B-166942, JUL. 28, 1969

B-166942: Jul 28, 1969

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BIDDER WHO DID NOT MEET THE EXPERIENCE REQUIREMENTS OF THE INVITATION BECAUSE HE HAD ONLY PERFORMED INTERMITTENT SERVICES NOT OF COMPARABLE SIZE AND TYPE AND WHO WAS DENIED CERTIFICATE OF COMPETENCY BY SMALL BUSINESS ADMINISTRATION WAS PROPERLY REJECTED AS A RESPONSIBLE BIDDER. SPOTT: REFERENCE IS MADE TO YOUR LETTERS OF MAY 7. THE SERVICES SPECIFIED IN THE INVITATION WERE FOR GUARDING ON A CONTINUING BASIS AT THE TWO LOCATIONS. GSA'S CREDIT AND FINANCE BRANCH CONCLUDED THAT YOUR FINANCIAL STATUS WAS SATISFACTORY. A FACILITIES CHECK WAS REQUESTED BY THE CONTRACTING OFFICER TO DETERMINE YOUR ABILITY TO FULFILL THE CONTRACT. IT WAS CONCLUDED THAT YOU WERE INCAPABLE OF PERFORMING THE CONTRACT DUE TO A LACK OF PERSONNEL AND LACK OF ADEQUATE DOCUMENTATION OF PAST PERFORMANCE.

B-166942, JUL. 28, 1969

BID PROTEST - BIDDER RESPONSIBILITY DECISION DENYING PROTEST AGAINST REJECTION BY GENERAL SERVICES ADMINISTRATION OF BID OF JOSEPH E. SPOTT FOR FURNISHING BUILDING GUARD SERVICES IN SAN FRANCISCO ON BASIS OF LACK OF RESPONSIBILITY. BIDDER WHO DID NOT MEET THE EXPERIENCE REQUIREMENTS OF THE INVITATION BECAUSE HE HAD ONLY PERFORMED INTERMITTENT SERVICES NOT OF COMPARABLE SIZE AND TYPE AND WHO WAS DENIED CERTIFICATE OF COMPETENCY BY SMALL BUSINESS ADMINISTRATION WAS PROPERLY REJECTED AS A RESPONSIBLE BIDDER.

TO MR. JOSEPH E. SPOTT:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 7, 1969, AND MAY 21, 1969, WITH ENCLOSURES, PROTESTING AGAINST THE REJECTION OF YOUR BID FOR BUILDING GUARD SERVICES UNDER INVITATION FOR BIDS NO. PBS-BMD-69-18, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE RECORD DISCLOSES THAT THE INVITATION REQUESTED BIDS FOR GUARD SERVICE FOR A 1-YEAR PERIOD AT TWO FEDERAL BUILDINGS IN THE SAN FRANCISCO, CALIFORNIA AREA. THE SERVICES SPECIFIED IN THE INVITATION WERE FOR GUARDING ON A CONTINUING BASIS AT THE TWO LOCATIONS, WHICH, AT YOUR BID PRICE, WOULD RESULT IN PAYMENT TO YOU FOR SERVICES IN EXCESS OF $35,000. AFTER BID OPENING ON JANUARY 23, 1969, AND THE DISCLOSURE AND SUBSEQUENT VERIFICATION OF YOUR LOW BID, THE CONTRACTING OFFICER MADE INQUIRY INTO YOUR FINANCIAL RESPONSIBILITY. GSA'S CREDIT AND FINANCE BRANCH CONCLUDED THAT YOUR FINANCIAL STATUS WAS SATISFACTORY; HOWEVER, THE BRANCH'S REPORT INDICATED THAT YOU HAD DEALT ONLY IN THE RETAIL SALE OF VARIOUS CHEMICAL PRODUCTS AND HAD NOT PROVIDED GUARD SERVICE IN THE PAST. IN VIEW THEREOF, A FACILITIES CHECK WAS REQUESTED BY THE CONTRACTING OFFICER TO DETERMINE YOUR ABILITY TO FULFILL THE CONTRACT. IN A PLANT FACILITIES REPORT, IT WAS CONCLUDED THAT YOU WERE INCAPABLE OF PERFORMING THE CONTRACT DUE TO A LACK OF PERSONNEL AND LACK OF ADEQUATE DOCUMENTATION OF PAST PERFORMANCE. THE REPORT DISCLOSED THE ABSENCE OF PREVIOUS GOVERNMENT CONTRACTS WITH YOU AND STATED, WITH REFERENCE TO YOUR PRIOR GUARD SERVICE CONTRACTS, THAT THE BIDDER "HAS HAD NO EXPERIENCE COMPARABLE TO THE REQUIREMENTS OF BID INVITATION, WHICH MAY BE CONSIDERED SUFFICIENT CAUSE FOR REJECTION OF BID.' THE INVITATION FOR BIDS UNDER THE PARAGRAPH ENTITLED,"QUALIFICATION OF BIDDERS" PROVIDES:

"3. QUALIFICATION OF BIDDERS

"/A) BIDS WILL BE CONSIDERED ONLY FROM RESPONSIBLE ORGANIZATION OR INDIVIDUALS NOW OR RECENTLY ENGAGED IN THE PERFORMANCE OF BUILDING SERVICE CONTRACTS COMPARABLE TO THOSE DESCRIBED IN THE ATTACHED SCHEDULE. ORDER TO DETERMINE HIS QUALIFICATIONS, EACH BIDDER MAY BE REQUESTED TO FURNISH A NARRATIVE STATEMENT LISTING COMPARABLE CONTRACTS WHICH HE HAS PERFORMED DURING THE LAST TWO YEARS, TOGETHER WITH A GENERAL HISTORY OF HIS OPERATING ORGANIZATION AND COMPLETE EXPERIENCE. IN THE ABSENCE OF A CERTIFICATE OF COMPETENCY FROM THE SMALL BUSINESS ADMINISTRATION, EACH BIDDER MAY ALSO BE REQUIRED TO FURNISH A STATEMENT OF HIS FINANCIAL RESOURCES; SHOW THAT HE HAS THE ABILITY TO MAINTAIN A STAFF OF REGULAR EMPLOYEES ADEQUATE TO INSURE CONTINUOUS PERFORMANCE OF THE WORK; AND, DEMONSTRATE THAT HIS EQUIPMENT AND/OR PLANT CAPACITY FOR THE WORK CONTEMPLATED IS SUFFICIENT, ADEQUATE, AND SUITABLE.

"/B) COMPETENCY IN PERFORMING COMPARABLE BUILDING SERVICE CONTRACTS, DEMONSTRATION OF ACCEPTABLE FINANCIAL PERSONNEL, AND PLANT RESOURCES WILL BE CONSIDERED IN DETERMINING THE BID TO BE ACCEPTED.'

IT SHOULD BE NOTED AT THIS POINT THAT YOUR PREVIOUS GUARD SERVICE CONTRACT EXPERIENCE HAD INVOLVED INTERMITTENT CONTRACTS OF LIMITED DURATION.

BASED ON THE AFORE GOING, CITING LACK OF ORGANIZATION AND PERSONNEL TRAINED FOR THE WORK AND LACK OF EXPERIENCE IN COMPARABLE WORK, THE CONTRACTING OFFICER REQUESTED A CERTIFICATE OF COMPETENCY FROM THE SMALL BUSINESS ADMINISTRATION (SBA), PURSUANT TO FEDERAL PROCUREMENT REGULATIONS 1-1.708.2. AFTER CONSIDERING THE MATTER, AND "BASED ON A COMPREHENSIVE ANALYSIS OF ALL AVAILABLE INFORMATION," THE SBA DECLINED TO ISSUE THE CERTIFICATE OF COMPETENCY. SUBSEQUENTLY, YOU WERE NOTIFIED BY THE CONTRACTING OFFICER THAT YOUR BID HAD BEEN REJECTED.

YOU CONTEND THAT YOU ARE A RESPONSIBLE BIDDER BASED ON YOUR PREVIOUS GUARD CONTRACTS AND ACADEMIC BACKGROUND. YOU IMPLIEDLY CONCUR WITH THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR PAST EXPERIENCE IN SUPPLYING GUARD SERVICES WAS INTERMITTENT IN CHARACTER AND NOT COMPARABLE AS TO SIZE AND TYPE TO THE BID INVITATION REQUIREMENTS.

WE HAVE HELD THAT THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM A CONTRACT IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICER CONCERNED, AND, IN THE ABSENCE OF BAD FAITH, OR THE LACK OF A REASONABLE GROUND THEREFOR, THERE IS NO BASIS UPON WHICH HE MAY OBJECT. -164199, AUGUST 12, 1968; 37 COMP. GEN. 430, 435. IN B-159247, AUGUST 26, 1966, IT IS STATED:

"WE HAVE HELD THAT THE REFUSAL OF THE SMALL BUSINESS ADMINISTRATION TO ISSUE A CERTIFICATE OF COMPETENCY AS TO A SMALL-BUSINESS BIDDER MUST BE REGARDED AS PERSUASIVE WITH RESPECT TO THE COMPETENCY OR CREDIT OF THE BIDDER CONCERNED. 39 COMP. GEN. 705. WHEN THE ISSUANCE OF A CERTIFICATE OF COMPETENCY IS DENIED, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED. WE HAVE NO AUTHORITY TO REVIEW DETERMINATIONS OF THE SMALL BUSINESS ADMINISTRATION, OR REQUIRE IT TO ISSUE A CERTIFICATE OF COMPETENCY. NOR DO WE DISTURB THE DETERMINATIONS OF A CONTRACTING OFFICER WHERE, AS HERE, THEY APPEAR TO BE SUPPORTED BY THE EVIDENCE OF RECORD AND ARE NEITHER ARBITRARY NOR CAPRICIOUS.' SEE ALSO B-164513, OCTOBER 17, 1968.

IN VIEW OF THE FOREGOING, NO LEGAL BASIS EXISTS FOR OUR OFFICE TO OBJECT TO THE REJECTION OF YOUR BID. ACCORDINGLY, YOUR PROTEST IS DENIED.