B-169324, MAY 27, 1970

B-169324: May 27, 1970

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MUST BE DENIED PROTEST SINCE UNDER 41 U.S.C. 253 (B) AWARDS ARE MADE TO RESPONSIBLE BIDDER WHOSE BID IS MOST ADVANTAGEOUS TO GOVERNMENT. SINCE RESPONSIBILITY DETERMINATION IS VESTED IN CONTRACTING AGENCY WHOSE JUDGMENT. GAO WILL NOT DISTURB ABSENT EVIDENCE SUCH DETERMINATION WAS BASED UPON BAD FAITH. WHEREAS HERE DETERMINATION WAS BASED UPON PREAWARD SURVEY FINDING AWARDEE CAPABLE OF CONTRACT PERFORMANCE. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 11. C. THE SOLICITATION WAS ISSUED FEBRUARY 16. WAS FOR A REQUIREMENTS CONTRACT FOR THE CLEANING. ALLIED WAS LOW BIDDER UNDER GROUP "A. CONTIGUOUS AREA) AND YOUR FIRM WAS NEXT LOW BIDDER. YOU QUESTION WHETHER ALLIED IS CAPABLE OF PERFORMING IN-PLANT RUG CLEANING SERVICES AS REQUIRED BY THE SPECIFICATIONS AND WHETHER ALLIED IS FINANCIALLY RESPONSIBLE FOR THE PURPOSES OF THIS PROCUREMENT.

B-169324, MAY 27, 1970

BIDDERS--QUALIFICATIONS--ADMINISTRATIVE DETERMINATIONS--EVIDENCE UNSUCCESSFUL BIDDER PROTESTING AWARD OF REQUIREMENTS CONTRACT, SPECIFICALLY ALLEGING LOW BIDDER LACKS FACILITIES NECESSARY TO COMPLY WITH SOME RUG CLEANING REQUIREMENTS OF SPECIFICATIONS, MUST BE DENIED PROTEST SINCE UNDER 41 U.S.C. 253 (B) AWARDS ARE MADE TO RESPONSIBLE BIDDER WHOSE BID IS MOST ADVANTAGEOUS TO GOVERNMENT, ALL FACTORS CONSIDERED, AND SINCE RESPONSIBILITY DETERMINATION IS VESTED IN CONTRACTING AGENCY WHOSE JUDGMENT. GAO WILL NOT DISTURB ABSENT EVIDENCE SUCH DETERMINATION WAS BASED UPON BAD FAITH, FRAUD, COLLUSION OR LACK OF FACTUAL BASIS, WHEREAS HERE DETERMINATION WAS BASED UPON PREAWARD SURVEY FINDING AWARDEE CAPABLE OF CONTRACT PERFORMANCE. SEE COMP. GEN. DECS. CITED.

TO SERVICON, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1970, PROTESTING THE AWARD OF A CONTRACT TO ALLIED ENTERPRISES, INC. (ALLIED), UNDER GROUP "A" OF SOLICITATION NO. WA-AO-R-2158-3-10-70, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, REGION 3, WASHINGTON, D. C.

THE SOLICITATION WAS ISSUED FEBRUARY 16, 1970, AND WAS FOR A REQUIREMENTS CONTRACT FOR THE CLEANING, REPAIR, ALTERATION, AND INSTALLATION OF RUGS AND CARPETS, INCLUDING CARPET UNDERLAYMENTS, FOR VARIOUS SERVICE AREAS WITHIN THE REGION FOR THE PERIOD JUNE 1, 1970 (OR DATE OF AWARD, IF LATER), THROUGH MAY 31, 1971. OF THE BIDS RECEIVED FROM 12 BIDDERS, ALLIED WAS LOW BIDDER UNDER GROUP "A," CLEANING OF RUGS AND CARPETS, AS TO AREAS 7 (NORFOLK, VIRGINIA, AND CONTIGUOUS AREA) AND 8 (NEWPORT NEWS, VIRGINIA, AND CONTIGUOUS AREA) AND YOUR FIRM WAS NEXT LOW BIDDER.

IN YOUR LETTER OF MAY 4, 1970, YOU QUESTION WHETHER ALLIED IS CAPABLE OF PERFORMING IN-PLANT RUG CLEANING SERVICES AS REQUIRED BY THE SPECIFICATIONS AND WHETHER ALLIED IS FINANCIALLY RESPONSIBLE FOR THE PURPOSES OF THIS PROCUREMENT. YOU ALLEGE SPECIFICALLY THAT ALLIED DOES NOT HAVE THE FACILITIES TO COMPLY WITH THE RUG CLEANING REQUIREMENTS OF SECTION 24 (C) OF THE SPECIFICATIONS.

AN EXAMINATION OF ALLIED'S PREAWARD PLANT FACILITIES SURVEY SHOWS THAT ITS PAST PERFORMANCE RECORD WAS OUTSTANDING AND THAT ITS PRODUCTION CAPACITY WAS ADEQUATE FOR THE WORK CONTEMPLATED IN THE INVITATION. IT WAS FOUND TO BE CAPABLE OF PERFORMING THE CONTRACT WORK AS TO SPACE, PERSONNEL, AND EQUIPMENT.

UNDER SECTION 24 (C) OF THE SPECIFICATIONS, IT IS PROVIDED AS FOLLOWS:

"CLEANING AT CONTRACTOR'S PLANT:

"RUGS OR CARPETS SHALL BE THOROUGHLY AND SAFELY CLEANED BY PROCESSING THROUGH A RUG-DUSTING MACHINE TO REMOVE ALL IMBEDDED FOREIGN MATTER. RUGS AND CARPETS SHALL BE CLEANED WITH A DRY CLEANING SOLVENT OR POWDER OR BY THE STEAM PROCESS, OR CLEANED AND SHAMPOOED WITH A COMPLETELY SYNTHETIC DETERGENT AND THOROUGHLY RINSED. THE CLEANING AND SHAMPOOING PROCESS SHALL REMOVE ALL VISIBLE DIRT, GRIME AND SOILED SPOTS FROM RUGS OR CARPETS LEAVING THEM FREE FROM RESIDUAL FOREIGN MATTER. STAINS SHALL BE REMOVED IF IT CAN BE ACCOMPLISHED BY AN ACCEPTED CLEANING METHOD WHICH WILL NOT DAMAGE THE SERVICEABILITY OR MAR THE APPEARANCE OF THE RUG OR CARPET. RUGS OR CARPETS SHALL BE THOROUGHLY DRIED. CLEANING AND SHAMPOOING SHALL NOT CAUSE MORE THAN A FIVE (5) PERCENT SHRINKAGE OF THE RUG OR CARPET IN EITHER WIDTH OR LENGTH, EXCEPT THAT FOR AXMINSTER RUGS OR CARPET NOT MORE THAN TEN (10) PERCENT WILL BE PERMITTED IN LENGTH AND IN ALL CASES, IT SHALL NOT ADVERSELY AFFECT APPEARANCE OR DURABILITY. CLEANING SHALL INCLUDE SIZING. THE CONTRACTOR IS FULLY RESPONSIBLE FOR THE CORRECTION OF ANY DAMAGE OR FAULTY WORKMANSHIP CAUSED BY THE CONTRACTOR'S METHOD OR WORKMEN."

IT WILL BE SEEN THAT THE RUG DUSTING OPERATION DOES NOT SPECIFY OR REQUIRE ANY PARTICULAR TYPE OF EQUIPMENT BUT ONLY THAT THE PROCESS BE SUFFICIENT TO REMOVE ALL DIRT AND IMBEDDED FOREIGN MATERIAL. THE CONTRACTOR'S EQUIPMENT IN THIS INSTANCE HAS BEEN FOUND ADEQUATE IN THIS REGARD. MOREOVER, RUGS MAY BE EITHER DRY CLEANED OR BY THE STEAM PROCESS, OR CLEANED AND SHAMPOOED WITH A COMPLETELY SYNTHETIC DETERGENT AND THOROUGHLY RINSED. RINSING IS ONLY REQUIRED IF THE RUG IS SHAMPOOED BY A SYNTHETIC DETERGENT AND RUG SIZING WOULD APPEAR TO BE REQUIRED THEREUNDER IF THE RUG IS CLEANED BY DETERGENTS AND RINSED. BASED UPON ITS PREAWARD SURVEY, IT WAS CONCLUDED THAT ALLIED WAS QUALIFIED TO PERFORM IN-PLANT RUG CLEANING IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF SECTION 24 (C). THE QUESTION WHETHER ALLIED WILL, IN FACT, COMPLY FULLY WITH THE ADVERTISED SPECIFICATIONS IS FOR RESOLUTION BY THE PROCUREMENT ACTIVITY WHICH IS CHARGED WITH THE DUTY OF ADMINISTERING ITS CONTRACTS IN ACCORDANCE WITH THEIR TERMS AND CONDITIONS.

UNDER 41 U.S.C. 253 (B) AWARDS AFTER FORMAL ADVERTISING ARE REQUIRED TO BE MADE TO THAT "RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE THE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED." THE DETERMINATION WHETHER A BIDDER IS A RESPONSIBLE PROSPECTIVE CONTRACTOR IS VESTED IN THE CONTRACTING AGENCY AND WE DO NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY IN THE ABSENCE OF CONVINCING EVIDENCE OF FRAUD, COLLUSION, BAD FAITH, OR LACK OF PROPER FACTUAL BASIS. ON REVIEW OF THE RECORD, WE FIND NO BASIS TO DISAGREE WITH THE ADMINISTRATIVE DETERMINATION OF RESPONSIBILITY. SEE 46 COMP. GEN. 371 (1966); B-163459, APRIL 19, 1968, AND B-166583, JUNE 23, 1969.

SINCE THE AWARD WAS MADE TO ALLIED AS THE LOWEST, RESPONSIVE, RESPONSIBLE BIDDER UNDER THE INVITATION, YOUR PROTEST MUST BE DENIED.

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