B-165232, OCT. 8, 1968

B-165232: Oct 8, 1968

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 9. BIDS WERE OPENED AT 2:00 P.M. THE LOW BID RECEIVED WAS FROM TOM GREEN CONTRACTING COMPANY (TOM GREEN). ADVISED THE CONTRACTING OFFICER THAT TOM GREEN WAS NOT A QUALIFIED BIDDER AS STIPULATED IN PARAGRAPH 1 OF SPECIAL CONDITIONS OF THE INVITATION AND THAT PROTEST OF AWARD TO TOM GREEN WOULD BE MADE. PARAGRAPH 1 OF SPECIAL CONDITIONS OF THE INVITATION IN THAT A MAJOR PORTION OF THE CONTRACT REQUIRED CONTAINERIZED SERVICE AND THAT TOM GREEN WAS NOT A REGULAR. QUALIFICATION OF BIDDERS: BIDS WILL BE CONSIDERED ONLY FROM BIDDERS WHO ARE REGULARLY ESTABLISHED IN THE BUSINESS CALLED FOR AND WHO IN THE JUDGMENT OF THE CONTRACTING OFFICER ARE FINANCIALLY RESPONSIBLE AND ABLE TO SHOW EVIDENCE OF THEIR RELIABILITY.

B-165232, OCT. 8, 1968

TO W.B.W. SERVICES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 9, 1968, PROTESTING THE PROPOSED AWARD TO TOM GREEN CONTRACTING COMPANY UNDER INVITATION FOR BIDS NO. 69-14, FOR GARBAGE REMOVAL SERVICES, VETERANS ADMINISTRATION HOSPITAL, TUSKEGEE, ALABAMA.

BIDS WERE OPENED AT 2:00 P.M. ON AUGUST 15, 1968, AND THE LOW BID RECEIVED WAS FROM TOM GREEN CONTRACTING COMPANY (TOM GREEN). APPROXIMATELY 3:30 P.M., THE SAME DAY, W.B.W. SERVICES, INCORPORATED (WBW), ADVISED THE CONTRACTING OFFICER THAT TOM GREEN WAS NOT A QUALIFIED BIDDER AS STIPULATED IN PARAGRAPH 1 OF SPECIAL CONDITIONS OF THE INVITATION AND THAT PROTEST OF AWARD TO TOM GREEN WOULD BE MADE. LETTER DATED AUGUST 16, 1968, WBW PROTESTED TOM GREEN DID NOT MEET THE CRITERIA SET FORTH ON PAGE 8, PARAGRAPH 1 OF SPECIAL CONDITIONS OF THE INVITATION IN THAT A MAJOR PORTION OF THE CONTRACT REQUIRED CONTAINERIZED SERVICE AND THAT TOM GREEN WAS NOT A REGULAR, ESTABLISHED COMPANY IN THAT TYPE SERVICE. ON SEPTEMBER 6, 1968, THE CONTRACTING OFFICER ADVISED WBW THAT HE HAD DETERMINED TOM GREEN TO BE A QUALIFIED BIDDER AND DENIED WBW'S PROTEST.

THE CRUX OF THE PROTEST CENTERS ON THE QUALIFICATIONS SET OUT IN PARAGRAPH 1, PAGE 8 OF INVITATION, SPECIAL CONDITIONS, WHICH STATES:

"1. QUALIFICATION OF BIDDERS: BIDS WILL BE CONSIDERED ONLY FROM BIDDERS WHO ARE REGULARLY ESTABLISHED IN THE BUSINESS CALLED FOR AND WHO IN THE JUDGMENT OF THE CONTRACTING OFFICER ARE FINANCIALLY RESPONSIBLE AND ABLE TO SHOW EVIDENCE OF THEIR RELIABILITY, ABILITY, EXPERIENCE, EQUIPMENT, FACILITIES AND PERSONNEL DIRECTLY EMPLOYED OR SUPERVISED BY THEM TO RENDER PROMPT AND SATISFACTORY SERVICE.' WBW ASSERTS THAT TOM GREEN WAS NOT A REGULAR BUSINESS FOR THE PURPOSES OF TRASH AND GARBAGE REMOVAL SERVICE INASMUCH AS: "* * * MR. GREEN HAD MADE A STATEMENT THAT HE DID NOT HAVE THE EQUIPMENT TO DO THE JOB. HE STATED THIS AT THE BID OPENING AND AT THE SAME TIME DISCUSSED THIS WITH AN EQUIPMENT COMPANY * * * AND FURTHER STATED THAT THIS JOB WOULD ONLY BE A SIDELINE.' THE CONTRACTING OFFICER DETERMINED TOM GREEN WAS QUALIFIED ON THE BASIS OF PAST SATISFACTORY SERVICE UNDER FOUR TRASH REMOVAL CONTRACTS AND IN VIEW OF THE EQUIPMENT LISTING FOR THIS CONTRACT WHICH WAS SUBMITTED BY TOM GREEN.

A REVIEW OF THE PAST CONTRACTS PERFORMED BY TOM GREEN TOGETHER WITH THE STATEMENTS ATTRIBUTED TO TOM GREEN DO IN FACT RAISE A QUESTION WHETHER THAT BIDDER WAS A REGULARLY ESTABLISHED BUSINESS IN THIS FIELD IF A STRICT AND NARROW INTERPRETATION IS APPLIED. HOWEVER, AS THIS OFFICE HAS STATED IN THE PAST WE DO NOT BELIEVE THE INTERESTS OF THE GOVERNMENT NOR FAIRNESS TO BIDDERS WOULD BE BEST SERVED BY APPLYING A STRICT LITERAL INTERPRETATION OF SUCH A CLAUSE TO EXCLUDE OTHERWISE QUALIFIED AND RESPONSIBLE CONTRACTORS. IN OUR DECISION, B-164706, AUGUST 27, 1968, INVOLVING THE IDENTICAL CLAUSE, WE REJECTED SUCH A RESTRICTIVE INTERPRETATION STATING IN PART:

"WE HAVE UPHELD THE VALIDITY OF INVITATION PROVISIONS LIMITING AWARD TO BIDDERS DEMONSTRATING SATISFACTION OF REASONABLE EXPERIENCE REQUIREMENTS AS BEING NOT INCONSISTENT WITH THE PURPOSES BEHIND THE STATUTES GOVERNING PUBLIC PROCUREMENT, ONE OF WHICH IS TO ASSURE FULL AND FREE COMPETITION FOR THE AWARD AMONG QUALIFIED COMPETITORS. 37 COMP. GEN. 196, ID. 420. BUT WHEN THE PROCURING AGENCY ITSELF LATER DETERMINES THAT A BIDDER NOT MEETING THE LITERAL WORDING OF THE EXPERIENCE REQUIREMENT IS NEVERTHELESS RESPONSIBLE, OUR OFFICE HAS HELD THAT THE ENFORCEMENT OF THE EXPERIENCE REQUIREMENT IN SUCH A CASE WOULD DO INJURY TO THE CONCEPT OF FULL AND FREE COMPETITION REQUIRED BY STATUTE AND HAS ACQUIESCED IN THAT INTERPRETATION OF THE SOLICITATION WHICH PRECLUDES ITS BEING STRUCK DOWN FOR RESTRICTIVENESS. B-159607, SEPTEMBER 14, 1966; B-157149, FEBRUARY 16, 1966; B-156999, OCTOBER 1, 1966. THE RATIONALE OF THIS POSITION IS THAT THE DETERMINATION OF RESPONSIBILITY IS A FACTUAL AND NOT A LEGAL DETERMINATION. 45 COMP. GEN. 4; 39 ID. 173.'

ACCORDINGLY, THIS OFFICE WILL NOT OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION THAT TOM GREEN WAS QUALIFIED IN THE ABSENCE OF EVIDENCE THAT THE DETERMINATION WAS ARBITRARY OR CAPRICIOUS. THEREFORE, YOUR PROTEST MUST BE DENIED.