B-160152, OCT. 7, 1966

B-160152, OCT. 7, 1966

TO ADMINISTRATIVE SERVICES, FOREST SERVICE, DEPARTMENT OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 23, 1966, REQUESTING A DECISION AS TO PROPRIETY OF REJECTING THE BID OF AUDIOVISION UNDER INVITATION FOR BIDS NO. R5-67-18.

THE INVITATION ISSUED BY THE FOREST SERVICE, SAN FRANCISCO, CALIFORNIA, ON JULY 21, 1966, AND OPENED ON JULY 28, 1966, SOLICITED BIDS FOR FURNISHING FILM LIBRARY SERVICE DURING THE FISCAL YEAR 1967. PARAGRAPH 7 OF THE SPECIAL PROVISIONS OF THE INVITATION PROVIDES AS FOLLOWS:

"7. PLANT FACILITIES AND EQUIPMENT

THE CONTRACTOR'S EQUIPMENT AND FACILITIES MUST BE ADEQUATE FOR THE SATISFACTORY PERFORMANCE OF THE SERVICES TO BE REQUIRED UNDER THIS CONTRACT. SUCH EQUIPMENT AND PLANT FACILITIES MAY BE SUBJECT TO INSPECTION BY THE CONTRACTING OFFICER BEFORE AWARD. THE PERSON OR COMPANY SUBMITTING THE MOST ACCEPTABLE BID MAY BE REQUIRED TO SUBMIT SUFFICIENT EVIDENCE THAT HE HAS IMMEDIATELY AVAILABLE AS NEEDED, SUFFICIENT RESOURCES TO PROVIDE THE NECESSARY EQUIPMENT, MATERIALS AND PERSONNEL, TO ENABLE HIM TO MEET THE REQUIREMENTS OF THE CONTRACT. CONTRACTING OFFICER'S DECISION SHALL BE FINAL AS TO ADEQUACY OF CONTRACTOR'S PERSONNEL, EQUIPMENT AND FACILITIES FOR SATISFACTORY PERFORMANCE UNDER THIS CONTRACT. TO BE CONSIDERED FOR AWARD, THE BIDDER MUST BE, AND HAVE BEEN REGULARLY ENGAGED IN THE BUSINESS OF PROVIDING FILM LIBRARY SERVICE FOR TWO YEARS OR MORE.'

IN A MEMORANDUM DATED AUGUST 15, 1966, THE CONTRACTING OFFICER STATES THAT OF FOUR BIDS RECEIVED THE LOWEST WAS SUBMITTED BY AUDIOVISION; HOWEVER, HE HAS DETERMINED THAT ITS BID SHOULD BE REJECTED BECAUSE IT DOES NOT MEET THE EXPERIENCE REQUIREMENT OF PARAGRAPH 7 OF THE SPECIAL PROVISIONS OF THE INVITATION.

AS FURTHER JUSTIFICATION FOR HIS DETERMINATION TO REJECT THE BID THE CONTRACTING OFFICER STATES THAT IT IS THE INTENT OF THE INVITATION TO PLACE THE FOREST SERVICE FILM LIBRARY AND SLIDE-TAPE PROGRAMS WITH A COMMERCIAL LIBRARY SERVICE; THAT OVER 100 RANGER DISTRICTS MAKE USE OF THE FILM LIBRARY AS WELL AS SCHOOLS AND OTHER AGENCIES WHOSE PROGRAMS DEPEND UPON TIMELY RECEIPT OF FILMS AND SLIDE-TAPE PROGRAMS; AND THAT, THEREFORE, THE FILM LIBRARY MUST BE TRANSFERRED WITHOUT INTERRUPTION OF CUSTOMER SERVICE AND PROVIDE EFFICIENT LIBRARY SERVICE OF BOOKING, SHIPPING AND FILM INSPECTION AND STORAGE. THE CONTRACTING OFFICER FURTHER STATES THAT ALTHOUGH AUDIOVISION IS ENGAGED IN THE REPAIR AND MAINTENANCE OF MOTION PICTURE PROJECTORS, TAPE RECORDERS AND SIMILAR ELECTRONICS EQUIPMENT IT HAS NO BOOKING AND FOLLOWING PROCEDURE AND NO LIBRARY FOR PUBLIC ISSUE.

WE HAVE HELD THAT THERE IS NO OBJECTION TO INCLUDING IN INVITATIONS FOR BIDS PROVISIONS SIMILAR TO THAT CONTAINED IN PARAGRAPH 7 QUOTED ABOVE, ADVISING BIDDERS OF MINIMUM STANDARDS TO BE APPLIED IN DETERMINING THE QUALIFICATIONS OF BIDDERS. 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.' THEREFORE CANNOT AGREE WITH THE CONTRACTING OFFICER THAT THE BID OF AUDIOVISION SHOULD BE REJECTED SOLELY ON THE BASIS OF ITS FAILURE TO CONFORM TO THE 2-YEAR EXPERIENCE REQUIREMENT OF THE INVITATION. WE THINK THAT CONSIDERATION MUST ALSO BE GIVEN TO ITS ACTUAL CAPABILITIES AND COMPETENCY.

WHILE IT IS INDICATED BY THE CONTRACTING OFFICER IN HIS FINDING OF AUGUST 15, 1966, THAT THERE IS REASONABLE GROUND FOR DOUBT AS TO THE RESPONSIBILITY OF AUDIOVISION, WE BELIEVE THAT REJECTION OF ITS BID AND AWARD TO ANY OTHER BIDDER SHOULD BE SUPPORTED BY A SPECIFIC DETERMINATION THAT IT IS NOT A "RESPONSIBLE" BIDDER WITHIN THE MEANING OF SECTION 303 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 41 U.S.C. 253.

ACCORDINGLY, IF SUCH A DETERMINATION CANNOT BE MADE WE SEE NO LEGAL BASIS FOR REJECTING THE BID OF AUDIOVISION.