B-167203, SEP 11, 1969

B-167203: Sep 11, 1969

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LOW BIDDER WHO SUBMITTED INFORMATION AFTER OPENING OF PREVIOUS GOVERNMENTAL AWARDS NEED NOT HAVE FAILURE TO SUBMIT EXPERIENCE AND CAPACITY DATA WITH BID CONSIDERED FATAL TO CONSIDERATION OF BID SINCE INFORMATION DEALS WITH RESPONSIBILITY RATHER THAN RESPONSIVENESS OF BID. INC.: REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 10. WAS ISSUED ON FEBRUARY 12. FIVE BIDS WERE RECEIVED AND OPENED ON MARCH 14. 077.59 AWARD OF THE CONTRACT WAS MADE TO THE LOW BIDDER. YOUR PRIMARY CONTENTIONS ARE THAT INDUSTRIAL MAINTENANCE SERVICES. IN REGARD TO BOTH OF THESE CONTENTIONS YOU HAVE EMPHASIZED THAT INDUSTRIAL MAINTENANCE SERVICES. IS NOT NOW AND NEVER HAS BEEN ENGAGED IN THE BUSINESS OF PROVIDING SECURITY GUARD OR PROTECTIVE PLANT SERVICES.

B-167203, SEP 11, 1969

BID PROTEST - RESPONSIBILITY DECISION DENYING PROTEST OF HARRISON SECURITY SERVICE, INC. AGAINST AWARD OF A GUARD SERVICE CONTRACT AT FORT RUCKER, ALABAMA TO INDUSTRIAL MAINTENANCE SERVICES, INC., LOW BIDDER. LOW BIDDER WHO SUBMITTED INFORMATION AFTER OPENING OF PREVIOUS GOVERNMENTAL AWARDS NEED NOT HAVE FAILURE TO SUBMIT EXPERIENCE AND CAPACITY DATA WITH BID CONSIDERED FATAL TO CONSIDERATION OF BID SINCE INFORMATION DEALS WITH RESPONSIBILITY RATHER THAN RESPONSIVENESS OF BID.

HARRISON SECURITY SERVICES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM DATED JUNE 10, 1969, AND YOUR LETTER, WITH ENCLOSURES, RECEIVED BY THIS OFFICE ON JUNE 17, 1969, PROTESTING THE AWARD OF A CONTRACT TO INDUSTRIAL MAINTENANCE SERVICES, INC., UNDER FOR BIDS (IFB) NO. DAV 201-69-B-0049, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT RUCKER, ALABAMA.

THE REFERENCED SOLICITATION COVERED PROTECTIVE GUARD SERVICES AT FORT RUCKER, ALABAMA, AND WAS ISSUED ON FEBRUARY 12, 1969, TO TWENTY-THREE PROSPECTIVE BIDDERS. FIVE BIDS WERE RECEIVED AND OPENED ON MARCH 14, 1969, AS FOLLOWS:

A. INDUSTRIAL MAINTENANCE, INC. $738,416.00

B. M&S SENTRY SERVICE, INC. 752,880.00

C. HARRISON SECURITY SERVICES, INC. 771,586.08

D. DYNAMICS CORP 895,547.40 (LESS 10%)

E. METROPOLITAN SECURITY SERVICES 842,077.59

AWARD OF THE CONTRACT WAS MADE TO THE LOW BIDDER, INDUSTRIAL MAINTENANCE SERVICES, INC., ON JULY 1, 1969.

YOUR PRIMARY CONTENTIONS ARE THAT INDUSTRIAL MAINTENANCE SERVICES, INC., DID NOT COMPLY WITH THE GENERAL INSTRUCTIONS AND REQUIREMENTS OF THE INVITATION TO SUBMIT DETAILED INFORMATION SUFFICIENTLY AND ACCURATELY TO DESCRIBE THE COMPANY'S EXPERIENCE AND CAPABILITY IN THE SECURITY GUARD OR PROTECTIVE PLANT SERVICE FIELD, AND THAT THE COMPANY THEREAFTER SUBMITTED INVALID INFORMATION IN AN ATTEMPT TO SHOW SUFFICIENT CAPABILITY OR QUALIFICATION IN THIS AREA. IN REGARD TO BOTH OF THESE CONTENTIONS YOU HAVE EMPHASIZED THAT INDUSTRIAL MAINTENANCE SERVICES, INC., IS NOT NOW AND NEVER HAS BEEN ENGAGED IN THE BUSINESS OF PROVIDING SECURITY GUARD OR PROTECTIVE PLANT SERVICES, AND HAVE ALLEGED THAT IT HOPED TO OVERCOME ITS LACK OF CAPACITY TO PERFORM THE CONTRACT BY USING THE PERSONNEL OF YOUR FIRM, WHICH HAD THE CONTRACT FOR SIMILAR SERVICES AT FORT RUCKER PRIOR TO THE AWARD OF THIS NEW CONTRACT.

IN REGARD TO YOUR FIRST CONTENTION, YOU HAVE EMPHASIZED AND QUOTED SECTION 2-A.(1) OF THE GENERAL INSTRUCTIONS TO BIDDERS. SECTION 2-A READS IN ITS ENTIRETY AS FOLLOWS:

"2. INFORMATION TO BE FURNISHED BY BIDDER:

"A. ALL BIDDERS MUST SUBMIT COMPLETE DETAILED INFORMATION CONCERNING THE FOLLOWING AREAS:

"(1) HISTORY OF BIDDER'S EXPERIENCE AND CAPABILITY IN THE SECURITY GUARD OR PROTECTIVE PLANT SERVICE FIELD.

"(2) BIDDER'S EXPERIENCE AND CAPABILITY IN INDUSTRIAL PLANT MANAGEMENT.

"(3) BIDDER'S EXPERIENCE IN THE CONDUCT OF BUSINESS INVOLVING CONTRACTS WITH THE UNITED STATES GOVERNMENT.

"(4) BIDDER'S PROPOSED ORGANIZATION, OPERATING POLICIES, PLANS AND PROCEDURES FOR THE CONDUCT OF THE SECURITY SERVICE.

"(5) BIDDER'S CURRENT FINANCIAL CONDITION AND AVAILABILITY OF OPERATING CAPITAL REQUIRED FOR CONTRACT PERFORMANCE."

IT IS TRUE THAT NO INFORMATION AS TO ANY OF THE ABOVE POINTS WAS FURNISHED BY INDUSTRIAL MAINTENANCE SERVICES, INC., WITH ITS BID. THE COMPANY DID, HOWEVER, FURNISH VERY DETAILED DATA BY LETTER OF MARCH 20, 1969, INDICATING THAT IT HAD PREVIOUS GOVERNMENTAL AWARDS FOR A VARIETY OF NONPERSONAL SERVICES, SUCH AS CUSTODIAL, KITCHEN POLICE AND OPERATION OF SEWAGE TREATMENT PLANTS. THE STATEMENT SUBMITTED CONTAINED SPECIFIC INFORMATION ON THE FOLLOWING AREAS, AS SHOWN BY THE FOLLOWING TABLE OF CONTENTS AND LIST OF ILLUSTRATIONS:

TABLE OF CONTENTS

SECTION:

I. EXPERIENCE FACTOR.

II. MANAGEMENT CAPABILITIES.

III. GOVERNMENT CONTRACTS EXPERIENCE.

IV. ORGANIZATIONAL PLANS, PROCEDURES AND POLICIES.

V. CURRENT FINANCIAL STATUS.

LIST OF ILLUSTRATIONS

FIGURE TITLE

1. GUARD POST MANNING TABLE.

2. VEHICLE MAINTENANCE REPORT.

3. COMPANY APPLICATION FORM.

IT SHOULD BE INITIALLY EMPHASIZED THAT QUESTIONS OF CAPACITY AND RESPONSIBILITY MAY NOT BE TREATED AS QUESTIONS OF RESPONSIVENESS. 150373, MARCH 7, 1963. THERE APPEARS TO BE NO ROOM FOR DOUBT THAT THE DATA REQUESTED IN THIS INSTANCE PERTAINS SOLELY TO THE OFFEROR'S RESPONSIBILITY AND NOT TO THE RESPONSIVENESS OF HIS BID. SEE B-158290, JANUARY 17, 1966.

WE HAVE CONSISTENTLY HELD THAT WHERE THE REQUIREMENT FOR THE SUBMISSION OF DATA IS FOR THE PURPOSE OF DETERMINING THE CAPACITY OR RESPONSIBILITY OF THE OFFEROR RATHER THAN WHETHER THE PROPERTY OR SERVICES OFFERED CONFORM TO THE GOVERNMENT'S NEEDS AS STATED IN THE SOLICITATION, THE FAILURE OF THE OFFEROR TO SUBMIT ADEQUATE DATA WITH HIS BID FOR SUCH USE IS NOT FATAL TO CONSIDERATION OF THE BID, INASMUCH AS A BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER THE OPENING OF THE BIDS. 39 COMP. GEN. 247; ID. 881, 41 ID. 555. THE RESULT WOULD BE THE SAME EVEN IF THE OFFERORS HAD BEEN WARNED THAT FAILURE TO CONFORM TO DATA SUBMISSION WILL RESULT IN THEIR BIDS BEING DEEMED NONRESPONSIVE. SEE 39 COMP. GEN. 881; 42 ID. 464.

FURTHERMORE, THE PROVISION IN THE INVITATION REQUIRING THE EXPERIENCE AND CAPABILITY DATA WAS INSERTED FOR THE CONVENIENCE OF THE GOVERNMENT AND IN NO WAY AFFECTS THE RIGHTS OF THE COMPETING OFFERORS. THE LOW OFFEROR LEGALLY COULD NOT HAVE REFUSED TO ACCEPT AWARD OF THE CONTRACT ON THE GROUND THAT HIS BID WAS DEFECTIVE IN THAT IT DID NOT INCLUDE THE INFORMATION REQUESTED IN THE ABOVE CITED PARAGRAPH 2(A). IN SUCH CIRCUMSTANCES STRICT COMPLIANCE WITH THE REQUIREMENT MAY BE WAIVED BY THE GOVERNMENT AS AN INFORMALITY, AS EXPRESSLY AUTHORIZED BY PARAGRAPH 10 (B) ON THE REVERSE OF STANDARD FORM 33A USED IN THE SOLICITATION. SEE 39 COMP. GEN. 881.

IN REGARD TO YOUR SECOND CONTENTION THAT INDUSTRIAL MAINTENANCE SERVICES, INC., SUBMITTED INVALID INFORMATION FOR QUALIFICATION PURPOSES, WE MUST ASSUME THAT YOU ARE REFERRING TO THE COMPANY'S PROPOSED USE OF CERTAIN OF YOUR COMPANY'S PERSONNEL IF IT RECEIVED THE CONTRACT. IN THIS REGARD, YOU HAVE FURNISHED TWO SETS OF STATEMENTS, SIGNED BY INDIVIDUALS WHOM YOU HAVE DESIGNATED AS THE TOP NINE PERSONNEL PERFORMING UNDER YOUR CONTRACT FOR THESE SERVICES AT FORT RUCKER. THESE STATEMENTS INDICATE THAT THE INDIVIDUALS WOULD NOT HAVE LEFT YOUR FIRM FOR EMPLOYMENT WITH INDUSTRIAL MAINTENANCE SERVICES, INC., IF THAT FIRM RECEIVED THE SUBJECT CONTRACT. WE HAVE CAREFULLY CONSIDERED THESE STATEMENTS BUT FIND THAT THEY ARE OF LITTLE VALUE IN DETERMINING WHETHER INDUSTRIAL MAINTENANCE SERVICES, INC., WAS QUALIFIED TO PERFORM THE WORK CALLED FOR UNDER THE PROPOSED CONTRACT, SINCE IT WAS SHOWN THAT PRIOR TO AWARD IT HAD APPLICATIONS FOR EMPLOYMENT FROM EXPERIENCED PERSONNEL IN EXCESS OF THE NUMBER REQUIRED. NUMEROUS OTHER FACTORS ALSO WERE CONSIDERED BY THE PROCURING ACTIVITY IN DETERMINING THAT INDUSTRIAL MAINTENANCE SERVICES, INC., WAS SO QUALIFIED.

THE DEFENSE CONTRACT ADMINISTRATION SERVICE (DCAS) CONDUCTED A PREAWARD SURVEY ON INDUSTRIAL MAINTENANCE SERVICES, INC., AND RECOMMENDED "COMPLETE AWARD." AMONG OTHER FACTORS, THE PREAWARD SURVEY INDICATES THAT ALTHOUGH INDUSTRIAL MAINTENANCE SERVICES, INC., HAD NEVER PREVIOUSLY HAD A CONTRACT FOR SECURITY GUARD SERVICES THEY PROPOSED TO USE A GENERAL MANAGER, WHO HAS 23 YEARS EXPERIENCE IN SECURITY GUARD SERVICES, MAINLY WITH MILITARY SECURITY SERVICE. THE PREAWARD SURVEY FURTHER INDICATED THAT INDUSTRIAL MAINTENANCE SERVICES, INC., HAD THE TECHNICAL AND FINANCIAL CAPABILITY, PLANT FACILITIES AND EQUIPMENT, LABOR RESOURCES, PERFORMANCE RECORD AND ABILITY TO MEET THE REQUIRED SCHEDULE. ON JUNE 5, 1969, THE PREAWARD SURVEY WAS REAFFIRMED BY DCAS.

IN ADDITION, THE PROCURING ACTIVITY STATES THAT PAST EXPERIENCE HAS INDICATED THAT A MAJORITY OF AN INCUMBENT CONTRACTOR'S PERSONNEL WILL BE RETAINED BY A SUCCESSOR CONTRACTOR, AND, IN FACT THAT MANY OF YOUR EMPLOYEES HAD BEEN EMPLOYED BY THE PREVIOUS CONTRACTOR. THIS HAS PROVEN TRUE ON HINDSIGHT IN THAT IT IS REPORTED THAT AS OF JULY 25, 1969, SEVEN OF THE NINE EMPLOYEES WHOSE STATEMENTS YOU FURNISHED, WERE EMPLOYED BY INDUSTRIAL MAINTENANCE SERVICES, INC.

WITH RESPECT TO THE NATURE OF THE REVIEW BY THIS OFFICE OF THE PROCURING ACTIVITY THAT INDUSTRIAL MAINTENANCE SERVICES, INC., WAS A QUALIFIED OFFEROR, WE QUOTE THE FOLLOWING FROM B-163859, APRIL 17, 1968, WHICH ALSO CONCERNED A SITUATION WHERE AN OFFEROR PROTESTED AGAINST AN AFFIRMATIVE ADMINISTRATIVE DETERMINATION REGARDING THE RESPONSIBILITY OF THE LOW OFFEROR:

"OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY AND NOT OF THE GENERAL ACCOUNTING OFFICE. 38 COMP. GEN. 131; 33 ID. 549. WHETHER A BIDDER IS, OR IS NOT, CAPABLE OF PRODUCING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT, AND ABSENT EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITIES WAS BASED ON ERROR, FRAUD, OR FAVORITISM, OUR OFFICE WILL ACCEPT THE FINDING OF THE CONTRACTING AGENCY. 40 COMP. GEN. 294. WE HAVE ALSO STATED THAT THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT, WHICH, WHILE IT SHOULD BE BASED ON FACT AND ARRIVED AT IN GOOD FAITH, MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED, SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY-TO-DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, WE HAVE HELD THAT IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING OFFICIALS. 39 COMP. GEN 705, 711."

BASED ON THE INFORMATION DISCUSSED ABOVE, WE FIND NO BASIS FOR QUESTIONING THE ADMINISTRATIVE DETERMINATION THAT INDUSTRIAL MAINTENANCE SERVICES, INC., WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR, AND YOUR PROTEST MUST THEREFORE BE DENIED.