B-164421, AUG. 22, 1968

B-164421: Aug 22, 1968

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INCORPORATED: REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 14. SIXTEEN FIRMS WERE FURNISHED INVITATIONS TO BID. SHIPSHAPE WAS THE APPARENT LOW BIDDER AND THE CONTRACTING OFFICER OBTAINED INFORMATION ON THE RESPONSIBILITY OF THAT FIRM TO PERFORM THE SERVICES AT LANGLEY AIR BASE. THE CONTRACTING OFFICER WAS UNABLE TO AFFIRMATIVELY FIND SHIPSHAPE TO BE A RESPONSIBLE BIDDER AND MADE AWARD TO THE OTHER BIDDER AFTER FINDING THAT FIRM RESPONSIBLE. THAT REGULATION STATES FURTHER: "A PROSPECTIVE CONTRACTOR MUST DEMONSTRATE AFFIRMATIVELY HIS RESPONSIBILITY * * * THE CONTRACTING OFFICER SHALL MAKE A DETERMINATION OF NONRESPONSIBILITY IF * * * THE INFORMATION THUS OBTAINED DOES NOT INDICATE CLEARLY THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE.'.

B-164421, AUG. 22, 1968

TO SHIPSHAPE DISPOSAL, INCORPORATED:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 14, 1968, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS F44600-68-B 0604 TO SCHNEIDER'S DISPOSAL SERVICE, INCORPORATED, FOR REFUSE COLLECTION AT LANGLEY AIR FORCE BASE, VIRGINIA.

THAT INVITATION SOLICITED BIDS FOR MATERIALS AND SERVICES TO PERFORM REFUSE COLLECTION AND DISPOSAL AT LANGLEY AIR BASE, FOR THE AIR FORCE AND THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION. SIXTEEN FIRMS WERE FURNISHED INVITATIONS TO BID, BUT ONLY SHIPSHAPE AND SCHNEIDER BID IN THE RESPECTIVE AMOUNTS OF $152,388 AND $171,072. SHIPSHAPE WAS THE APPARENT LOW BIDDER AND THE CONTRACTING OFFICER OBTAINED INFORMATION ON THE RESPONSIBILITY OF THAT FIRM TO PERFORM THE SERVICES AT LANGLEY AIR BASE. BASED UPON THE PAST RECORD OF UNSATISFACTORY PERFORMANCE UNDER AIR FORCE AND NASA CONTRACTS, THE CONTRACTING OFFICER FOUND SHIPSHAPE HAD FAILED TO APPLY THE NECESSARY TENACITY TO ACCOMPLISH SATISFACTORY SERVICES UNDER PRIOR CONTRACTS. FURTHER, BASED UPON SHIPSHAPE'S PAST FAILURE TO PAY ITS EMPLOYEES IN COMPLIANCE WITH THE SERVICE CONTRACT ACT AND THE CONTRACT WORK HOURS STANDARDS ACT, THE CONTRACTING OFFICER DETERMINED THE FIRM DID NOT MEET THE REQUIREMENTS FOR A SATISFACTORY RECORD OF INTEGRITY. ACCORDINGLY, THE CONTRACTING OFFICER WAS UNABLE TO AFFIRMATIVELY FIND SHIPSHAPE TO BE A RESPONSIBLE BIDDER AND MADE AWARD TO THE OTHER BIDDER AFTER FINDING THAT FIRM RESPONSIBLE. SHIPSHAPE PROTESTED THIS ACTION AND REQUESTED A REVIEW BY AN INDEPENDENT BOARD, PRESUMABLY THE SMALL BUSINESS ADMINISTRATION (SBA).

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-902 REQUIRES THAT CONTRACTS SHALL BE AWARDED TO RESPONSIBLE PROSPECTIVE CONTRACTORS ONLY. THAT REGULATION STATES FURTHER: "A PROSPECTIVE CONTRACTOR MUST DEMONSTRATE AFFIRMATIVELY HIS RESPONSIBILITY * * * THE CONTRACTING OFFICER SHALL MAKE A DETERMINATION OF NONRESPONSIBILITY IF * * * THE INFORMATION THUS OBTAINED DOES NOT INDICATE CLEARLY THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE.'

WE HAVE CONSISTENTLY HELD THAT IT IS THE DUTY OF THE CONTRACTING OFFICER TO DETERMINE TO HIS SATISFACTION THE RESPONSIBILITY OF A BIDDER. 37 COMP. GEN. 430; 38 ID. 248; 39 ID. 468; 48 ID. 228. SUCH A DETERMINATION WILL NOT BE QUESTIONED BY THIS OFFICE IN THE ABSENCE OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 36 COMP. GEN. 42; 37 ID. 430; 37 ID. 798; 38 ID. 131; 38 ID. 778. THE RECORD OF SHIPSHAPE UNDER CONTRACTS NASI-7208 AND AF44 (600/-4609, BOTH PRIOR CONTRACTS AT LANGLEY, PRESENTS A SUFFICIENT BASIS FOR THE CONCLUSION OF THE CONTRACTING OFFICER THAT AN AFFIRMATIVE DETERMINATION COULD NOT BE MADE INASMUCH AS THE CONTRACTOR HAD FAILED TO APPLY THE NECESSARY TENACITY TO ACCOMPLISH SATISFACTORY SERVICES. LIKEWISE THE RECORD OF LABOR VIOLATIONS, WHICH LED TO THE NEGATIVE FINDING RESPECTING INTEGRITY, IS WELL DOCUMENTED AND UNCONTESTED.

WHILE NORMALLY, WHEN A BID OF A SMALL BUSINESS CONCERN IS TO BE REJECTED FOR NONRESPONSIBILITY, THE MATTER MUST BE REFERRED TO THE SBA, ASPR 1- 903.1 (III) PROVIDES IN PART:

"PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB, SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY AND IN THE CASE OF SMALL BUSINESS CONCERNS, SHALL NOT REQUIRE SUBMISSION OF THE CASE TO THE SMALL BUSINESS ADMINISTRATION.'

ACCORDINGLY, YOUR PROTEST OF CONTRACT AWARD TO SCHNEIDER'S DISPOSAL SERVICE MUST BE DENIED.