B-169160, MAY 4, 1970

B-169160: May 4, 1970

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ABSENT EVIDENCE THAT DETERMINATION OF BIDDER'S CAPABILITIES WAS BASED ON ERROR. FINDINGS OF CONTRACTING OFFICER ARE GENERALLY CONCLUSIVE. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27. C. THE SUBJECT INVITATION WAS ISSUED ON FEBRUARY 9. WHICHEVER IS DETERMINED TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT. IT IS REPORTED THAT A PRE-SOLICITATION CONFERENCE WAS HELD ON FEBRUARY 9. WERE REQUESTED TO FURNISH NAMES OF SKILLED CONTRACTORS TO BE INVITED TO THE CONFERENCE. WHICH ARE SMALL BUSINESS FIRMS. WAS AMONG THE FIRMS RECOMMENDED. IT WAS DETERMINED THAT CEA HAD SUBMITTED THE LOW RESPONSIVE BID IN THE AMOUNT OF $21. WE ARE ADVISED THAT ALL OF THE BIDDERS EXCEPT CEA WERE DISPLAY HOUSES OR EXHIBIT FABRICATORS.

B-169160, MAY 4, 1970

BIDDERS--QUALIFICATIONS--EXPERIENCE--SUFFICIENCY--EXHIBITS UNDER INVITATION FOR BIDS ON FABRICATION OF EXHIBITS FOR USE IN MAIN TREASURY BUILDING EXHIBIT HALL, LOW BIDDER WHO PROTESTS BID REJECTION FOR NONRESPONSIBILITY OFFERS NO BASIS FOR OBJECTION SINCE REASONABLE DOUBT EXISTED IN JUDGMENT OF CONTRACTING OFFICER, GUIDED BY FPR 1-1.310 5, AS TO ABILITY OF BIDDER TO PERFORM CONTRACT IN COMPETENT MANNER, SUCH DOUBT BEING BASED ON PREAWARD SURVEY REPORT AND CONTRACTING OFFICER'S OWN OBSERVATIONS SHOWING BIDDER'S LACK OF EXPERIENCE, SKILL, AND FACILITIES FOR EXHIBIT FABRICATION. ABSENT EVIDENCE THAT DETERMINATION OF BIDDER'S CAPABILITIES WAS BASED ON ERROR, FINDINGS OF CONTRACTING OFFICER ARE GENERALLY CONCLUSIVE. SEE COMP. GEN. DECS. CITED.

TO CEA INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 27, 1970, AND SUPPLEMENTAL CORRESPONDENCE, PROTESTING AGAINST THE AWARD OF A CONTRACT TO GENERAL EXHIBITS, INC; UNDER INVITATION FOR BIDS NO. ASB-0034, ISSUED BY THE DEPARTMENT OF THE TREASURY, PRINTING AND PROCUREMENT DIVISION, WASHINGTON, D. C.

THE SUBJECT INVITATION WAS ISSUED ON FEBRUARY 9, 1970, AND CALLED FOR THE FABRICATION OF EXHIBITS FOR USE IN THE MAIN TREASURY BUILDING EXHIBIT HALL. THE INVITATION STATED THAT BIDS WOULD BE OPENED ON FEBRUARY 20, 1970, AND THE AWARD WOULD BE MADE NO LATER THAN FEBRUARY 25, 1970. THE INVITATION STATED THAT AWARD DETERMINATION AND EVALUATION WOULD BE ON THE BASIS OF THE LOW BID BY A FINANCIALLY RESPONSIBLE, SKILLED CONTRACTOR FOR PROJECT COMPLETION BY APRIL 15, 1970, OR MAY 1, 1970, WHICHEVER IS DETERMINED TO BE MOST ADVANTAGEOUS TO THE GOVERNMENT.

IT IS REPORTED THAT A PRE-SOLICITATION CONFERENCE WAS HELD ON FEBRUARY 9, 1970, TO DISCUSS THE CONTRACT REQUIREMENT. THE SMITHSONIAN INSTITUTION AND THE UNITED STATES INFORMATION AGENCY, WHICH FREQUENTLY CONTRACT FOR EXHIBIT FABRICATION, WERE REQUESTED TO FURNISH NAMES OF SKILLED CONTRACTORS TO BE INVITED TO THE CONFERENCE. OF THE ELEVEN FIRMS RECOMMENDED FOR CONSIDERATION, FOUR ATTENDED THE CONFERENCE. NEITHER CEA NOR GENERAL EXHIBITS, INC; WHICH ARE SMALL BUSINESS FIRMS, WAS AMONG THE FIRMS RECOMMENDED. CEA AND GENERAL EXHIBITS, INC; APPARENTLY LEARNED OF THE PROCUREMENT AS A RESULT OF ITS PUBLICATION IN THE COMMERCE BUSINESS DAILY.

UPON THE OPENING OF BIDS, IT WAS DETERMINED THAT CEA HAD SUBMITTED THE LOW RESPONSIVE BID IN THE AMOUNT OF $21,395 OF THE ELEVEN BIDS RECEIVED. WE ARE ADVISED THAT ALL OF THE BIDDERS EXCEPT CEA WERE DISPLAY HOUSES OR EXHIBIT FABRICATORS. THE REMAINING BIDS RANGED FROM APPROXIMATELY $32,600 TO APPROXIMATELY $61,000. EVEN CONSIDERING THE LOW BID OF CEA, THE AVERAGE OF THE ELEVEN BIDS RECEIVED WAS ABOUT $40,800. THE AVERAGE BID OF THE SEVEN FIRMS RECOMMENDED FOR CONSIDERATION, AS REPORTED ABOVE, WAS $40,965.66. THE DESIGN CONTRACTOR, GEORGE NELSON & CO; INC; WHICH PREPARED THE SPECIFICATIONS, ESTIMATED THE COST OF THE PROCUREMENT TO BE $41,500.

THE RECORD INDICATES THAT MR. FRANK WOOD, PRESIDENT OF CEA, WAS CONTACTED ON FEBRUARY 20, 1970, AND ASKED IF HE WISHED TO CONSIDER WITHDRAWING HIS BID IN VIEW OF THE GREAT DISPARITY BETWEEN HIS AND THAT OF THE OTHER BIDDERS. MR. WOOD STATED THAT THE OTHER MEMBERS OF HIS ORGANIZATION HAD PREPARED THE ESTIMATES AND THAT HE WOULD CONSULT WITH THEM AND REPLY TO THE TREASURY ON FEBRUARY 24, 1970. MR. WOOD WAS ALSO REQUESTED TO SUPPLY CERTAIN DATA AT THE SAME TIME IF HE WISHED TO HAVE HIS BID CONSIDERED.

ON FEBRUARY 24, 1970, THE TREASURY DEPARTMENT WAS ADVISED THAT CEA DID NOT WISH TO WITHDRAW ITS BID. NO ADDITIONAL DATA WAS RECEIVED. SINCE THE AWARD WAS SCHEDULED FOR THE NEXT DAY, THE CONTRACTING OFFICER CALLED THE CEA OFFICE TO ARRANGE A PREAWARD SURVEY. THE CONTRACTING OFFICER ASKED MR. WOOD IF HE COULD ADVISE WHERE A COMPARABLE TYPE EXHIBIT WHICH WAS PREVIOUSLY PRODUCED BY HIS FIRM COULD BE INSPECTED. MR. WOOD STATED THAT HE COULD NOT FURNISH SUCH INFORMATION BECAUSE THE FIRM HAD NOT DONE ANY WORK COMPARABLE TO THE CONTRACT REQUIREMENT.

WE ARE ADVISED THAT REPRESENTATIVES OF THE TREASURY DEPARTMENT CONDUCTED SURVEYS OF CEA AND GENERAL EXHIBITS, INC. ON FEBRUARY 25, 1970. FOLLOWING THE COMPLETION OF THE PREAWARD SURVEY OF CEA, THE CONTRACTING OFFICER DETERMINED THAT CEA SHOULD NOT BE AWARDED THE CONTRACT BECAUSE IT WAS NOT A RESPONSIBLE BIDDER DUE TO A LACK OF EXPERIENCE AND SKILL IN EXHIBIT FABRICATION. IN THE JUDGMENT OF THE CONTRACTING OFFICER, BASED ON HIS OWN OBSERVATIONS AND THE RECOMMENDATIONS OF THE MEMBERS OF THE PREAWARD SURVEY GROUP, REASONABLE DOUBTS EXISTED AS TO THE ABILITY OF CEA TO PERFORM THE CONTRACT REQUIREMENT IN A COMPETENT MANNER. FURTHER, THE BID OF CEA WAS SO LOW AS TO BE CONSIDERED UNREASONABLE IN THE JUDGMENT OF THE CONTRACTING OFFICER WHEN COMPARED TO THE BIDS OF THE OTHER TEN BIDDERS AND THE ENGINEERING ESTIMATE PREPARED BY THE DESIGN CONTRACTOR.

IN ARRIVING AT HIS DETERMINATION OF NONRESPONSIBILITY, THE CONTRACTING OFFICER WAS GUIDED BY THE PROVISIONS OF FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.310-5 WHICH READ AS FOLLOWS:

"(A) IN ORDER TO QUALIFY AS RESPONSIBLE, A PROSPECTIVE CONTRACTOR MUST, IN THE OPINION OF THE CONTRACTING OFFICER, MEET THE FOLLOWING STANDARDS AS THEY RELATE TO THE PARTICULAR PROCUREMENT UNDER CONSIDERATION:

"(2) HAS THE NECESSARY EXPERIENCE, ORGANIZATION, TECHNICAL QUALIFICATIONS, SKILLS, AND FACILITIES, OR HAS THE ABILITY TO OBTAIN THEM (INCLUDING PROBABLE SUBCONTRACTOR ARRANGEMENTS)."

WE ARE ADVISED THAT THIS DETERMINATION OF NONRESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) SINCE THE AWARD WAS REQUIRED TO BE MADE WITHOUT DELAY. IN ACCORDANCE WITH FPR 1-1.708-2 (A) (1), A STATEMENT OF NONREFERRAL JUSTIFICATION WAS MADE AND A COPY THEREOF WAS FURNISHED TO SBA. ON FEBRUARY 26, 1970, THE CONTRACT WAS AWARDED TO GENERAL EXHIBITS, INC; THE SECOND LOW BIDDER IN THE AMOUNT OF $32,644.51. THE PREAWARD SURVEY REPORTS HAD INDICATED THAT GENERAL EXHIBITS WAS COMPETENT TO PERFORM ON THE CONTRACT REQUIREMENTS. IN A LETTER DATED FEBRUARY 27, 1970, FROM THE DEPARTMENT OF THE TREASURY, YOUR COMPANY WAS ADVISED OF THE REASONS WHY YOUR FIRM'S BID WAS NOT ACCEPTED.

YOU MAINTAIN THAT THE CONTRACTING OFFICER'S DETERMINATION THAT CEA WAS NONRESPONSIBLE WAS ERRONEOUS. ALTHOUGH CERTAIN INFORMATION WAS PRODUCED BY YOU SUBSEQUENT TO THE AWARD OF THE CONTRACT TO GENERAL EXHIBITS WHICH TAKES ISSUE WITH CERTAIN OF THE FINDINGS OF THE PREAWARD SURVEY, WE BELIEVE THAT THE VALIDITY OF THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE JUDGED ON THE BASIS OF THE INFORMATION BEFORE HIM AT THE TIME IT WAS MADE. SEE 47 COMP. GEN. 373, 374 (1968). ADDITION TO THE NEGATIVE PREAWARD SURVEY REPORT ON CEA, THE CONTRACTING OFFICER REPORTS THAT HE HAD SERIOUS DOUBTS THAT CEA'S BID WAS BASED ON SOUND COST ESTIMATES OR THAT CEA CLEARLY UNDERSTOOD THE WORK AND COULD PERFORM THE REQUIREMENTS. THE DETAILED SURVEY REPORT BEFORE THE CONTRACTING OFFICER AT THE TIME HE MADE HIS DECISION REASONABLY SUPPORTS HIS DETERMINATION OF NONRESPONSIBILITY. WE ARE ADVISED THAT NO PREVIOUS EXHIBIT WORK OF THE TYPE REQUIRED WAS SHOWN AND THEREFORE THERE WAS INSUFFICIENT DATA TO EVALUATE THE EXHIBIT FABRICATING CAPABILITIES OF CEA. WE ARE FURTHER ADVISED THAT CEA FACILITIES SEEMED TO LACK ADEQUATE CARPENTRY EQUIPMENT AND NO SPRAY FINISHING CAPABILITY WAS EVIDENT ALTHOUGH ABOUT 80-PERCENT OF THE EXHIBIT ITEMS WOULD REQUIRE PAINT SPRAYING.

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 (1958).

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, THE ADVERSE FINDINGS OF THE CONTRACTING OFFICER ARE GENERALLY CONCLUSIVE. 46 COMP. GEN. 371, 372 (1966); 46 ID. 124, 126 (1966); 40 ID. 294 (1960). WE HAVE ALSO HELD 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 CONTRACTING OFFICERS 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.

OUR OFFICE WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF THE CONTRACTING OFFICERS CHARGED WITH THE DUTY AND RESPONSIBILITY OF MAKING SUCH DECISIONS UNLESS THERE IS CLEARLY NO SUBSTANTIAL BASIS FOR THEIR ACTION OR THERE IS EVIDENCE OF BAD FAITH. 45 COMP. GEN. 4 (1965); 43 ID. 257 (1963). HAVE CAREFULLY REVIEWED AND CONSIDERED THE INFORMATION RELIED UPON BY THE CONTRACTING OFFICER IN MAKING THE DETERMINATION THAT CEA WAS NONRESPONSIBLE AND WE FIND NO BASIS UPON WHICH OUR OFFICE WOULD BE JUSTIFIED IN CONCLUDING THAT THERE WAS AN ABUSE OF THE ADMINISTRATIVE DISCRETION EXERCISED. IN VIEW THEREOF, WE MAY NOT PROPERLY OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION THAT CEA WAS NOT RESPONSIBLE FOR PURPOSES OF THIS PROCUREMENT.

YOU HAVE ALSO EXPRESSED CONCERN OVER CEA'S STATUS ON FUTURE PROCUREMENTS. THE DETERMINATION MADE WITH REFERENCE TO THE PROTESTED PROCUREMENT DOES NOT PRECLUDE CONSIDERATION OF CEA ON FUTURE PROCUREMENTS. THE DETERMINATION OF CEA'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR ON FUTURE PROCUREMENTS MUST BE BASED ON THE FACTS AND CIRCUMSTANCES AT THAT TIME.

IN THE CIRCUMSTANCES, THERE IS NO LEGAL BASIS UPON WHICH OUR OFFICE MAY PROPERLY DISTURB THE AWARD MADE TO GENERAL EXHIBITS, INC. ..END :