B-161770, NOV. 21, 1967

B-161770: Nov 21, 1967

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A DETERMINATION THAT A CONTRACTOR IS QUALIFIED TO PERFORM IS A DETERMINATION WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY AND WILL BE QUESTIONED BY THE COMPTROLLER GENERAL ONLY UPON A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION. A PROTESTANT WHO CONTENDS THAT A PROCUREMENT SHOULD HAVE BEEN BY FORMAL ADVERTISING RATHER THAN BY NEGOTIATION WHEN RECORD SHOWS THAT PROTESTANT HAD BEEN AWARDED A NEGOTIATED CONTRACT FOR THE SAME SERVICES THE PRIOR YEAR HAS NOT PRESENTED A VALID ARGUMENT. ALTHOUGH THE AUTHORITY CITED FOR NEGOTIATION IN A REQUEST FOR PROPOSALS UNDER 100 PERCENT SMALL BUSINESS SET ASIDE PROCUREMENT WAS NOT CORRECT. THE INADVERTENCE WAS NOT PREJUDICIAL TO ANY OFFERORS AND THEREFORE.

B-161770, NOV. 21, 1967

BIDS - NEGOTIATION - PROPRIETY DECISION TO METROPOLITAN SECURITY SERVICES, INC. AGAINST AWARD TO LOW OFFEROR, HARRISON SECURITY SERVICE, INC. BY ARMY FOR GUARD SERVICES AT FORT RUCKER, ALA. UNDER TOTAL SMALL BUSINESS SET ASIDE PROCUREMENT. A DETERMINATION THAT A CONTRACTOR IS QUALIFIED TO PERFORM IS A DETERMINATION WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY AND WILL BE QUESTIONED BY THE COMPTROLLER GENERAL ONLY UPON A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE DETERMINATION. A PROTESTANT WHO CONTENDS THAT A PROCUREMENT SHOULD HAVE BEEN BY FORMAL ADVERTISING RATHER THAN BY NEGOTIATION WHEN RECORD SHOWS THAT PROTESTANT HAD BEEN AWARDED A NEGOTIATED CONTRACT FOR THE SAME SERVICES THE PRIOR YEAR HAS NOT PRESENTED A VALID ARGUMENT. ALTHOUGH THE AUTHORITY CITED FOR NEGOTIATION IN A REQUEST FOR PROPOSALS UNDER 100 PERCENT SMALL BUSINESS SET ASIDE PROCUREMENT WAS NOT CORRECT, THE INADVERTENCE WAS NOT PREJUDICIAL TO ANY OFFERORS AND THEREFORE, PROTEST THAT NEGOTIATION WAS IMPROPER MUST BE DENIED.

TO METROPOLITAN SECURITY SERVICES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 12, 1967, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST THE AWARD MADE JUNE 9, 1967, TO THE LOW OFFEROR, HARRISON SECURITY SERVICES, INC., UNDER RFP NO. DABC01-67 R-0063, A TOTAL SMALL BUSINESS SET ASIDE ISSUED APRIL 7, 1963, BY THE DEPARTMENT OF THE ARMY FOR FISCAL YEAR 1968 PROTECTIVE GUARD SERVICES AT FORT RUCKER, ALABAMA, WITH MAY 8, 1967, THE DATE SET FOR RECEIPT OF OFFERS. THE RFP CITED AS THE AUTHORITY FOR NEGOTIATION OF PROCUREMENT 10 U.S.C. 2304 (A) (10), AND WAS ISSUED ON THE BASIS OF THE CONTRACTING OFFICER'S DETERMINATION THAT IT WAS IMPOSSIBLE TO DRAFT FOR SOLICITATION OF BIDS EXACT REQUIREMENTS FOR PERSONNEL AND EQUIPMENT.

HARRISON SECURITY SERVICES, INC., WAS ORIGINALLY INCORPORATED ON FEBRUARY 19, 1967, IN THE STATE OF MISSISSIPPI AS HARRISON DETECTIVES, INC., AND UNDER ITS CHARTER WAS AUTHORIZED TO ENGAGE IN BOTH INVESTIGATIVE AND PROTECTIVE ACTIVITIES. ITS CHARTER WAS AMENDED MAY 5, 1967 (3 DAYS BEFORE THE DATE SET FOR RECEIPT OF OFFERS) CHANGING ITS NAME TO HARRISON SECURITY SERVICES, INC., AND REMOVING ITS AUTHORITY TO ENGAGE IN INVESTIGATIVE ACTIVITIES. ON SUCH BASIS IT CERTIFIED IN ITS OFFER THAT IT WAS A PROTECTIVE AGENCY AND NOT A DETECTIVE AGENCY WITHIN THE PURVIEW OF THE PROHIBITION AGAINST THE GOVERNMENT CONTRACTING WITH DETECTIVE AGENCIES CONTAINED IN THE ANTI PINKERTON STATUTE, 5 U.S.C. 3108. IN THE LIGHT OF OUR DECISIONS 41 COMP. GEN. 819 AND B-156424, JULY 22, 1965, WE BELIEVE THAT SUCH CERTIFICATION WAS JUSTIFIED AND THAT AWARD TO THE CORPORATION DID NOT VIOLATE THE CITED STATUTE.

WITH RESPECT TO YOUR ASSERTION THAT HARRISON SECURITY SERVICES, INC., IS NOT A RESPONSIBLE BIDDER, AFTER FULL INVESTIGATION OF ITS QUALIFICATIONS, INCLUDING AN AUDIT BY THE DEFENSE CONTRACT AUDIT AGENCY, ATLANTA, THE CONTRACTING OFFICER, DETERMINED ON MAY 25, 1967, THAT HARRISON IS FULLY QUALIFIED TO PERFORM THE CONTRACT. THE DETERMINATION OF THE QUALIFICATIONS AND RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS PRIMARILY A FUNCTION OF THE CONTRACTING AGENCY, AND IS QUESTIONED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT ONLY UPON A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE ADMINISTRATIVE DETERMINATION. 43 COMP. GEN. 257, 262; 38 ID. 131, 133; 37 ID. 430, 435; CF. FRIEND V. LEE, 221 F.2D 96, 100. WE FIND NO SUCH BASIS FOR QUESTIONING THE RESPONSIBILITY OF HARRISON IN THE RECORD BEFORE US.

YOU NEXT CONTEND THAT THIS PROCUREMENT, HAVING BEEN UNDERTAKEN BY NEGOTIATION RATHER THAN FORMAL ADVERTISING, IS IN VIOLATION OF LAW AND IS THEREFORE NULL AND VOID. THE CRUX OF YOUR ARGUMENT IS THAT UNDER THE CIRCUMSTANCES HERE INVOLVED IT WAS NOT IN FACT IMPRACTICABLE TO OBTAIN COMPETITION AND THAT, THEREFORE, NEGOTIATION OF THIS PROCUREMENT WAS EXPRESSLY PROHIBITED BY 10 U.S.C. 2304 (A) WHICH GENERALLY REQUIRES THAT GOVERNMENT PROCUREMENTS BE MADE BY FORMAL ADVERTISING. IN THIS CONNECTION THE RECORD SHOWS THAT IN FORWARDING HIS "DETERMINATION AND FINDINGS" DATED MARCH 17, 1967, FOR APPROVAL BY HIGHER AUTHORITY OF THE PROPOSAL TO NEGOTIATE, THE CONTRACTING OFFICER POINTED OUT THAT THE CONTRACT FOR THE SAME SERVICES FOR THE PRIOR YEAR HAD BEEN NEGOTIATED ON THE SAME GROUNDS. INASMUCH AS WE ARE ADVISED THAT YOU WERE AWARDED THE CONTRACT FOR THAT YEAR, IT WOULD APPEAR THAT THE VALIDITY OF YOUR CONTRACT WAS DEPENDENT UPON EXACTLY THE SAME FACTORS AS ARE NOW URGED BY YOU AS GROUNDS FOR NULLIFYING THE PRESENT CONTRACT.

ASIDE FROM THIS, IT IS REPORTED THAT PRIOR TO ISSUANCE OF THE RFP IT WAS DETERMINED THAT THE PROCUREMENT WOULD BE NEGOTIATED AS A 100 PERCENT SMALL BUSINESS SET ASIDE UNDER 10 U.S.C. 2304 (A) (1) AND ASPR 3-201, BUT THAT THROUGH ADMINISTRATIVE ERROR, THE AUTHORITY CITED FOR NEGOTIATION WAS NOT CHANGED ON THE FACE OF THE RFP. IN OUR VIEW THIS INADVERTENCE WAS NOT PREJUDICIAL TO ANY OF THE OFFERORS, SINCE ALL PROSPECTIVE OFFERORS WERE COMPETING ON AN EQUAL BASIS AND THERE WAS NO ADVANTAGE GIVEN TO ANY OFFEROR. IN THE CIRCUMSTANCES WE CANNOT CONCLUDE THAT THE NEGOTIATING AUTHORITY WAS IMPROPERLY USED, AND YOUR PROTEST IS DENIED. THE DEPARTMENT OF THE ARMY REPORTS THAT EFFORTS WILL BE MADE TO DEVELOP SPECIFICATIONS TO PERMIT FORMAL ADVERTISING IN SUBSEQUENT SIMILAR PROCUREMENTS.