B-167143, SEP. 25, 1969

B-167143: Sep 25, 1969

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WHERE SOME OF PERFORMANCE DEFICIENCES OF BIDDER WHO WAS DETERMINED TO LACK RESPONSIBILITY BASED ON TWO PRIOR CONTRACTS MAY HAVE BEEN MINOR WHEN CONSIDERED INDIVIDUALLY. THE CUMULATIVE EFFECT WAS TO UNDULY INCREASE BURDEN OF ADMINISTRATION OF CONTRACT AND THEREFORE SUCH RECORD SUPPORTS DETERMINATION OF NONRESPONSIBILITY. TO FEDERAL STENO SERVICES: REFERENCE IS MADE TO YOUR LETTER OF JUNE 3. WHICH WAS ISSUED ON MARCH 6. WAS FOR A REQUIREMENTS CONTRACT FOR COURT REPORTING AND TRANSCRIPTION SERVICES FOR THE PERIOD MAY 1. BIDS WERE OPENED ON MARCH 26. FEDERAL STENO SERVICES (FEDERAL) WAS THE SECOND LOW BIDDER IN FOUR AREAS OF WORK. WHEN THE LOW BIDDER IN THOSE AREAS WAS DETERMINED TO BE NONRESPONSIBLE.

B-167143, SEP. 25, 1969

BID PROTEST - BIDDER RESPONSIBILITY DECISION DENYING PROTEST OF FEDERAL STENO SERVICES, SECOND LOW BIDDER, AGAINST AWARD TO ANOTHER BIDDER OF A CONTRACT ISSUED BY GENERAL SERVICES ADMINISTRATION FOR COURT REPORTING SERVICES. WHERE SOME OF PERFORMANCE DEFICIENCES OF BIDDER WHO WAS DETERMINED TO LACK RESPONSIBILITY BASED ON TWO PRIOR CONTRACTS MAY HAVE BEEN MINOR WHEN CONSIDERED INDIVIDUALLY, THE CUMULATIVE EFFECT WAS TO UNDULY INCREASE BURDEN OF ADMINISTRATION OF CONTRACT AND THEREFORE SUCH RECORD SUPPORTS DETERMINATION OF NONRESPONSIBILITY.

TO FEDERAL STENO SERVICES:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1969, PROTESTING THE AWARD TO ANOTHER BIDDER OF A CONTRACT UNDER INVITATION FOR BIDS NO. WA ND-R-1982-3- 26-69, ISSUED BY THE GENERAL SERVICES ADMINISTRATION.

THE SOLICITATION, WHICH WAS ISSUED ON MARCH 6, 1969, WAS FOR A REQUIREMENTS CONTRACT FOR COURT REPORTING AND TRANSCRIPTION SERVICES FOR THE PERIOD MAY 1, 1969 (OR DATE OF AWARD, IF LATER), THROUGH APRIL 30, 1970. BIDS WERE OPENED ON MARCH 26, 1969, AND FEDERAL STENO SERVICES (FEDERAL) WAS THE SECOND LOW BIDDER IN FOUR AREAS OF WORK. WHEN THE LOW BIDDER IN THOSE AREAS WAS DETERMINED TO BE NONRESPONSIBLE, FEDERAL BECAME THE LOW BIDDER.

THEREAFTER, PLANT AND FACILITY REPORTS CONCERNING FEDERAL WERE REQUESTED AND RECEIVED BY THE GENERAL SERVICES ADMINISTRATION. THESE REPORTS INDICATED THAT FEDERAL HAD THE CAPACITY AND CREDIT TO SATISFACTORILY PERFORM UNDER THE CONTRACT FOR THE AREAS IN QUESTION. HOWEVER, BECAUSE OF ITS RECORD OF PRIOR POOR PERFORMANCE, THE CONTRACTING OFFICER, ON MAY 26, 1969, DETERMINED FEDERAL TO BE NONRESPONSIBLE DUE TO LACK OF TENACITY AND PERSEVERANCE.

WE ARE ADVISED THAT ON A CONTRACT FOR SIMILAR RECORDING AND TRANSCRIPTION SERVICES FOR THE PERIOD MAY 1, 1967, THROUGH APRIL 30, 1968, IT WAS NECESSARY FOR THE GENERAL SERVICES ADMINISTRATION TO CONFER WITH FEDERAL ON SEVERAL OCCASIONS DURING THE CONTRACT PERIOD TO DISCUSS COMPLAINTS RECEIVED WITH RESPECT TO FEDERAL'S PERFORMANCE, INCLUDING LATE DELIVERIES OF TRANSCRIPTS. IT WAS ONLY AFTER A TEN-DAY CURE NOTICE HAD BEEN ISSUED IN OCTOBER 1967, THAT FEDERAL'S PERFORMANCE ON THIS CONTRACT IMPROVED.

ON A SECOND, AND AGAIN SIMILAR, CONTRACT AWARDED TO FEDERAL FOR THE PERIOD MAY 1, 1968, THROUGH APRIL 30, 1969, THE RECORD BEFORE US IS REPLETE WITH COMPLAINTS BY VARIOUS AGENCIES EVIDENCING THEIR DISSATISFACTION WITH THE SERVICES WHICH FEDERAL HAD RENDERED TO THEM. THESE COMPLAINTS INCLUDE, LATE ARRIVAL OF PERSONS WHO WERE TO DO THE REPORTING; FAILURE TO REPORT ALL PARTS OF PROCEEDINGS; IMPROPER BILLINGS FOR WORK PERFORMED; LATE DELIVERIES; AND INACCURATE OR GARBLED TRANSCRIPTIONS. AS A CONSEQUENCE OF THESE COMPLAINTS THIS CONTRACT WAS TERMINATED FOR DEFAULT ON DECEMBER 18, 1968.

FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.310-4 STATES THAT THE GENERAL POLICY IS TO AWARD CONTRACTS ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. WITH RESPECT TO THE STANDARDS WHICH A CONTRACTOR MUST MEET TO QUALIFY AS RESPONSIBLE, FPR 1-1.310-5 (A) (4) READS AS FOLLOWS:

"/4) HAS A SATISFACTORY RECORD OF INTEGRITY, JUDGMENT, AND PERFORMANCE (CONTRACTORS WHICH ARE SERIOUSLY DELIQUENT IN CURRENT CONTRACT PERFORMANCE, CONSIDERING THE NUMBER OF CONTRACTS AND THE EXTENT OF DELINQUENCIES OF EACH, SHALL, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY OR COMPELLING CIRCUMSTANCES, BE PRESUMED TO BE UNABLE TO FULFILL THIS REQUIREMENT); "

THE REGULATIONS ARE IN ACCORD WITH VARIOUS DECISIONS OF OUR OFFICE HOLDING THAT A BIDDER'S PAST PERFORMANCE IS PROPERLY FOR CONSIDERATION IN DETERMINING WHETHER HE IS A RESPONSIBLE BIDDER. 37 COMP. GEN. 756; 39 ID. 705. FURTHERMORE, SINCE THE DETERMINATION OF A BIDDER'S RESPONSIBILITY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION, OUR OFFICE HAS CONSISTENTLY ADHERED TO THE RULE THAT THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY WILL NOT BE QUESTIONED UNLESS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE. B-164508, AUGUST 6, 1968.

THE CONTRACTING OFFICER HAS BASED HIS DETERMINATION ON THE HISTORY OF YOUR PERFORMANCE UNDER TWO PRIOR CONTRACTS. THE RECORD, TAKEN AS A WHOLE, ESTABLISHES THAT YOU HAVE THE NECESSARY CAPACITY AND CREDIT TO DO AN ACCEPTABLE JOB; HOWEVER, IT APPEARS THAT YOU ARE UNWILLING TO APPLY SUFFICIENT DILIGENCE TO DO AN ACCEPTABLE JOB. WHILE SOME OF THE PERFORMANCE DEFICIENCIES NOTED IN THE RECORD MAY HAVE BEEN MINOR WHEN CONSIDERED INDIVIDUALLY, THE CUMULATIVE EFFECT WAS TO UNDULY INCREASE THE BURDEN OF ADMINISTRATION FROM THE GOVERNMENT'S STANDPOINT. SUCH RECORD IS, WE THINK, ADEQUATE TO SUPPORT A DETERMINATION OF YOUR NONRESPONSIBILITY BY THE CONTRACTING OFFICER. THEREFORE, WE CANNOT CONCLUDE THAT YOUR DISQUALIFICATION WAS ARBITRARY, CAPRICIOUS, OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE. SEE 43 COMP. GEN. 257.