B-161227, MAY 22, 1967

B-161227: May 22, 1967

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TO FEDERAL REPORTING SERVICES: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7. WAS ISSUED ON MARCH 3. THE LOW BID OF FEDERAL REPORTING SERVICES WAS REJECTED SINCE IT WAS DETERMINED TO BE A NONRESPONSIBLE BIDDER. AWARD WAS MADE ON APRIL 5. IT IS YOUR CONTENTION THAT BECAUSE FEDERAL REPORTING SERVICES SUBMITTED THE LOWEST BID. IT SHOULD HAVE BEEN AWARDED THE CONTRACT AS A SMALL BUSINESS FIRM. YOU CONTEND THAT UPON LEARNING THAT YOUR BID WAS LOW. THESE REPORTS ARE THE PRINCIPAL CONSIDERATION INVOLVED IN THE FINAL DETERMINATION AS TO WHETHER. WELFARE ASSISTANCE WILL BE PROVIDED BY THE DISTRICT OF COLUMBIA TO APPLICANTS WHO HAD BEEN PREVIOUSLY INTERVIEWED BY SOCIAL WORKERS. ACCURACY IN TRANSCRIPTION WAS OF PARAMOUNT IMPORTANCE AS EVIDENCED BY THE FOLLOWING INVITATION PARAGRAPH ENTITLED "CONTRACTOR'S QUALIFICATIONS": "CONTRACTOR MUST DEMONSTRATE TO THE SATISFACTION OF THE DISTRICT THAT HE HAS ADEQUATE FACILITIES AND PERSONNEL TO PERFORM SERVICE UNDER THIS CONTRACT.

B-161227, MAY 22, 1967

TO FEDERAL REPORTING SERVICES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1967, PROTESTING AGAINST THE ACTION OF THE DISTRICT OF COLUMBIA (D.C.), DEPARTMENT OF WELFARE, IN REJECTING YOUR LOW BID AND IN MAKING AN AWARD UNDER INVITATION FOR BIDS NO. 03-243-7-0359-GW TO THE HIGHER BIDDER.

THE INVITATION, COVERING TRANSCRIPTION SERVICES, WAS ISSUED ON MARCH 3, 1967, TO 22 PROSPECTIVE BIDDERS. HOWEVER, ONLY FEDERAL REPORTING SERVICES AND MANPOWER INCORPORATED SUBMITTED BIDS IN THE AMOUNTS OF $1.10 PER PAGE AND $1.14 PER PAGE, RESPECTIVELY. THE LOW BID OF FEDERAL REPORTING SERVICES WAS REJECTED SINCE IT WAS DETERMINED TO BE A NONRESPONSIBLE BIDDER. AWARD WAS MADE ON APRIL 5, 1967, TO MANPOWER INCORPORATED AT ITS BID PRICE.

IT IS YOUR CONTENTION THAT BECAUSE FEDERAL REPORTING SERVICES SUBMITTED THE LOWEST BID, IT SHOULD HAVE BEEN AWARDED THE CONTRACT AS A SMALL BUSINESS FIRM. ALSO, YOU CONTEND THAT UPON LEARNING THAT YOUR BID WAS LOW, YOU INCURRED FINANCIAL LIABILITIES IN MAKING PREPARATIONS TO FULFILL THE CONTEMPLATED CONTRACT.

THE TRANSCRIPTION SERVICES ADVERTISED INVOLVED THE TRANSCRIBING OF RECORDED CONFIDENTIAL REPORTS OF SOCIAL WORKERS INTO WRITTEN WELFARE RECORDS. THESE REPORTS ARE THE PRINCIPAL CONSIDERATION INVOLVED IN THE FINAL DETERMINATION AS TO WHETHER, OR TO WHAT EXTENT, WELFARE ASSISTANCE WILL BE PROVIDED BY THE DISTRICT OF COLUMBIA TO APPLICANTS WHO HAD BEEN PREVIOUSLY INTERVIEWED BY SOCIAL WORKERS. ACCURACY IN TRANSCRIPTION WAS OF PARAMOUNT IMPORTANCE AS EVIDENCED BY THE FOLLOWING INVITATION PARAGRAPH ENTITLED "CONTRACTOR'S QUALIFICATIONS":

"CONTRACTOR MUST DEMONSTRATE TO THE SATISFACTION OF THE DISTRICT THAT HE HAS ADEQUATE FACILITIES AND PERSONNEL TO PERFORM SERVICE UNDER THIS CONTRACT. EACH BIDDER MUST FURNISH A LISTING OF SIMILAR CONTRACTS WHICH HE IS PERFORMING OR HAS PERFORMED DURING THE PAST YEAR, SETTING FORTH THE NATURE AND EXTENT THEREOF, AND SHALL FURTHER FURNISH SUCH ADDITIONAL INFORMATION AND/OR PROOF COVERING HIS QUALIFICATIONS AS MAY BE REQUESTED BY THE DISTRICT. CONTRACTOR'S PREMISES WILL BE SUBJECT TO INSPECTION, IF NECESSARY, TO DETERMINE CONTRACTOR'S ABILITY TO PERFORM SATISFACTORILY UNDER THIS CONTRACT. NO CONTRACT WILL BE AWARDED TO ANY BIDDER WHO, AS DETERMINED BY THE DISTRICT, IS NOT QUALIFIED TO PERFORM SATISFACTORY SERVICE DUE TO UNFAVORABLE RECORD OF PERFORMANCE UNDER PREVIOUS GOVERNMENT CONTRACTS, INADEQUATELY PREPARED AS TO EXPERIENCE, OR LACKS THE NECESSARY CAPITAL, ORGANIZATION, AND PERSONNEL TO CONDUCT AND COMPLETE THE SERVICES IN STRICT ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS CONTRACT.'

AT THE TIME THE INVITATION WAS ISSUED, THE CAPABILITIES OF FEDERAL REPORTING SERVICES WERE UNKNOWN TO D.C. AS CONTEMPLATED BY THE QUOTED INVITATION PROVISION, YOUR FIRM WAS PERMITTED TO DEMONSTRATE ITS CAPABILITIES TO THE PROCURING AGENCY ON MARCH 23, 1967. THE TEST RESULTS OF THAT DEMONSTRATION WERE UNSATISFACTORY. HOWEVER, BECAUSE IT WAS FELT THAT THE STRANGENESS OF THE SURROUNDINGS MAY HAVE HINDERED YOUR TRANSCRIBER, A SECOND OPPORTUNITY TO QUALIFY WAS EXTENDED TO YOU OVER THE WEEKEND OF MARCH 25-27, AND NINE DICTATION MACHINE TAPES WERE GIVEN TO YOUR EMPLOYEE FOR TRANSCRIPTION IN YOUR OWN OFFICES AND ON YOUR OWN MACHINES. THE LAST TEST SHOWED THAT THE TRANSCRIPTION CONTAINED NUMEROUS DEFICIENCIES, SUCH AS ERRONEOUS NAMES, MISSPELLED WORDS, IMPROPER PUNCTUATION, WORD SUBSTITUTIONS AND OMISSIONS. SINCE THE QUALITY OF YOUR WORK FELL FAR SHORT OF WHAT WAS EXPECTED OF A RESPONSIBLE BIDDER UNDER THE INVITATION, THE PROCURING AGENCY DETERMINED THAT FEDERAL REPORTING SERVICES WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR.

UPON REVIEW OF THE RECORD BEFORE US, WE FIND NO BASIS TO DISAGREE WITH THE ACTION TAKEN WITH RESPECT TO YOUR BID. IN THIS REGARD, PARAGRAPH 12 OF THE INSTRUCTIONS TO BIDDERS PROVIDED:

"THE CONTRACT WILL BE AWARDED THE LOWEST RESPONSIBLE BIDDER COMPLYING WITH ALL THE PROVISIONS OF THE INVITATION, PROVIDED THE BID PRICE IS REASONABLE AND IT IS TO THE INTEREST OF THE DISTRICT TO ACCEPT IT. THE PROCUREMENT OFFICER RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE ANY INFORMALITY IN BIDS RECEIVED WHENEVER SUCH REJECTION OR WAIVER IS IN THE INTEREST OF THE DISTRICT. THE PROCUREMENT OFFICER ALSO RESERVES THE RIGHT TO REJECT THE BID OF A BIDDER WHO HAS PREVIOUSLY FAILED TO PERFORM PROPERLY OR COMPLETE ON TIME CONTRACTS OF A SIMILAR NATURE, OR A BID OF A BIDDER WHO INVESTIGATION SHOWS IS NOT IN A POSITION TO PERFORM THE CONTRACT * * *.'

ONE OF THE SIGNIFICANT FACTORS IN DETERMINING THE RESPONSIBILITY OF A BIDDER IS HIS APPARENT ABILITY TO PERFORM IN ACCORDANCE WITH THE ADVERTISED REQUIREMENTS. SEE O-BRIEN V. CARNEY 6 F.SUPP. 761. SUCH ABILITY TO PERFORM IS FOR DETERMINATION PRIMARILY BY THE CONTRACTING AGENCY AND ABSENT A SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS THEREFOR, WE WILL NOT QUESTION THE VALIDITY OF A DETERMINATION OF NONRESPONSIBILITY. 37 COMP. GEN. 430, 435; 39 ID. 705.

THE INVITATION DID NOT CONTAIN ANY PROVISION RESPECTING PREFERENCE TO SMALL BUSINESS CONCERNS; NEITHER DID IT CONTEMPLATE AN AWARD TO SUCH A CONCERN NOTWITHSTANDING ITS DEMONSTRATED FAILURE TO QUALIFY AS A RESPONSIBLE PROSPECTIVE CONTRACTOR. HENCE, THE FACT THAT YOU WERE A SMALL BUSINESS CONCERN DOES NOT, STANDING ALONE, OVERCOME YOUR INELIGIBILITY AS A CONTRACTOR UNDER THIS INVITATION.

CONCERNING YOUR COSTS TO PREPARE FOR CONTRACT PERFORMANCE, IT IS FUNDAMENTAL THAT A CONTRACT MUST BE IN EXISTENCE BEFORE ANY OBLIGATION CAN ARISE UNDER IT. NO CONTRACT CAME INTO BEING BETWEEN D.C. AND FEDERAL REPORTING SERVICES; HENCE, YOUR ANTICIPATORY EXPENSES ARE NOT RELEVANT TO THE INSTANT PROTEST. ACCORDINGLY, YOUR PROTEST IS DENIED.