B-165689, JAN. 29, 1969

B-165689: Jan 29, 1969

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FRANK AND KAMPELMAN: THIS IS IN REPLY TO THE PROTEST OF NOVEMBER 21. ESSENTIALLY THE PROTEST IS MADE ON THE BASIS THAT THE LOW BIDDER'S FAILURE TO SUBMIT AN . IT IS YOUR POSITION THAT THE REQUIREMENT IN THE ABOVE QUOTED PROVISION FOR A STATEMENT OF THE "ORGANIZATION OF HIS WORK FORCE" GOES FAR BEYOND A MERE REQUEST FOR INFORMATION CONCERNING THE CAPACITY OF THE BIDDER. THE REQUIREMENT FOR A STATEMENT OF ORGANIZATION OF WORK FORCE IS IN NO WAY RELATED TO. YOUR LETTER OF JANUARY 21 ALSO STATES THAT THE LOW BID SHOULD BE REJECTED SINCE THE FIRM IS NOT RESPONSIBLE IN THAT IT "IS THE PRESENT CONTRACTOR FOR SIMILAR WORK BEING PERFORMED AT THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT BUILDING IN WASHINGTON.

B-165689, JAN. 29, 1969

TO STRASSER, SPIEGELBERG, FRIED, FRANK AND KAMPELMAN:

THIS IS IN REPLY TO THE PROTEST OF NOVEMBER 21, 1968, BY ADVANCE BUILDING MAINTENANCE COMPANY TO THE PROPOSED AWARD OF A CONTRACT FOR JANITORIAL SERVICES TO THE LOW BIDDER UNDER INVITATION FOR BIDS NO. GS 03B-12589, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 3, AND TO YOUR LETTER OF JANUARY 21, 1969, SUPPLEMENTING IT.

ESSENTIALLY THE PROTEST IS MADE ON THE BASIS THAT THE LOW BIDDER'S FAILURE TO SUBMIT AN ,OUTLINE OF WORK" REQUIRED BY THE INVITATION RENDERS ITS BID NONRESPONSIVE.

IN THIS CONNECTION THE INVITATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"OUTLINE OF WORK: EACH BIDDER SHALL SUBMIT WITH THE PROPOSAL AN OUTLINE OF HIS METHOD FOR THE EXECUTION OF THE CONTRACT INCLUDING THE ORGANIZATION OF HIS WORK FORCE AND THE ESTIMATED NUMBER OF MANHOURS TO BE USED DAILY, METHOD OF SUPERVISION OF WORK, THE NUMBER AND QUALIFICATIONS OF HIS SUPERVISORS, AND THE TYPE AND QUANTITIES OF EQUIPMENT, MATERIALS AND SUPPLIES TO BE USED. FAILURE TO COMPLY WITH THIS REQUIREMENT MAY BE CAUSE FOR REJECTION OF THE BID.'

SPECIFICALLY, IT IS YOUR POSITION THAT THE REQUIREMENT IN THE ABOVE QUOTED PROVISION FOR A STATEMENT OF THE "ORGANIZATION OF HIS WORK FORCE" GOES FAR BEYOND A MERE REQUEST FOR INFORMATION CONCERNING THE CAPACITY OF THE BIDDER. YOU STATE THAT THE PARAGRAPH REQUIRES MATERIAL INFORMATION AS TO THE PERFORMANCE OF THE REQUIRED WORK AS DISTINGUISHED FROM A REQUIREMENT FOR A STATEMENT OF NUMBER OF MANHOURS OR EQUIPMENT AVAILABLE FOR THE PERFORMANCE OF THE CONTRACT.

IN OUR OPINION, THE REQUIREMENT FOR A STATEMENT OF ORGANIZATION OF WORK FORCE IS IN NO WAY RELATED TO, AND THE STATEMENT FURNISHED WOULD NOT AFFECT, THE BIDDER'S OBLIGATION UPON ACCEPTANCE OF ITS BID TO PERFORM THE JANITORIAL SERVICES IN EXACT CONFORMITY WITH THE EXHAUSTIVELY DETAILED SPECIFICATIONS. WE VIEW THE ADVERTISED PROCUREMENT AS A SOLICITATION FOR A CONTRACT FOR THE PERFORMANCE OF DEFINITELY DESCRIBED AND ENUMERATED JANITORIAL SERVICES, AND NOT FOR THE FURNISHING OF EQUIPMENT, EMPLOYEES, OR ORGANIZATION AS SUCH OR OTHER THAN AS AN INCIDENT TO THE PERFORMANCE THEREOF. SEE 37 COMP. GEN. 143; 42 ID. 728; 43 ID. 77; AND B-160598, MARCH 8, 1967. ACCORDINGLY, IT WOULD BE IMPROPER FOR GSA TO REJECT THE LOW BID MERELY FOR THE FAILURE TO SUPPLY, WITH THE BID, REQUIRED INFORMATION WHICH COULD BE USED ONLY FOR DETERMINING THE BIDDER'S RESPONSIBILITY.

YOUR LETTER OF JANUARY 21 ALSO STATES THAT THE LOW BID SHOULD BE REJECTED SINCE THE FIRM IS NOT RESPONSIBLE IN THAT IT "IS THE PRESENT CONTRACTOR FOR SIMILAR WORK BEING PERFORMED AT THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT BUILDING IN WASHINGTON, D.C., AND THAT ITS PERFORMANCE OF SUCH WORK HAS BEEN UNSATISFACTORY.' IT IS THE POSITION OF THIS OFFICE THAT AN AGENCY'S DETERMINATION OF A CONTRACTOR'S QUALIFICATIONS WILL NOT BE QUESTIONED IN THE ABSENCE OF EITHER CLEAR EVIDENCE OF BAD FAITH OR A CONVINCING SHOWING THAT NO SUBSTANTIAL GROUNDS EXIST FOR THE ADMINISTRATIVE DETERMINATION. 37 COMP. GEN. 430. WE DO NOT BELIEVE THAT JUSTIFICATION EXISTS ON THE BASIS OF YOUR GENERAL DEROGATORY STATEMENT FOR QUESTIONING THE FAVORABLE DETERMINATION OF THE LOW BIDDER'S RESPONSIBILITY AS MADE BY GSA. HOWEVER, WE ARE PROVIDING THE ADMINISTRATION WITH A COPY OF THIS LETTER SO THAT YOUR OBJECTION CONCERNING THE LOW BIDDER'S RESPONSIBILITY CAN BE CONSIDERED.