B-169317, JUN. 15, 1970
Highlights
CONWAY: REFERENCE IS MADE TO YOUR LETTER OF MAY 21. THE DECISION DENIED MURPHY'S CONTENTION THAT IT IS ENTITLED TO AN AWARD AS A RESPONSIBLE PROSPECTIVE CONTRACTOR SINCE THE RECORD ESTABLISHED THAT A SUBSTANTIAL BASIS EXISTED FOR THE DETERMINATION THAT MURPHY LACKED THE TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB. FURNISHES NO FACTUAL INFORMATION OR EVIDENCE THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS IN ERROR AS NOT SUPPORTED BY THE PAST HISTORY OF POOR CONTRACT PERFORMANCE. WE HAVE CAREFULLY REVIEWED THE RECORDS PERTAINING TO MURPHY'S PAST PERFORMANCE ON VARIOUS JOB ORDERS OR CONTRACTS AND IT IS REPLETE WITH INSTANCES OF REFUSALS TO FOLLOW CONTRACT SPECIFICATIONS AND GROSS INATTENTIONS TO DIRECTIONS FROM AUTHORIZED PERSONNEL OF THE ARMY TO CORRECT DEFICIENCIES AND TO MEET CONTRACT SCHEDULES.
B-169317, JUN. 15, 1970
TO MR. JOHN C. CONWAY:
REFERENCE IS MADE TO YOUR LETTER OF MAY 21, 1970, REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 14, 1970, TO MURPHY MARINE RAILWAY, INC; WHICH DENIED THE CORPORATION'S PROTEST UNDER INVITATION FOR BIDS NO. DAAK01-70-B-0192, ISSUED BY THE U. S. ARMY MOBILITY EQUIPMENT COMMAND, HAMPTON ROADS PROCUREMENT DETACHMENT, NORFOLK, VIRGINIA.
THE DECISION DENIED MURPHY'S CONTENTION THAT IT IS ENTITLED TO AN AWARD AS A RESPONSIBLE PROSPECTIVE CONTRACTOR SINCE THE RECORD ESTABLISHED THAT A SUBSTANTIAL BASIS EXISTED FOR THE DETERMINATION THAT MURPHY LACKED THE TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB. YOUR LETTER OF MAY 21, 1970, FURNISHES NO FACTUAL INFORMATION OR EVIDENCE THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS IN ERROR AS NOT SUPPORTED BY THE PAST HISTORY OF POOR CONTRACT PERFORMANCE.
WE HAVE CAREFULLY REVIEWED THE RECORDS PERTAINING TO MURPHY'S PAST PERFORMANCE ON VARIOUS JOB ORDERS OR CONTRACTS AND IT IS REPLETE WITH INSTANCES OF REFUSALS TO FOLLOW CONTRACT SPECIFICATIONS AND GROSS INATTENTIONS TO DIRECTIONS FROM AUTHORIZED PERSONNEL OF THE ARMY TO CORRECT DEFICIENCIES AND TO MEET CONTRACT SCHEDULES.
THE CONTRACTING OFFICER BASED HIS DETERMINATION OF NONRESPONSIBILITY ON MURPHY'S DOCUMENTED PAST UNSATISFACTORY PERFORMANCE RECORD. IT WAS FOUND THAT MURPHY FAILED TO APPLY THE NECESSARY TENACITY OR PERSEVERANCE TO DO AN ACCEPTABLE JOB. PURSUANT TO PARAGRAPH 1 903.1(III) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE CONTRACTING OFFICER DETERMINED MURPHY TO BE NONRESPONSIBLE AND TRANSMITTED A COPY OF HIS FINDINGS TO THE SMALL BUSINESS ADMINISTRATION (SBA) AS REQUIRED BY ASPR 1-705.4(C)(VI), AS REVISED BY DEFENSE DEPARTMENT CIRCULAR NO. 75, DECEMBER 10, 1969. SINCE THE HEAD OF THE PROCUREMENT ACTIVITY APPROVED THE BASES OF THE CONTRACTING OFFICER'S FINDING, THE MATTER OF MURPHY'S COMPETENCY WAS NOT REFERRED TO SBA FOR CERTIFICATE OF COMPETENCY CONSIDERATION.
THE DETERMINATION OF THE QUALIFICATIONS AND RESPONSIBILITY OF A PROPOSED CONTRACTOR IS PRIMARILY THE FUNCTION OF THE PROCUREMENT AGENCY (37 COMP. GEN. 430 (1957); ID. 798 (1958); 38 ID. 248 (1958); 39 ID. 468 (1959); ID. 705, 711 (1960); 43 ID. 228 (1963)), AND SUCH DETERMINATION WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF SUBSTANTIAL EVIDENCE. 36 COMP. GEN. 42 (1956); 37 ID. 430 (1957); ID. 798 (1958); 38 ID. 131; ID. 778 (1959). THIS RULE HAS BEEN APPLIED WHERE THE EVIDENCE OF A DEFICIENT MOTIVATION TO DO AN ACCEPTABLE JOB CONSISTS OF MINOR FAULTS WHICH CUMULATIVELY RESULT IN UNDULY INCREASING THE GOVERNMENT'S BURDEN OF ADMINISTERING THE CONTRACT. 43 COMP. GEN. 257, 263 (1963).
ON THE RECORD BEFORE OUR OFFICE, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER'S NEGATIVE DETERMINATION CONCERNING MURPHY'S TENACITY OR PERSEVERANCE WAS BASED ON OTHER THAN SUBSTANTIAL EVIDENCE.
ACCORDINGLY, OUR DECISION OF MAY 14, 1970, IS AFFIRMED.