B-161211, SEP. 12, 1967

B-161211: Sep 12, 1967

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A CONTRACTOR WHO DID NOT HAVE REQUIRED SECURITY CLEARANCE AT TIME OF PERFORMANCE BUT WHO IS NOW PERFORMING UNDER PROPER FACILITY CLEARANCE DOES NOT NEED TO HAVE AWARD DISTURBED NOTWITHSTANDING THAT THE FACILITY CLEARANCE SHOULD HAVE BEEN SECURED PRIOR TO COMMENCEMENT. THE MATTER OF COMPLIANCE WITH THE SECURITY REQUIREMENTS IS BROUGHT TO THE ATTENTION OF THE NAVY TO PRECLUDE A SIMILAR SITUATION IN OTHER PROCUREMENTS. TO HUDSON AND CREYKE: FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED JULY 28 AND AUGUST 14. WE STATED IN THIS RESPECT THAT THE CRITICAL TIME FOR MEETING THIS RESPONSIBILITY REQUIREMENT WAS THE TIME FOR COMMENCEMENT OF PERFORMANCE. THAT THE PRESENT CONTRACTOR HAS NEVER HAD AND DID NOT THEN HAVE THE FACILITY CLEARANCE REQUIRED BY THE ADVERTISED SPECIFICATIONS.

B-161211, SEP. 12, 1967

BIDDERS - RESPONSIBILITY - SECURITY CLEARANCE DECISION CONCERNING PROTEST OF PACIFIC COAST UTILITIES SERVICE, INC., AGAINST AWARD OF NAVY CONTRACT TO SAN FRANCISCO BLDG. MAINTENANCE, INC. A CONTRACTOR WHO DID NOT HAVE REQUIRED SECURITY CLEARANCE AT TIME OF PERFORMANCE BUT WHO IS NOW PERFORMING UNDER PROPER FACILITY CLEARANCE DOES NOT NEED TO HAVE AWARD DISTURBED NOTWITHSTANDING THAT THE FACILITY CLEARANCE SHOULD HAVE BEEN SECURED PRIOR TO COMMENCEMENT. HOWEVER, THE MATTER OF COMPLIANCE WITH THE SECURITY REQUIREMENTS IS BROUGHT TO THE ATTENTION OF THE NAVY TO PRECLUDE A SIMILAR SITUATION IN OTHER PROCUREMENTS. DECISION OF JULY 11, 1967, AFFIRMED.

TO HUDSON AND CREYKE:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED JULY 28 AND AUGUST 14, 1967, REQUESTING RECONSIDERATION OF OUR DECISION B-161211 DATED JULY 11, 1967, WHEREIN WE DENIED THE PROTEST OF PACIFIC COAST UTILITIES SERVICE, INC., AGAINST THE AWARD OF NAVY CONTRACT NO. N62474 67-C-0355 TO SAN FRANCISCO BUILDING MAINTENANCE, INC.

WE HELD IN THE CITED DECISION THAT THE INVITATION REQUIREMENT FOR SECURITY CLEARANCES OF BOTH THE SUCCESSFUL BIDDER AND ITS EMPLOYEES RELATED TO THE RESPONSIBILITY OF THE BIDDER AND DID NOT CONSTITUTE A MATTER OF RESPONSIVENESS. WE STATED IN THIS RESPECT THAT THE CRITICAL TIME FOR MEETING THIS RESPONSIBILITY REQUIREMENT WAS THE TIME FOR COMMENCEMENT OF PERFORMANCE, PLUS ANY NECESSARY LEAD TIME.

YOU ADVISE IN YOUR LETTER OF JULY 28, 1967, THAT THE PRESENT CONTRACTOR HAS NEVER HAD AND DID NOT THEN HAVE THE FACILITY CLEARANCE REQUIRED BY THE ADVERTISED SPECIFICATIONS, AND THAT IT IS IMMATERIAL THAT THE CONTRACTOR IS PERFORMING THE CONTRACT WITH CLEARED PERSONNEL. IN SUPPORT THEREOF, YOU FORWARDED FIVE AFFIDAVITS ATTESTING TO THE CONTRACTOR'S FAILURE TO MEET THE SECURITY REQUIREMENTS. IN YOUR SUBSEQUENT LETTER OF AUGUST 14, 1967, YOU ADVISE THAT THE PRESENT CONTRACTOR HAS NOW OBTAINED THE REQUIRED FACILITY CLEARANCE AND IS PERFORMING WITHIN THE SPECIFICATIONS BUT YOU STATE THAT IN YOUR VIEW THIS SHOULD HAVE NO BEARING ON YOUR BASIC CONTENTION IN THE CASE.

IN RESPONSE TO THE CONTENTIONS RAISED BY YOU WITH REFERENCE TO COMPLIANCE WITH THE SECURITY REQUIREMENTS, THE DEPARTMENT OF THE NAVY HAS ADVISED: "THE PACIFIC COAST UTILITIES SERVICE, INC.'S PROTEST QUESTIONS WHETHER THE SAN FRANCISCO BUILDING MAINTENANCE COMPANY HAS A CURRENT FACILITY CLEARANCE. THE COGNIZANT OFFICER ON THE WORK, THE OFFICER IN CHARGE OF CONSTRUCTION, SAN FRANCISCO BAY NAVAL SHIPYARD, HAS ADVISED THAT THE SAN FRANCISCO BUILDING MAINTENANCE COMPANY RECEIVED A FACILITY CLEARANCE OF - SECRET- EFFECTIVE 7 AUGUST 1967. IN THIS CONNECTION, IT IS NOTED THAT THE BID INVITATION STATES NO PRECISE PERIOD OF TIME IN WHICH THE CONTRACTOR'S COMPANY MUST OBTAIN SECURITY CLEARANCE.

"OUR FIELD OFFICE HAS ADVISED THAT THE CONTRACTOR HAS FURNISHED SATISFACTORY CLEARED PERSONNEL TO PERFORM WORK IN THE SPECIFIED AREAS AND SUCH CLEARED PERSONNEL HAVE BEEN FURNISHED FROM THE BEGINNING OF THE CONTRACT PERIOD. THE JANITORIAL WORK REQUIRED BY THIS CONTRACT HAS BEEN PERFORMED IN A SATISFACTORY MANNER AT ALL TIMES. IT IS FURTHER NOTED THAT, ALTHOUGH THE CONTRACTOR APPLIED FOR FACILITY CLEARANCE IN A TIMELY MANNER AND DID EVERYTHING HE COULD TO EXPEDITE SUCH CLEARANCE, GOVERNMENT CAUSED ADMINISTRATIVE DELAYS PREVENTED THE CONTRACTOR FROM OBTAINING THE CLEARANCE IN A PROMPT FASHION. ALSO, IT SHOULD BE POINTED OUT THAT THE INSTANT JANITORIAL SERVICES CONTRACT COVERS SOME 840,000 SQUARE FEET OF AREA, INVOLVING SIXTY-FOUR SEPARATE BUILDINGS; WHILE THE RESTRICTED AREA CONSTITUTES APPROXIMATELY 66,000 SQUARE FEET IN ONLY TWO OF THESE SIXTY- FOUR BUILDINGS.'

WHILE THE SECURITY CLEARANCE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS WERE NOT STRICTLY COMPLIED WITH IN THIS CASE, THE RECORD SHOWS THAT CLEARED PERSONNEL WERE UTILIZED IN SECURITY AREAS AND THAT, AS YOU STATE, THE CONTRACTOR IS CURRENTLY PERFORMING UNDER A PROPER FACILITY CLEARANCE. ALTHOUGH WE FEEL THAT SUCH FACILITY CLEARANCE SHOULD HAVE BEEN SECURED PRIOR TO COMMENCEMENT OF CONTRACT PERFORMANCE, IT WOULD NOT BE IN THE BEST INTEREST OF THE UNITED STATES TO DISTURB THE AWARD OF THE CONTRACT AT THIS LATE DATE. CF. 40 COMP. GEN. 339. HOWEVER, WE ARE BRINGING THE MATTER TO THE ATTENTION OF THE COGNIZANT PROCUREMENT OFFICIALS TO PREVENT A RECURRENCE OF THIS SITUATION.