B-158373, MAR. 28, 1966

B-158373: Mar 28, 1966

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THE ABOVE-REFERENCED INVITATION WAS ISSUED ON DECEMBER 6. AWARD WAS NOT MADE TO THE FIRM SINCE THE CONTRACTING OFFICER DETERMINED THAT IT WAS NOT SUFFICIENTLY RESPONSIBLE TO PERFORM THE REQUIRED SERVICES. IT IS YOUR CONTENTION THAT INASMUCH AS MANUEL'S BID WAS APPROXIMATELY $30. SINCE YOU HAVE NEVER RECEIVED WRITTEN NOTICE OF POOR PAST PERFORMANCE. IT IS NEITHER PROPER NOR IN THE BEST INTERESTS OF THE GOVERNMENT TO MAKE AN AWARD TO ANY OTHER BIDDER. IN DETERMINING WHETHER A PROSPECTIVE CONTRACTOR IS RESPONSIBLE TO PERFORM THE REQUIRED SERVICES. CONTRACTING OFFICERS ARE GUIDED BY THE RULES SET OUT IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). SECTION 1-903.1 (III) REQUIRES A SATISFACTORY PERFORMANCE RECORD AS A REQUISITE TO A DETERMINATION THAT A BIDDER IS RESPONSIBLE.

B-158373, MAR. 28, 1966

TO MANUEL BROTHERS, INCORPORATED:

WE REFER AGAIN TO YOUR TELEGRAMS DATED JANUARY 19, 1966, AND JANUARY 20, 1966, PROTESTING AGAINST AN AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. 298-58-66B, ISSUED BY THE NAVAL SUPPLY DEPOT, NEWPORT, RHODE ISLAND.

THE ABOVE-REFERENCED INVITATION WAS ISSUED ON DECEMBER 6, 1965, AND SOLICITED BIDS FOR SERVICES AND MATERIALS FOR THE PREPARATION AND SHIPMENT OF HOUSEHOLD GOODS AND UNACCOMPANIED BAGGAGE, SERVICING OF APPLIANCES, STORAGE, DRAYAGE AND RELATED SERVICES AT THE NAVAL AIR STATION, QUONSET POINT, RHODE ISLAND. MANUEL BROTHERS, INCORPORATED, SUBMITTED THE LOWEST BID IN RESPONSE TO THE INVITATION, BUT AWARD WAS NOT MADE TO THE FIRM SINCE THE CONTRACTING OFFICER DETERMINED THAT IT WAS NOT SUFFICIENTLY RESPONSIBLE TO PERFORM THE REQUIRED SERVICES. IT IS YOUR CONTENTION THAT INASMUCH AS MANUEL'S BID WAS APPROXIMATELY $30,000 LOWER THAN THE NEXT LOWEST BID, AND SINCE YOU HAVE NEVER RECEIVED WRITTEN NOTICE OF POOR PAST PERFORMANCE, IT IS NEITHER PROPER NOR IN THE BEST INTERESTS OF THE GOVERNMENT TO MAKE AN AWARD TO ANY OTHER BIDDER.

IN DETERMINING WHETHER A PROSPECTIVE CONTRACTOR IS RESPONSIBLE TO PERFORM THE REQUIRED SERVICES, CONTRACTING OFFICERS ARE GUIDED BY THE RULES SET OUT IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). IN THIS REGARD, ASPR 1-902 PERMITS PURCHASES TO BE MADE FROM AND CONTRACTS AWARDED TO RESPONSIBLE PROSPECTIVE BIDDERS ONLY. THE ASPR ALSO PRESCRIBES CERTAIN MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS; SECTION 1-903.1 (III) REQUIRES A SATISFACTORY PERFORMANCE RECORD AS A REQUISITE TO A DETERMINATION THAT A BIDDER IS RESPONSIBLE, AND WHERE A BIDDER'S PAST PERFORMANCE HAS BEEN UNSATISFACTORY, HE MUST SHOW THAT THE DELINQUENCIES WERE CAUSED BY CIRCUMSTANCES BEYOND HIS CONTROL. IN ADDITION, PAST UNSATISFACTORY PERFORMANCE DUE TO A FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB IS SUFFICIENT IN ITSELF TO JUSTIFY A FINDING OF NONRESPONSIBILITY. SEE B-157549, DECEMBER 21, 1965, B-157203, DECEMBER 29, 1965, AND 43 COMP. GEN. 228.

THE CONTRACTING OFFICER MADE NO PRE-AWARD SURVEY PRIOR TO HIS DECISION THAT MANUEL BROTHERS WAS NOT RESPONSIBLE. YOU CONTEND THAT SUCH ACTION IS NOT PROPER UNDER THE ASPR. WE DO NOT AGREE. ASPR 1 905.4 (B) REQUIRES A PRE-AWARD SURVEY ONLY WHEN THE INFORMATION AVAILABLE TO THE CONTRACTING OFFICER IS NOT SUFFICIENT TO ENABLE HIM TO MAKE A DETERMINATION REGARDING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. FURTHERMORE, AS STATED IN 38 COMP. GEN. 778, 781:

"IT IS WELL ESTABLISHED, BOTH BY DECISIONS OF THE COURTS AND OF OUR OFFICE, THAT AN ADMINISTRATIVE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS CONCLUSIVE UNLESS IT IS SHOWN THAT SUCH DETERMINATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE DEMONSTRATING THE BIDDER'S LACK OF RESPONSIBILITY.'

IN THE INSTANT CASE, THE CONTRACTING OFFICER HAS PRESENTED TO THIS OFFICE VOLUMINOUS EVIDENCE UPON WHICH HIS DECISION WAS BASED, CONTAINING EXHIBITS TO THE EFFECT THAT SERVICE UNDER YOUR CONTRACT FOR 1965 (N298 (127) 20440) HAS BEEN QUITE UNSATISFACTORY. THERE ARE, FOR EXAMPLE, SAMPLINGS OF INSPECTION REPORTS OF UNSATISFACTORY SERVICE, MEMORANDA OF TELEPHONE CALLS, AND INFORMATION PROVIDED BY HOME-OWNERS OF UNSATISFACTORY PERFORMANCE ON INDIVIDUAL PACKING, CRATING, AND MOVING ORDERS RELATIVE TO THE USE OF IMPROPER PACKING MATERIALS, PRACTICES, ETC. THERE IS ALSO EVIDENCE OF UNTIMELY PERFORMANCE ON A SIGNIFICANT NUMBER OF JOBS.

IN VIEW OF THE ABOVE EVIDENCE THIS OFFICE FINDS NO REASON TO DISAGREE WITH THE CONTRACTING OFFICER'S DETERMINATION. YOUR PROTEST, ACCORDINGLY, IS DENIED.