B-163839, JUL. 3, 1968

B-163839: Jul 3, 1968

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THE REFERENCED INVITATION WAS ISSUED ON SEPTEMBER 27. IT WAS REJECTED BY THE CONTRACTING OFFICER UPON HIS DETERMINATION THAT ON THE BASIS OF YOUR PERFORMANCE UNDER PRIOR CONTRACTS HE COULD NOT FIND YOU TO BE RESPONSIBLE TO PERFORM THE REQUIRED SERVICES. YOU CONTEND THAT YOU WERE NOT NOTIFIED WITH RESPECT TO CERTAIN ASPECTS OF PAST POOR PERFORMANCES NOW ALLEGED BY THE PROCURING ACTIVITY. THAT THERE IS NO SUBSTANTIAL BASIS FOR THE REJECTION OF YOUR LOW BID. IN DETERMINING WHETHER A PROSPECTIVE CONTRACTOR IS RESPONSIBLE TO PERFORM THE REQUIRED SERVICES. CONTRACTING OFFICERS ARE GUIDED BY THE RULES SET OUT IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). HE MUST SHOW THAT THE DELINQUENCIES WERE CAUSED BY CIRCUMSTANCES BEYOND HIS CONTROL.

B-163839, JUL. 3, 1968

TO SEABROOK TRANSFER AND STORAGE CO.:

WE REFER TO YOUR LETTERS DATED MARCH 18 AND MARCH 30, 1968, WITH ENCLOSURE, PROTESTING THE REJECTION OF YOUR LOW BID UNDER SCHEDULE III, ITEM 31, OF INVITATION FOR BIDS NO. N00612-68-B-0006, ISSUED BY THE U.S. NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA.

THE REFERENCED INVITATION WAS ISSUED ON SEPTEMBER 27, 1967, AND SCHEDULE III THEREUNDER SOLICITED BIDS FOR COMPLETE SERVICES FOR INTRA-CITY AND INTRA-AREA MOVING OF HOUSEHOLD GOODS OF MILITARY PERSONNEL IN THE CHARLESTON AREA. YOUR FIRM SUBMITTED THE LOWEST BID UNDER SCHEDULE III, BUT IT WAS REJECTED BY THE CONTRACTING OFFICER UPON HIS DETERMINATION THAT ON THE BASIS OF YOUR PERFORMANCE UNDER PRIOR CONTRACTS HE COULD NOT FIND YOU TO BE RESPONSIBLE TO PERFORM THE REQUIRED SERVICES. ESSENTIALLY, YOU CONTEND THAT YOU WERE NOT NOTIFIED WITH RESPECT TO CERTAIN ASPECTS OF PAST POOR PERFORMANCES NOW ALLEGED BY THE PROCURING ACTIVITY; THAT THERE IS NO SUBSTANTIAL BASIS FOR THE REJECTION OF YOUR LOW BID; AND THAT RACIAL DISCRIMINATION HAS BEEN PRACTICED AGAINST YOU IN THIS MATTER.

IN DETERMINING WHETHER A PROSPECTIVE CONTRACTOR IS RESPONSIBLE TO PERFORM THE REQUIRED SERVICES, CONTRACTING OFFICERS ARE GUIDED BY THE RULES SET OUT IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). IN THIS REGARD, ASPR 1-902 PERMITS PURCHASES TO BE MADE FROM AND CONTRACTS AWARDED TO RESPONSIBLE PROSPECTIVE CONTRACTORS, AND 1-904.1 REQUIRES AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY AS A PREREQUISITE TO AWARD OF ANY CONTRACT. THE ASPR ALSO PRESCRIBES CERTAIN MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS; SECTION 1-903.1 (III) REQUIRES A SATISFACTORY PERFORMANCE RECORD, AND WHERE A BIDDER'S PAST PERFORMANCE HAS BEEN UNSATISFACTORY, HE MUST SHOW THAT THE DELINQUENCIES WERE CAUSED BY CIRCUMSTANCES BEYOND HIS CONTROL. IN ADDITION, PAST UNSATISFACTORY PERFORMANCE DUE TO A FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB IS SUFFICIENT IN ITSELF TO JUSTIFY A FINDING OF NONRESPONSIBILITY. SEE B-157549, DECEMBER 21, 1965, B-157203, DECEMBER 29, 1965, AND 37 COMP. GEN. 798.

IN CASES SUCH AS THIS WHERE THE CONTRACTING OFFICER DETERMINES THAT A BIDDER LACKS SUFFICIENT TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB, THERE IS NO REGULATORY REQUIREMENT THAT BIDDERS MUST HAVE BEEN ADVISED OF THEIR POOR PERFORMANCE EITHER CONTEMPORANEOUS TO ITS OCCURRENCE OR PRIOR TO THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY. HOWEVER, WE HAVE CONSISTENTLY HELD THAT SUCH DETERMINATIONS OF NONRESPONSIBILITY MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE OF RECORD. 43 COMP. GEN. 387 AND 38 COMP. GEN. 778. ALSO, IN ANY SUBSEQUENT PROCUREMENT THE QUESTION OF RESPONSIBILITY MUST BE REDETERMINED ON THE BASIS OF A FIRM'S QUALIFICATIONS AND RECORD OF PERFORMANCE AT THAT TIME. 43 COMP. GEN. 228, 231.

THE RECORD BEFORE US ESTABLISHES THAT YOUR FIRM PERFORMED SIMILAR SERVICES FOR THE GOVERNMENT UNDER NAVY CONTRACT N612-325 AND AIR FORCE CONTRACT AF 38 (610/-2270, FOR THE PERIODS OF JANUARY 1965 THROUGH DECEMBER 1965, AND MAY 1966 THROUGH DECEMBER 1966, RESPECTIVELY. THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS FOUNDED UPON THE NUMEROUS COMPLAINTS OF UNSATISFACTORY PERFORMANCE ON FILE AND YOUR APPARENT FAILURE TO IMPROVE AFTER YOU HAD BEEN INFORMED BOTH VERBALLY AND IN WRITING OF MANY OF THESE COMPLAINTS, PARTICULARLY AFTER AUGUST 3, 1965, WHEN THE QUANTITY OF WORK ASSIGNED TO YOUR FIRM HAD BEEN SIGNIFICANTLY REDUCED. OF THE 372 ORDERS PLACED UNDER THE 1965 NAVY CONTRACT, THE RECORD INDICATES THAT 30 WERE DOCUMENTED AS UNSATISFACTORILY COMPLETED. FURTHER, NAVY REPORTS THAT NUMEROUS OTHER INSTANCES OF UNSATISFACTORY SERVICE WERE NOT DOCUMENTED SINCE DOCUMENTATION WAS MADE ONLY DURING THE LAST EIGHT MONTHS OF THE CONTRACT PERIOD AFTER IT BECAME APPARENT THAT YOUR FIRM HAD NOT TAKEN ADEQUATE CORRECTIVE ACTION IN RESPONSE TO PREVIOUS NOTICE OF DEFICIENT PERFORMANCE. BY WAY OF COMPARISON TO OTHER PAST AND PRESENT NAVY CONTRACTORS IT IS REPORTED THAT COMPLAINTS AGAINST OTHER CONTRACTORS HAVE BEEN SO INFREQUENT AND OF SUCH A MINOR NATURE THAT WRITTEN RECORDS HAVE NOT BEEN KEPT. WITH RESPECT TO YOUR PAST PERFORMANCE UNDER THE REFERENCED AIR FORCE CONTRACT IT IS REPORTED THAT 25 OF THE 166 ORDERS PLACED WERE DOCUMENTED AS UNSATISFACTORY AND IN MANY INSTANCES COMPLAINTS WERE NOT DOCUMENTED. THE AIR FORCE FURTHER REPORTS THAT COMPARATIVELY THERE HAVE BEEN VERY FEW, IF ANY, COMPLAINTS AGAINST OTHER CONTRACTORS.

IN THE INSTANT CASE, THE CONTRACTING OFFICER HAS PRESENTED TO THIS OFFICE VOLUMINOUS EVIDENCE UPON WHICH HIS DECISION WAS BASED, CONTAINING EXHIBITS TO SUPPORT THE CONCLUSION THAT PERFORMANCE OF YOUR NAVY CONTRACT FOR 1965 AND AIR FORCE CONTRACT FOR 1966 HAD BEEN UNSATISFACTORY. THERE ARE, FOR EXAMPLE, INSPECTION REPORTS OF UNSATISFACTORY SERVICE; MEMORANDA OF TELEPHONE CALLS TO YOUR FIRM REGARDING COMPLAINTS; COPIES OF LETTERS ADDRESSED TO YOUR FIRM REGARDING SPECIFIC COMPLAINTS OF SERVICEMEN; MEMORANDA OF MEETINGS BETWEEN A REPRESENTATIVE OF YOUR FIRM AND NAVY OFFICIALS CONCERNING YOUR POOR PERFORMANCE UNDER THE NAVY CONTRACT; AND INFORMATION PROVIDED BY HOMEOWNERS OF UNSATISFACTORY PERFORMANCE ON INDIVIDUAL PACKING, CRATING, AND MOVING ORDERS RELATIVE TO THE USE OF IMPROPER PACKING MATERIALS, PRACTICES, ETC.THERE IS ALSO EVIDENCE OF UNTIMELY PERFORMANCE ON A SIGNIFICANT NUMBER OF JOBS. THE CONTRACTING OFFICER ALSO STATES THAT NO FACTS WERE AVAILABLE TO INDICATE THAT YOUR PERFORMANCE WOULD HAVE SUBSTANTIALLY IMPROVED IF AN AWARD WERE MADE TO YOU.

IN VIEW OF THE ABOVE EVIDENCE THIS OFFICE FINDS NO REASON TO DISAGREE WITH THE CONTRACTING OFFICER'S DETERMINATION IN THIS CASE. SEE B 158373, MARCH 28, 1966. WITH RESPECT TO YOUR BELIEF THAT RACIAL DISCRIMINATION HAS BEEN PRACTICED AGAINST YOUR FIRM, YOU HAVE NOT PRESENTED ANY POSITIVE EVIDENCE TO SUPPORT THIS CONTENTION AND THE ABOVE-MENTIONED VOLUMINOUS RECORD OF YOUR RECENT PAST PERFORMANCES INDICATES TO US THAT THE CONTRACTING OFFICER BASED HIS DETERMINATION OF NONRESPONSIBILITY ON SUBSTANTIAL GROUNDS WHOLLY UNRELATED TO ANY SUCH DISCRIMINATION.