATES IN HIS SUPPLEMENTAL DETERMINATION AND FINDINGS DATED JUNE 24, 1966, THAT THE SUPERVISORS EMPLOYED BY MR. MICKLE SPENT THE MAJORITY OF THEIR TIME WORKING, DELIVERING PAINT AND DROP CLOTHS, AND DOING OTHER TASKS, AND THAT THE SUPERVISION GIVEN BY THE INDIVIDUALS INVOLVED WAS MARGINAL.

WITH REFERENCE TO CONTRACT NO. 4051 MR. MICKLE STATES THAT HE WAS NEVER ADVISED OF THE INEXPERIENCE OF PERSONNEL AND THAT HE CONSIDERS A WORKING FOREMAN CAN GIVE ADEQUATE SUPERVISION WHERE SMALL CREWS ARE UTILIZED AS IN THIS CONTRACT. AT THE TIME OF YOUR VISIT TO THIS OFFICE WITH MR. MICKLE, HE STATED FURTHER THAT THE ONLY NOTICE OF TECHNICAL DEFICIENCIES WAS A REQUEST BY THE CONTRACTING OFFICER AT FORT DEVENS ON A FRIDAY (NO DATE GIVEN) TO GO TO THE SITE OF THE WORK TO CHECK ON COMPLAINTS AS TO PERFORMANCE; THAT HE FLEW TO MAINE THE FOLLOWING MONDAY; AND THAT THE JOB HAD BEEN COMPLETED AND NO DEFICIENCIES WERE BROUGHT TO HIS ATTENTION. HOWEVER, IN HIS SUPPLEMENTAL DETERMINATION AND FINDINGS DATED JULY 11, 1966, THE CONTRACTING OFFICER STATES THAT A COMPLAINT WAS REGISTERED BY MAJOR SMITH, EXECUTIVE OFFICER HDQ. 3D MISSILE BN., 61ST ARTILLERY, LORING AIR FORCE BASE, MAINE, LISTING VARIOUS AREAS OF SUBSTANDARD PERFORMANCE AND ADVISING THAT THE FOREMAN WAS PAINTING 100 PERCENT OF THE TIME IN LIEU OF SUPERVISING THE CREW, THAT THE FOREMAN WAS NOT COOPERATIVE, AND THAT CONSIDERATION SHOULD BE GIVEN TO REQUESTING THAT HE BE REPLACED. RECORDS IN THE CONTRACT FILE INDICATE THAT MR. MICKLE WAS ADVISED OF THIS COMPLAINT BY THE CONTRACTING OFFICER ON JUNE 30, 1965, AND WAS REQUESTED TO CALL AT THE WORKSITE NO LATER THAN JULY 6, 1965, TO TAKE CORRECTIVE ACTION, FAILING WHICH, CONSIDERATION WOULD BE GIVEN TO PLACING THE CONTRACT IN A DEFAULT STATUS. THE CONTRACT RECORD FURTHER INDICATES THAT THESE DEFICIENCIES WERE TEMPORARILY CORRECTED, BUT THAT THEY LATER RECURRED AND CONTINUED THROUGHOUT THE ENTIRE CONTRACT PERIOD, AND THAT THE LOW QUALITY OF THE WORK WAS A CONSTANT SUBJECT OF DISCUSSION BETWEEN THE INSPECTION PERSONNEL AND THE FOREMAN. AS TO THE ADEQUACY OF SUPERVISION BY A WORKING FOREMAN WHERE, AS HERE, THE HOUSING IS PAINTED WHILE BEING OCCUPIED BY MILITARY PERSONNEL, WHICH REQUIRES VERY CLOSE SUPERVISION, IT IS THE OPINION OF THE CONTRACTING OFFICER THAT THE CONTRACTOR SHOULD HAVE ENGAGED A FOREMAN WHO UTILIZED FULL TIME IN SUPERVISION, ARRANGING SCHEDULES WITH FAMILIES AND DIRECTING THE WORKMEN, WHICH WAS NOT DONE. SEPTEMBER 1, 1965, THE COMMANDING OFFICER, 3D MISSILE BATTALION, 61ST ARTILLERY, LORING AIR FORCE BASE, MAINE, ADDRESSED A LETTER TO THE COMMANDING GENERAL, FORT DEVENS, IN WHICH HE STRONGLY CRITICIZED THE CONTRACTOR'S COMPLETE INDIFFERENCE AND UNCOOPERATIVE ATTITUDE, AND THE INFERIOR WORKMANSHIP UNDER CONTRACT NO. 4051. THIS LETTER FURTHER STATES THAT IT WAS ONLY BECAUSE OF 100 PERCENT CONTINUOUS SUPERVISION, ASSISTANCE AND PRODDING OF ONE AIRMAN 1ST CLASS AND ONE U.S. ARMY SERGEANT THAT THE WORK WAS FINISHED IN A BARELY MARGINAL MANNER.

AS TO CONTRACT NO. 4052, THE ORIGINAL FINDINGS OF JANUARY 3 MAKE REFERENCE TO EMPLOYMENT OF INEXPERIENCED PERSONNEL, RESULTING IN LOW QUALITY OF WORK PERFORMED, AND STATE THAT THE RECORD SHOWS A PERSONNEL TURN-OVER OF APPROXIMATELY 400 PERCENT FROM JULY 1965 THROUGH NOVEMBER 1965 ON THIS RELATIVELY SMALL PROJECT. THE CONTRACTING OFFICER FURTHER FINDS THAT THERE WAS COMPLETE INDIFFERENCE BY SUPERVISORY PERSONNEL TO AUTHORIZED AND LEGITIMATE REQUESTS FOR CORRECTION OF DEFICIENCIES BY GOVERNMENT INSPECTING PERSONNEL. MR. MICKLE STATES THAT THE FIRST TIME THE QUALITY OF THE WORKMANSHIP WAS CHALLENGED WAS BY NOTICE OF DEFAULT DATED AUGUST 11, 1965, AND THAT THE CONTRIBUTING FACTORS APPARENTLY CORRECTED THEMSELVES SINCE A CORRECTION WAS REQUIRED WITHIN TEN DAYS AND THE CONTRACTOR'S RIGHT TO PROCEED WAS NEVER TERMINATED. TO THE CONTRARY, THE "ON SITE INSPECTION REPORT DATA" OF MR. WILLIAM A. STRUNZ, THE GOVERNMENT INSPECTOR ON THE PROJECT, SETS FORTH A DETAILED STATEMENT OF DEFICIENCIES FOR THE PERIOD JUNE 8 THROUGH DECEMBER 7, 1965, AND INVITES ATTENTION "TO THE REPETITIOUS NOTIFICATION TO THE CONTRACTOR'S FOREMAN OF IDENTICAL DEFICIENCIES PRACTICALLY FROM DAY TO DAY, WITH A CONTINUATION OF THESE THROUGHOUT THE ENTIRE CONTRACT PERIOD.' MR. STRUNZ FURTHER STATES TO NOTIFY MR. MICKLE THAT HIS PERSONAL ATTENTION AT THE WORK SITE WAS INDICATED, BUT WITH NEGATIVE RESULTS, IN THAT MR. MICKLE WAS NOT OBSERVED ON THE JOB MORE THAN SIX TIMES DURING THE PAINTING OPERATION, WHICH COVERED APPROXIMATELY SIX MONTHS. THE INSPECTION REPORT INDICATES THAT THE REASON FOR THE POOR WORKMANSHIP IN MANY CASES WAS NOT THE FAULT OF THE INDIVIDUAL WORKERS, SOME OF WHOM WERE QUALIFIED WORKMEN, BUT WAS DUE TO THE REQUIREMENT THAT HE COMPLETE A GIVEN AMOUNT OF WORK IN A PERIOD OF ONE DAY, WHICH RESULTED IN A FAST JOB AND AN UNSATISFACTORY ONE.

BOTH 10 U.S.C. 2305 (C) AND SECTION 1-902 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) PROVIDE THAT CONTRACTS SHALL BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. SECTION 1-903.1/III) OF ASPR FURTHER PROVIDES THAT A PROSPECTIVE CONTRACTOR MUST HAVE A SATISFACTORY RECORD OF PERFORMANCE, AND THAT PAST UNSATISFACTORY PERFORMANCE WHICH IS DUE TO FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY. THE DETERMINATION OF THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY, AND IN THE ABSENCE OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE JUDGMENT OF THE CONTRACTING OFFICER. 38 COMP. GEN. 131; 37 ID. 798; ID. 430, 435. BASED UPON THE PRESENT RECORD WE ARE INCLINED TO THE VIEW THAT THE CONTRACTING OFFICER'S DETERMINATION IN THIS CASE IS WELL DOCUMENTED BY HIS FINDINGS AND IS SUPPORTED TO THE FULLEST BY THE PERIODIC ON-SITE DEFICIENCY REPORTS OF THE GOVERNMENT INSPECTORS. WE THEREFORE SEE NO VALID BASIS ON WHICH THE CONTRACTING OFFICER'S DETERMINATION MAY BE QUESTIONED, AND YOUR PROTEST MUST THEREFORE BE DENIED.

WHEN YOU VISITED THIS OFFICE WITH MR. MICKLE, HE STATED THAT WORD OF THE REJECTION ACTION HAD CAUSED T. MICKLE AND SON TO LOSE TWO CONTRACTS WITH THE CITY OF BOSTON ON WHICH IT WAS LOW BIDDER, AND HE EXPRESSED CONCERN OVER THE CONTINUED ADVERSE EFFECT ON HIS COMPANY'S BUSINESS IF THE ARMY'S ACTION IN THE PRESENT CASE WAS CARRIED FORWARD AND RESULTED IN HIS NOT RECEIVING CONSIDERATION FOR FUTURE AWARDS. THIS MATTER WAS CALLED TO THE ATTENTION OF THE DEPARTMENT OF THE ARMY AND THE DEPARTMENT'S POSITION IS STATED BY THE CONTRACTING OFFICER THUSLY: "INASMUCH AS ALL BIDS ARE CONSIDERED ON THEIR INDIVIDUAL MERIT, A LOW BID SUBMITTED BY T. MICKLE AND SON WOULD BE REVIEWED FOR CONSIDERATION AND A RE-SURVEY OF THE COMPANY'S PERFORMANCE AT THAT PARTICULAR TIME WOULD THEN BE MADE. IF THE PRE-AWARD SURVEY INDICATED THAT THE PERFORMANCE OF THE COMPANY HAD IMPROVED TO THE EXTENT THAT IT WOULD MEET THE STANDARDS REQUIRED BY THE DEPARTMENT OF ARMY AND THE CRITERIA OUTLINED IN THE ARMED SERVICES PROCUREMENT REGULATION, AWARD WOULD BE MADE. THE FACT THAT A CONTRACTOR'S PERFORMANCE CAN IMPROVE UNDER VARYING CONDITIONS IS ALWAYS A MATTER FOR PRIME CONSIDERATION.'

WE INTERPRET THE FOREGOING AS ADVICE THAT THE INSTANT DETERMINATION OF NONRESPONSIBILITY WILL NOT BE CONTROLLING IN ANY FUTURE PROCUREMENT IN WHICH MICKLE MAY BE THE LOW BIDDER, BUT THAT A NEW DETERMINATION WILL BE MADE AT THAT TIME WHICH WILL ALSO GIVE DUE CONSIDERATION TO MICKLE'S PERFORMANCE DURING THE INTERVENING PERIOD. IT IS OUR OPINION SUCH PROCEDURE WOULD BE APPROPRIATE, AND WE TRUST THAT ANY SUCH REEVALUATION WILL SHOW SUFFICIENT CORRECTION OF THE PRESENT DEFICIENCIES TO JUSTIFY FUTURE AWARDS TO MICKLE.