B-167378, OCT. 14, 1969

B-167378, OCT. 14, 1969

BIDDERS--QUALIFICATIONS--PRIOR UNSATISFACTORY SERVICE REJECTION OF LOW BID FOR EXTERIOR REPAINTING OF CERTAIN BUILDINGS UPON CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY BASED ON PAST PERFORMANCE RECORD AND LACK OF REQUISITE TENACITY AND PERSEVERANCE TO BE JUDGED RESPONSIBLE CONTRACTOR IS SUSTAINED, AS AWARD MAY BE MADE ONLY TO RESPONSIBLE BIDDER (10 U.S.C. 2305 (C)), BIDDER MUST AFFIRMATIVELY DEMONSTRATE RESPONSIBILITY (ASPR 1-902), AND PAST UNSATISFACTORY PERFORMANCE, IS SUFFICIENT TO JUSTIFY FINDING OF NONRESPONSIBILITY (ASPR 1 -903.1). GENERAL ACCOUNTING OFFICE WILL NOT QUESTION PROCURING ACTIVITY'S DETERMINATION OF CONTRACTOR'S ABILITY OR DESIRE TO PERFORM UNLESS SUCH DETERMINATION LACKS REASONABLE BASIS OR IS NOT MADE IN GOOD FAITH, AND TOTAL RECORD HERE PROVIDES REASONABLE BASIS FOR CONTRACTING OFFICER'S DETERMINATION.

TO LYCETTE, DIAMOND AND SYLVESTER:

THIS CONCERNS YOUR LETTER OF JUNE 27, 1969, PROTESTING ON BEHALF OF FEDERAL CONTRACTORS, INCORPORATED, THE REJECTION OF THAT COMPANY'S LOW BID UNDER INVITATION NO. DABFL5-69-B-0201 ISSUED BY THE FORT LEWIS PURCHASING AND CONTRACTING OFFICE.

THIS INVITATION FOR BIDS WAS ISSUED ON MAY 9, 1969, FOR THE EXTERIOR REPAINTING OF CERTAIN BUILDINGS AT FORT LEWIS, WASHINGTON. BIDS WERE OPENED ON JUNE 18, 1969, AND THE BID OF FEDERAL CONTRACTORS, INCORPORATED, WAS LOW. HOWEVER, THE CONTRACTING OFFICER, WITH RESPECT TO AN EARLIER PROCUREMENT, HAD FOUND ON MARCH 10, 1969, THAT FEDERAL CONTRACTORS WAS NOT A RESPONSIBLE BIDDER ON THE BASIS OF ITS PERFORMANCE RECORD AT THAT TIME. BASED ON THE PRIOR DETERMINATION AND THE FAILURE OF THE FIRM TO MAKE SATISFACTORY PROGRESS UNDER TWO CONTRACTS IN EXISTENCE AT THE TIME OF THE EARLIER DETERMINATION THE CONTRACTING OFFICER WAS UNABLE TO MAKE AN AFFIRMATIVE FINDING OF RESPONSIBILITY WHICH IS A PREREQUISITE TO AWARD UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-902. PARTICULARLY, THE CONTRACTING OFFICER FELT THAT FEDERAL CONTRACTORS HAD FAILED IN THE PAST TO DEMONSTRATE THE REQUISITE TENACITY AND PERSEVERANCE TO BE JUDGED A RESPONSIBLE CONTRACTOR.

UNDER 10 U.S.C. 2305 (C) AWARD MAY BE MADE ONLY TO A RESPONSIBLE BIDDER. IN IMPLEMENTATION OF THE STATUTORY PROVISION, ASPR 1-902 REQUIRES THAT THE BIDDER AFFIRMATIVELY DEMONSTRATE HIS RESPONSIBILITY AND SUBPART (III) OF ASPR 1-903.1, WHICH ESTABLISHES MINIMUM STANDARDS FOR RESPONSIBLE CONTRACTORS, PROVIDES IN PART: "* * * PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE TO DO A JOB, SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY * * *.'

THIS OFFICE CONSISTENTLY HAS TAKEN THE POSITION THAT THE DETERMINATION OF A CONTRACTOR'S ABILITY OR DESIRE TO PERFORM IN THE FUTURE SHOULD BE MADE PRIMARILY BY THE PROCURING ACTIVITY AND WE QUESTION SUCH DETERMINATION ONLY WHERE IT LACKS A REASONABLE BASIS OR IS NOT MADE IN GOOD FAITH. SEE 43 COMP. GEN. 228; 38 ID. 778 AND COURT DECISIONS CITED IN THE LATTER OPINION. IN THIS INSTANCE, THE CONTRACTING OFFICER BASED HIS DETERMINATION ON THE SAME FACTORS WHICH LED TO THE FIRM'S EARLIER REJECTION FOR LACK OF RESPONSIBILITY TOGETHER WITH THE UNSATISFACTORY PERFORMANCE RECORD UNDER ANOTHER CONTRACT AND PERFORMANCE FAILURE WHICH LED TO TERMINATION FOR DEFAULT OF A THIRD CONTRACT. WE HAVE STATED THAT ONE DETERMINATION OF RESPONSIBILITY SHOULD NOT PER SE BE DETERMINATIVE WITH RESPECT TO A SUBSEQUENT PROCUREMENT. 43 COMP. GEN. 140. HOWEVER, WE BELIEVE THAT THE TOTAL RECORD PROVIDES A REASONABLE BASIS FOR THE CONTRACTING OFFICER'S DETERMINATION WITH RESPECT TO THE INSTANT PROCUREMENT. MORE PARTICULARLY IT DOES NOT APPEAR THAT THE FIRM'S MOST RECENT PERFORMANCE ON GOVERNMENT CONTRACTS WOULD SUPPORT AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY. WE THINK IT IS ALSO APPROPRIATE TO NOTE THAT FEDERAL CONTRACTORS WAS DENIED A CONTRACT ON A SIMILAR BASIS BY UNRELATED PERSONNEL AT THE GENERAL SERVICES ADMINISTRATION. THE GSA DETERMINATION WAS UPHELD IN OUR DECISION B-164508, AUGUST 6, 1968.

ACCORDINGLY, ON THE BASIS OF THE RECORD FURNISHED THIS OFFICE WE CAN FIND NO GROUND TO OBJECT TO THE CONTRACTING OFFICER'S CONCLUSION IN THIS CASE. THEREFORE, YOUR PROTEST ON BEHALF OF FEDERAL CONTRACTORS, INCORPORATED, IS DENIED.