B-165842, APR. 1, 1969

B-165842: Apr 1, 1969

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INC.: REFERENCE IS MADE TO THE TELEGRAM OF DECEMBER 21. WHICH AUTHORIZES PROCUREMENT BY NEGOTIATION WHEN THE CONTRACT IS FOR PROPERTY OR SERVICES TO BE PROCURED AND USED OUTSIDE THE UNITED STATES. TWO PROPOSALS PERTINENT TO THIS PROTEST WERE RECEIVED AS FOLLOWS: CKC ENTERPRISES CO. 449.64AWARD WAS MADE TO CKC ENTERPRISES. CONTRARY TO YOUR UNDERSTANDING THE CONTRACT AWARDED IS FOR ONLY THE SIX MONTH PERIOD CALLED FOR BY THE SOLICITATION. YOUR PROTEST IS BASED ON SEVERAL ALLEGATIONS PURPORTING TO PROVE NONRESPONSIBILITY AS DEFINED IN THE ASPR 1-903.1 ON THE PART OF CKC ENTERPRISES. THE PROTEST AGAINST THIS PRIOR CONTRACT WAS FORWARDED FOR DECISION TO HEADQUARTERS. NO SANITATION PROBLEMS WERE NOTED.

B-165842, APR. 1, 1969

TO PACIFIC MARINE AND TRADING COMPANY, INC.:

REFERENCE IS MADE TO THE TELEGRAM OF DECEMBER 21, 1968, AND LETTER OF DECEMBER 29, 1968, WITH ENCLOSURES, PROTESTING AGAINST THE AWARD OF A NEGOTIATED CONTRACT TO CKC ENTERPRISES, CO., LTD., UNDER REQUEST FOR PROPOSALS (RFP) NO. F62134-69-R-0106, ISSUED ON NOVEMBER 7, 1968, BY THE U.S. AIR FORCE BASE PROCUREMENT OFFICE, U-TAPAO AIRFIELD, THAILAND.

THE SUBJECT RFP ISSUED PURSUANT TO 10 U.S.C. 2304 (A) (6), WHICH AUTHORIZES PROCUREMENT BY NEGOTIATION WHEN THE CONTRACT IS FOR PROPERTY OR SERVICES TO BE PROCURED AND USED OUTSIDE THE UNITED STATES, REQUESTED PROPOSALS FOR FURNISHING LAUNDRY SERVICES FOR THE U.S. AIR FORCE HOSPITAL AND THE BASE LINEN EXCHANGE AT U-TAPAO AIRFIELD, THAILAND, FOR THE PERIOD OF SIX MONTHS FROM JANUARY 1, THROUGH JUNE 30, 1969.

BY CLOSING DATE OF NOVEMBER 15, 1968, TWO PROPOSALS PERTINENT TO THIS PROTEST WERE RECEIVED AS FOLLOWS:

CKC ENTERPRISES CO., LTD. $53,284.95

PACIFIC MARINE AND TRADING CO., INC. $67,449.64AWARD WAS MADE TO CKC ENTERPRISES, ON DECEMBER 30, 1968, PRIOR TO THE RESOLUTION OF YOUR PROTEST, IN ORDER TO PROVIDE CONTINUITY OF CRITICAL SERVICES IN ACCORDANCE WITH THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 407.9 (B) (3) AND THE U.S. AIR FORCE PROCUREMENT INSTRUCTION 1-467 (C). CONTRARY TO YOUR UNDERSTANDING THE CONTRACT AWARDED IS FOR ONLY THE SIX MONTH PERIOD CALLED FOR BY THE SOLICITATION, AN ERRONEOUS RECITAL OF THE PERIOD HAVING BEEN PROMPTLY CORRECTED.

YOUR PROTEST IS BASED ON SEVERAL ALLEGATIONS PURPORTING TO PROVE NONRESPONSIBILITY AS DEFINED IN THE ASPR 1-903.1 ON THE PART OF CKC ENTERPRISES. IN ADDITION, YOU ALLEGE, AMONG OTHER THINGS, VIOLATIONS OF THAI LAW WITH RESPECT TO THE CORPORATE STATUS OF CKC ENTERPISES, BREACH OF THE COVENANT AGAINST CONTINGENT FEES, VIOLATION OF THE PROVISIONS AGAINST GRATUITIES, INTIMIDATION OF YOUR SUBCONTRACTOR BY THE BASE PROCUREMENT OFFICE PERSONNEL, AND CRIMINAL CONDUCT AND EMBEZZLEMENT ON THE PART OF THE CKC ENTERPRISES' EMPLOYEES. YOU ALSO ALLEGE TECHNICAL VIOLATIONS DURING THE PERFORMANCE OF CONTRACT NO. F62134-68-C-0153.

YOU FILED A LIKE PROTEST ON JULY 19, 1968, WITH THE BASE PROCUREMENT OFFICER, U-TAPAO AIRFIELD, PROTESTING THE AWARD OF CONTRACT NO. F62134 68- R-0027 TO CKC ENTERPRISES FOR A SIMILAR LAUNDRY SERVICE FOR THE PERIOD OF JULY 1 THROUGH DECEMBER 31, 1968. THE PROTEST AGAINST THIS PRIOR CONTRACT WAS FORWARDED FOR DECISION TO HEADQUARTERS, AIR FORCE LOGISTIC COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO. THAT COMMAND AFTER FULL REVIEW OF THE RECORD FOUND THE PROTEST TO BE WITHOUT MERIT AND DENIED IT BY LETTER DATED SEPTEMBER 11, 1968.

THE AIR FORCE'S REPORT INDICATES THAT ON DECEMBER 12 AND 19, 1968, A TEAM OF AIR FORCE PERSONNEL REPRESENTING THE BASE PROCUREMENT OFFICE, BASE LINEN EXCHANGE AND BASE PREVENTIVE MEDICINE CONDUCTED A PRE-AWARD SURVEY OF CKC ENTERPRISES. THIS SURVEY RESULTED IN FINDINGS THAT CKC ENTERPRISES HAD ADEQUATE FACILITIES, EQUIPMENT, PERSONNEL, MANAGEMENT AND TECHNICAL ABILITY TO PERFORM THE LAUNDRY CONTRACT. FURTHERMORE, NO SANITATION PROBLEMS WERE NOTED, AND THE LAUNDRY PLANT APPEARED TO BE COMPLETELY CAPABLE OF HANDLING THE PROPOSED LAUNDRY REQUIREMENTS FOR THE COMING SIX MONTHS. YOUR COMPLAINTS AGAINST SUBCONTRACTORS USED BY CKC HAVE BEEN CONSIDERED AND FOUND TO BE WITHOUT SUBSTANTIAL MERIT.

CONCERNING THE FINANCIAL ABILITY OF THE CONTRACTOR, THE BASE PROCUREMENT OFFICE RECEIVED A LETTER DATED DECEMBER 23, 1968, FROM TIPSCO LTD TO GUARANTEE CKC ENTERPRISES' ABILITY TO PERFORM THE LAUNDRY CONTRACT AND A LETTER DATED DECEMBER 20, 1968, FROM BANGKOK BANK LTD., TO SUPPORT THE ABILITY OF TIPSCO LTD TO MAKE SUCH A GUARANTEE.

WITH RESPECT TO YOUR ALLEGATION THAT CKC ENTERPRISES VIOLATED THAI INCORPORATION LAWS, WE MUST RELY ON THE OPINION OF THE STAFF JUDGE ADVOCATE, BASED UPON ADVICE OF THAI COUNSEL, THAT THERE WAS NO IMPROPER OR ILLEGAL CONDUCT INVOLVED. IN ANY EVENT, THIS WOULD HAVE NO BEARING UPON THE AWARD MADE IN DECEMBER 1968, AT WHICH TIME CKC ENTERPRISES WAS UNQUESTIONABLY A LAWFUL CORPORATION WITH FULL AUTHORITY TO CONTRACT.

YOUR COMPLAINT INVOLVES IN GREAT PART VARIOUS CHARGES AGAINST A PRINCIPAL OF CKC ENTERPRISES, FORMERLY ASSOCIATED WITH YOU. THESE CHARGES APPEAR TO ARISE PRINCIPALLY FROM PERSONAL FEELINGS, AND TO THE EXTENT THAT THEY RELATE TO THE ISSUE OF CKC ENTERPRISES' RESPONSIBILITY, THE PROCURING OFFICIALS HAVE FOUND NO ADEQUATE SUPPORT THEREFOR. WE ALSO NOTE THAT THE INDIVIDUAL IN QUESTION HAS NOT BEEN EMPLOYED BY CKC ENTERPRISES SINCE NOVEMBER 1968. FURTHERMORE, THE RECORD SHOWS THAT THE CONVENANT AGAINST CONTINGENT FEES WAS NOT VIOLATED BECAUSE CKC ENTERPRISES WAS REPRESENTED IN ALL NEGOTIATIONS BY MR. KRIT VAIDYANUVALTTI, AN OFFICER AND PROMOTER OF THE CONTRACTOR. YOUR ALLEGATIONS OF IMPROPER CONDUCT ON THE PART OF AIR FORCE PERSONNEL WERE THOROUGHLY INVESTIGATED BY THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS AND SUCH ALLEGATIONS WERE FOUND TO BE WITHOUT SUBSTANTIAL FOUNDATION.

WITH FURTHER REGARD TO CKC ENTERPRISES' CAPABILITY TO PERFORM THE CONTRACT, THE AIR FORCE RECORD SHOWS THAT CKC ENTERPRISES SUBSTANTIALLY INVESTED IN NEW LAUNDRY EQUIPMENT AND GENERAL MODERNIZATION OF LAUNDRY FACILITIES. THESE FACILITIES WHICH WERE BEING USED UNDER THE PREVIOUS CONTRACT NO. F62134-68-C-0153, FUNCTIONED IN A SATISFACTORY MANNER. ALTHOUGH YOU ALLEGE TECHNICAL VIOLATIONS OF THIS CONTRACT, THE AIR FORCE STATES THAT A NUMBER OF INSPECTIONS WERE MADE AND ANY DEFICIENCIES FOUND WERE PROMPTLY CORRECTED. MINOR VIOLATIONS OF THIS NATURE ARE NOT UNCOMMON IN A FOREIGN PROCUREMENT WHERE LOCAL STANDARDS MAY DIFFER SIGNIFICANTLY FROM THOSE DESIRED. IT APPEARS THAT THE CONTRACTING OFFICER TOOK ALL REASONABLE STEPS IN ADMINISTERING THE CONTRACT AND SUCCEEDED IN UPGRADING THE QUALITY OF LAUNDRY SERVICE TO THAT REQUIRED BY THE CONTRACT.

OUR OFFICE HAS CONSISTENTLY HELD THAT DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY AND NOT OF THE GENERAL ACCOUNTING OFFICE. SEE 38 COMP. GEN. 131, 33 ID. 549. THE DETERMINATION OF RESPONSIBILITY IS A MATTER OF JUDGMENT APPLIED TO MATTERS OF FACT, AND IN THE ABSENCE OF ERROR, FRAUD OR FAVORITISM, OUR OFFICE WILL ACCEPT THE FINDINGS OF THE CONTRACTING AGENCY. SEE 40 COMP. GEN. 294. THE PROJECTION OF THE CONTRACTOR'S ABILITY TO PERFORM IS COMMITTED TO THE ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS, SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, AND IT WOULD BE UNREASONABLE TO SUPER-IMPOSE OUR JUDGMENT ON THAT OF THE CONTRACTING OFFICERS. SEE 39 COMP. GEN. 705.

THE RECORD SHOWS THAT THE AWARD TO CKC ENTERPRISES WAS MADE AFTER THE CONTRACTING OFFICER HAD ISSUED DETERMINATION REQUIRED BY ASPR 1 904.1 THAT CKC ENTERPRISES WAS A RESPONSIBLE CONTRACTOR WITHIN THE MEANING OF ASPR 1- 902. CKC ENTERPRISES HAS A SATISFACTORY PERFORMANCE RECORD AND SINCE WE FIND NO EVIDENCE OF ERROR, FRAUD OR FAVORITISM, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY.

FOR THE REASONS STATED, WE FIND THAT THE AWARD TO CKC ENTERPRISES IS NOT LEGALLY OBJECTIONABLE. YOUR PROTEST IS THEREFORE DENIED.