B-163039, JAN. 25, 1968

B-163039: Jan 25, 1968

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A LOW BIDDER WHO HAD NOT PERFORMED IN THE VICINITY OF THE PROPOSED CONTRACT BUT WHO WAS DETERMINED TO BE RESPONSIBLE ON BASIS THAT SATISFACTORY ORGANIZATION COULD BE ESTABLISHED IN REQUIRED PERFORMANCE AREA AND WHO WAS ISSUED SBA CERTIFICATE OF COMPETENCY MUST BE REGARDED AS HAVING BEEN PROPERLY AWARDED CONTRACT AND NO BASIS IS FOUND FOR OBJECTION TO AWARD. ALFANO: REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 2 AND 14. THE INVITATION WAS ISSUED ON SEPTEMBER 18. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND ON OPENING DATE. WERE DISCLOSED AS FOLLOWS: BIDDER BID ITEM NO. 1 UNITED STATES BUILDING MAINTENANCE CO. WAS DETERMINED TO BE TECHNICALLY QUALIFIED TO PERFORM THE WORK AND WAS FOUND TO HAVE A SATISFACTORY RECORD OF PAST PERFORMANCE.

B-163039, JAN. 25, 1968

BIDDERS - RESPONSIBILITY - GEOGRAPHICAL RESTRICTION DECISION DENYING PROTEST OF EMPIRE CLEANING, INC., AGAINST AWARD TO U.S. BUILDING MAINTENANCE ., INC., FOR JANITORIAL SERVICE AT BOSTON NAVAL SHIPYARD. A LOW BIDDER WHO HAD NOT PERFORMED IN THE VICINITY OF THE PROPOSED CONTRACT BUT WHO WAS DETERMINED TO BE RESPONSIBLE ON BASIS THAT SATISFACTORY ORGANIZATION COULD BE ESTABLISHED IN REQUIRED PERFORMANCE AREA AND WHO WAS ISSUED SBA CERTIFICATE OF COMPETENCY MUST BE REGARDED AS HAVING BEEN PROPERLY AWARDED CONTRACT AND NO BASIS IS FOUND FOR OBJECTION TO AWARD.

TO MR. DOMENICO J. ALFANO:

REFERENCE IS MADE TO YOUR LETTERS OF DECEMBER 2 AND 14, 1967, PROTESTING FOR EMPIRE CLEANING, INC., AGAINST AWARD OF CONTRACT NO. N62464-68-C-0180 TO UNITED STATES BUILDING MAINTENANCE CO., INC., COVERING JANITORIAL SERVICES AT VARIOUS BUILDINGS OF THE BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS.

THE INVITATION WAS ISSUED ON SEPTEMBER 18, 1967, TO LOCAL FIRMS AND APPROXIMATELY FIVE OUT-OF-STATE FIRMS. TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND ON OPENING DATE, OCTOBER 11, 1967, WERE DISCLOSED AS FOLLOWS:

BIDDER BID ITEM NO. 1

UNITED STATES BUILDING MAINTENANCE

CO., INC., WAUKEGAN, ILLINOIS $282,000.00

EMPIRE CLEANING, INC., EAST

BOSTON, MASSACHUSETTS 308,222.76

AFTER A PREAWARD SURVEY BY THE PROCURING AGENCY, THE LOW BIDDER, UNITED STATES BUILDING MAINTENANCE, WAS DETERMINED TO BE TECHNICALLY QUALIFIED TO PERFORM THE WORK AND WAS FOUND TO HAVE A SATISFACTORY RECORD OF PAST PERFORMANCE. ALSO, ON NOVEMBER 30, 1967, THE SMALL BUSINESS ADMINISTRATION CERTIFIED THAT UNITED STATES BUILDING MAINTENANCE WAS COMPETENT AS TO CAPACITY AND CREDIT. SINCE UNITED STATES BUILDING MAINTENANCE MET THE MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS AS SET OUT IN PARAGRAPH 1-903 OF THE ARMED SERVICES PROCUREMENT REGULATION, AWARD OF THE CONTRACT WAS MADE TO THAT BIDDER.

YOU PROTEST AGAINST SUCH AWARD BECAUSE UNITED STATES BUILDING MAINTENANCE WAS NOT RESPONSIVE TO PARAGRAPH 1.3.2 OF THE SPECIFICATIONS WHICH STATED:

"COMPETENCY OF BIDDERS. BIDS WILL BE CONSIDERED ONLY FROM BIDDERS WHO ARE, IN THE JUDGMENT OF THE CONTRACTING OFFICER, FINANCIALLY RESPONSIBLE AND ABLE TO SHOW THAT THEY HAVE SATISFACTORILY PERFORMED JANITORIAL SERVICES WITHIN THE PAST TWO YEARS IN THE GENERAL VICINITY OF THE BOSTON AREA OF THE SIZE AND SCOPE OF THAT REQUIRED BY THIS SPECIFICATION, AND THAT THEY HAVE AVAILABLE UPON THEIR DIRECT EMPLOYMENT AND SUPERVISION THE NECESSARY ORGANIZATION AND EQUIPMENT LOCATED SUFFICIENTLY NEARBY TO PROPERLY FULFILL ALL OF THE SERVICES AND CONDITIONS REQUIRED UNDER THIS SPECIFICATION.'

YOU CONTEND THAT UNITED STATES BUILDING MAINTENANCE SHOULD HAVE BEEN DISQUALIFIED SINCE IT IS AN OUT-OF-STATE CONTRACTOR.

THE REQUIREMENT THAT A CONTRACTOR BE LOCATED IN A GIVEN AREA IS A MATTER OF RESPONSIBILITY RATHER THAN OF RESPONSIVENESS AND, THEREFORE, THE FACT THAT AN OTHERWISE ACCEPTABLE BIDDER MAY NOT HAVE THE LOCAL FACILITIES AVAILABLE AT THE TIME OF BID OPENING, OR EVEN AT THE TIME OF AWARD, WOULD NOT JUSTIFY REJECTION OF HIS BID. B-146323, SEPTEMBER 18, 1961. OUR OFFICE HAS RECOGNIZED THE RIGHT OF CONTRACTING AGENCIES TO RESTRICT CONTRACTS TO BIDDERS WITHIN PARTICULAR GEOGRAPHICAL AREAS WHEN THE CIRCUMSTANCES HAVE BEEN APPROPRIATE. B-150703, FEBRUARY 15, 1963. WHEN BIDDERS OUTSIDE THE METROPOLITAN WASHINGTON AREA PROPOSED EITHER TO SET UP FACILITIES IN OR TO UTILIZE THE PLANT OF ANOTHER COMPANY LOCATED WITHIN THE PRESCRIBED METROPOLITAN AREA, OUR OFFICE HAS INDICATED THAT THE BIDS SHOULD NOT BE REJECTED WHEN THE BIDDERS WERE OTHERWISE ACCEPTABLE. 147728, JANUARY 31, 1962; B-146323, SEPTEMBER 18, 1961; B-160571, JANUARY 4, 1967.

IT IS REPORTED BY THE PROCURING AGENCY THAT THE EXPERIENCE REQUIREMENT OF PARAGRAPH 1.3.2 WAS CONSIDERED SATISFIED BY UNITED STATES BUILDING MAINTENANCE INASMUCH AS THAT BIDDER COULD REASONABLY ESTABLISH A SATISFACTORY ORGANIZATION IN THE BOSTON AREA CONFORMING TO THE REQUIREMENTS OF THE CONTRACT SPECIFICATIONS. IN THIS RESPECT, THE DETERMINATION OF A BIDDER'S RESPONSIBILITY IS PRIMARILY WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY SUBJECT, IN THE CASE OF A SMALL BUSINESS BIDDER, TO THE CERTIFICATE OF COMPETENCY JURISDICTION OF THE SMALL BUSINESS ADMINISTRATION. WITH REGARD TO EXPERIENCE QUALIFICATION CLAUSES SUCH AS HERE INVOLVED, WE STATED AT 45 COMP. GEN. 4, 7, AS FOLLOWS:

"RESPONSIBILITY HAS BEEN DEFINED AS INCLUDING, AMONG OTHER THINGS, ORGANIZATION, TECHNICAL EXPERIENCE, KNOWLEDGE, SKILLS, -KNOW-HOW,- TECHNICAL EQUIPMENT, AND FACILITIES. 38 COMP. GEN. 864. WHILE WE HAVE HELD THAT CONSIDERATION FOR THE AWARD OF A CONTRACT MAY BE LIMITED, WHERE THE INTERESTS OF THE GOVERNMENT WOULD BE SERVED THEREBY, TO THOSE BIDDERS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD WHERE THE BIDDING CONDITIONS SO PROVIDE, 37 COMP. GEN. 196, ID. 420, WE HAVE ALSO HELD THAT THE PURPOSE OF EXPERIENCE QUALIFICATION CLAUSES SUCH AS IN THE SUBJECT INVITATION IS TO FACILITATE THE DETERMINATION OF RESPONSIBILITY BY THE CONTRACTING OFFICER. 37 COMP. GEN. 420. HOWEVER, IT IS BASICALLY THE POSITION OF OUR OFFICE THAT THE BIDS OF RESPONSIBLE BIDDERS MAY NOT BE REJECTED MERELY FOR FAILURE TO MEET THE LITERAL REQUIREMENTS OF SUCH PROVISIONS, BUT THAT WHERE THERE IS ANY REASONABLE GROUND FOR DOUBT THERE MUST BE A SPECIFIC DETERMINATION OF NONRESPONSIBILITY, BASED UPON CONSIDERATION OF THE QUALIFICATIONS OF THE PARTICULAR BIDDER. SEE 39 COMP. GEN. 173 AND CASES THERE CITED. AS WAS STATED AT PAGE 178 OF THE FOREGOING DECISION, -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.- IN OTHER WORDS, SINCE THE EXPERIENCE REQUIREMENTS STATED IN THE -CAUTION TO BIDDERS' CLAUSE OF THE PRESENT INVITATION GO TO MATTERS OF RESPONSIBILITY, AS DEFINED HERETOFORE, THE LORAL BID MAY NOT BE REJECTED MERELY BECAUSE IT IS NONRESPONSIVE TO SUCH CLAUSE. * * *"

IN VIEW OF THE FOREGOING AND THE RECORD BEFORE US, THERE IS NO LEGAL BASIS TO OBJECT TO THE AWARD MADE TO UNITED STATES BUILDING MAINTENANCE CO., INC. YOUR PROTEST IS THEREFORE DENIED.