B-169751, JUN. 29, 1970

B-169751: Jun 29, 1970

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THERE IS NO BASIS FOR LEGAL OBJECTION TO CONTRACTING OFFICER'S FINDING THAT LOW BIDDER WAS NOT "RESPONSIBLE. WHERE RECORD INCLUDED FINDINGS TO THAT EFFECT FROM REVIEW OF REFERENCES AS WELL AS FROM PROCURING ACTIVITY'S OWN VIEWING OF BIDDER'S WORK SINCE CONTRACTING OFFICER IS PERMITTED CONSIDERABLE RANGE OF DISCRETION IN DETERMINING RESPONSIBILITY UNDER FEDERAL PROCUREMENT REGULATIONS 1-310-4-6. TO SELECT STUDIO: THIS IS IN REPLY TO YOUR TELEGRAM OF MAY 8. THE FOREST SERVICE HAS ADVISED THAT THE SLIDE TAPE PROGRAMS WILL BE USED PRIMARILY TO TRAIN. THE CRITICAL ASPECTS OF THE DEVELOPMENT OF A SLIDE-TAPE PROGRAM ARE CONSIDERED TO BE THE ART SLIDES. HIS DETERMINATION STATES IN PART THAT YOUR FIRM HAS BEEN IN BUSINESS FOR 15 MONTHS AND IS OWNER OPERATED AND THAT NEITHER THE OWNER (WHO PROPOSES TO DO THE ART WORK.

B-169751, JUN. 29, 1970

BIDDERS--QUALIFICATIONS--ADMINISTRATIVE DETERMINATIONS--FINALITY ABSENT BAD FAITH OR COMPLETE LACK OF SUBSTANTIAL GROUNDS FOR DETERMINATION, THERE IS NO BASIS FOR LEGAL OBJECTION TO CONTRACTING OFFICER'S FINDING THAT LOW BIDDER WAS NOT "RESPONSIBLE," I.E; LACKED EXPERIENCE AND EXPERTISE TO PERFORM SOLICITED SERVICES WITHIN NECESSARY TIME, WHERE RECORD INCLUDED FINDINGS TO THAT EFFECT FROM REVIEW OF REFERENCES AS WELL AS FROM PROCURING ACTIVITY'S OWN VIEWING OF BIDDER'S WORK SINCE CONTRACTING OFFICER IS PERMITTED CONSIDERABLE RANGE OF DISCRETION IN DETERMINING RESPONSIBILITY UNDER FEDERAL PROCUREMENT REGULATIONS 1-310-4-6, WHICH REQUIRES AFFIRMATIVE DETERMINATION OF RESPONSIBILITY BEFORE AWARD. SEE COMP. GEN. DEC. AND CT. CASES CITED.

TO SELECT STUDIO:

THIS IS IN REPLY TO YOUR TELEGRAM OF MAY 8, 1970, AND SUPPORTING LETTER OF MAY 19, 1970, PROTESTING THE PROPOSED REJECTION OF YOUR LOW BID SUBMITTED UNDER FOREST SERVICE SOLICITATION FS-10-70.

THE SOLICITATION REQUESTED BIDS ON THREE SLIDE SYNCHRO TAPE PROGRAMS ON DIFFERENT SUBJECT MATTERS CONSISTING OF SCRIPTS, ILLUSTRATIVE PHOTO SLIDES, NARRATIVE TAPE RECORDINGS, AND SECONDARY LESSON PLANS. THE FOREST SERVICE HAS ADVISED THAT THE SLIDE TAPE PROGRAMS WILL BE USED PRIMARILY TO TRAIN, INFORM AND MOTIVATE FOREST SERVICE EMPLOYEES. THE CRITICAL ASPECTS OF THE DEVELOPMENT OF A SLIDE-TAPE PROGRAM ARE CONSIDERED TO BE THE ART SLIDES, WHICH MUST BE DONE CREATIVELY TO MOTIVATE VIEWERS AND HOLD THEIR ATTENTION, AND THE DEVELOPMENT AND WRITING OF THE NARRATIVE SCRIPTS, WHICH MUST BE BASED ON A SOUND KNOWLEDGE OF AUDIO-VISUAL AND TRAINING TECHNIQUES.

THE RECORD ESTABLISHES THAT THE CONTRACTING OFFICER HAS DETERMINED THAT YOUR FIRM CANNOT REASONABLY BE EXPECTED TO COMPLY WITH CONTRACT REQUIREMENTS IN A TIMELY MANNER. HIS DETERMINATION STATES IN PART THAT YOUR FIRM HAS BEEN IN BUSINESS FOR 15 MONTHS AND IS OWNER OPERATED AND THAT NEITHER THE OWNER (WHO PROPOSES TO DO THE ART WORK, ARRANGEMENT OF SLIDES, AND SCRIPT WRITING) NOR THE FIRM HAS HAD EXPERIENCE IN DEVELOPING AND PRODUCING, FROM BEGINNING TO END, SLIDE-TAPE PROGRAMS IN WHICH SCRIPT WRITING, AUDIO-VISUAL WORK, AND CREATIVE GRAPHIC ARTWORK WERE PERFORMED BY THEM. INFORMATION AS TO THE LACK OF REQUISITE EXPERIENCE WAS BASED UPON DISCUSSIONS WITH SELECT STUDIO'S OWNER'S PRIOR EMPLOYEES, SUPERVISORS, AND ASSOCIATES AND UPON A REVIEW OF THE REFERENCES SUPPLIED BY YOU, ALL OF WHICH INDICATE THAT YOU HAVE COORDINATED SLIDE-TAPE PROGRAMS INVOLVING ART WORK, SCRIPT WRITING AND AUDIO-VISUAL WORK PERFORMED BY OTHERS BUT NOT YOUR OWN. IT IS FURTHER REPORTED THAT AT A CONFERENCE WITH THE CONTRACTING OFFICER AND OTHER FOREST SERVICE REPRESENTATIVES YOU PRESENTED NUMEROUS EXAMPLES OF YOUR COMMERCIAL ARTWORK, EXHIBITS, AND DISPLAYS, BUT THE CONTRACTING OFFICER STATES THAT NONE OF THESE EXAMPLES DEMONSTRATED EXPERIENCE OR ABILITY TO PERFORM THE TASKS NECESSARY TO PRODUCE SATISFACTORY SLIDE-TAPE PROGRAMS. DURING A DISCUSSION WITH FOREST SERVICE REPRESENTATIVES RELATING TO SCRIPT WRITING, YOU APPARENTLY INDICATED TO THEM YOUR INTENTION TO RELY HEAVILY ON FOREST SERVICE PERSONNEL IN THE WRITING OF THE NARRATIVE SCRIPT, TO AN EXTENT NOT CONTEMPLATED BY THE INVITATION. ACCORDINGLY, THE CONTRACTING OFFICER DECIDED THAT YOUR FIRM DID NOT MEET THE MANDATORY MINIMUM STANDARDS OF A "RESPONSIBLE PROSPECTIVE CONTRACTOR" REQUIRED BY THE PROCUREMENT REGULATIONS.

YOU DISAGREE WITH THIS JUDGMENT REGARDING THE ADEQUACY OF YOUR SKILLS AND EXPERIENCE, STATING THAT YOU FURNISHED REFERENCES AND A DETAILED BREAKDOWN OF YOUR BID TO INDICATE YOUR UNDERSTANDING OF THE GOVERNMENT'S PROJECTS. YOU FURTHER STATE THAT AT A MEETING CALLED BY FOREST SERVICE REPRESENTATIVES SUBSEQUENT TO BID OPENING, ONE SUCH REPRESENTATIVE ANNOUNCED AT THE OUTSET HIS CONCLUSION THAT, BASED ON THE INFORMATION YOU PREVIOUSLY SUPPLIED, YOU HAD NEITHER THE ABILITY NOR EXPERIENCE NECESSARY FOR DEVELOPING OR PRODUCING SLIDE-TAPE PROGRAMS. YOU APPARENTLY WERE EXPECTED TO CARRY THE BURDEN OF PROVING THAT SUCH A CONCLUSION WAS ERRONEOUS AND YOU SUBMIT THAT THESE REMARKS CAUSED YOU TO BECOME DEFENSIVE AND HAD A NEGATIVE IMPACT ON OTHERS IN ATTENDANCE, INCLUDING THE CONTRACTING OFFICER.

IN DETERMINING WHETHER A PROSPECTIVE CONTRACTOR IS CAPABLE OF PERFORMING REQUIRED SERVICES, CONTRACTING OFFICERS ARE GUIDED BY THE RULES SET OUT IN THE FEDERAL PROCUREMENT REGULATIONS (FPR). IN THIS REGARD, FPR 1-1.310-4 PROVIDES THAT CONTRACTS BE AWARDED ONLY TO "RESPONSIBLE PROSPECTIVE CONTRACTORS" AND 1-1.310-6 REQUIRES AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY AS A PREREQUISITE TO AWARD. THE FPR ALSO PRESCRIBES CERTAIN MINIMUM STANDARDS FOR "RESPONSIBLE PROSPECTIVE CONTRACTORS"; SECTION 1-1.310-5 REQUIRES, IN PART, THE NECESSARY EXPERIENCE, ORGANIZATION, TECHNICAL QUALIFICATIONS AND SKILLS, OR THE ABILITY TO OBTAIN THEM.

IT IS THE FUNCTION AND WITHIN THE JURISDICTION OF THIS OFFICE TO INSURE THAT GOVERNMENT PROCUREMENTS ARE MADE IN ACCORDANCE WITH APPLICABLE LAW, AND THIS NECESSARILY INVOLVES REVIEW OF ADMINISTRATIVE DISCRETION TO THE EXTENT NECESSARY TO SEE THAT IT HAS BEEN EXERCISED WITHIN PROPER LIMITS. IN CASES INVOLVING A QUESTION OF BIDDER,S RESPONSIBILITY, IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT THE CONTRACTING OFFICER MUST BE PERMITTED A CONSIDERABLE RANGE OF DISCRETION IN DETERMINING RESPONSIBILITY. SUCH DISCRETION HAS ALSO BEEN RECOGNIZED BY THE COURTS. SEE FRIEND V LEE, 221 F.2D 96 AND O'BRIEN V CARNEY, 6 F. SUPP. 761. CONSEQUENTLY, IN THE ABSENCE OF CLEAR EVIDENCE OF BAD FAITH OR A COMPLETE LACK OF SUBSTANTIAL GROUNDS FOR THE ADMINISTRATIVE DETERMINATION, THERE IS NO BASIS FOR LEGAL OBJECTION. 39 COMP. GEN. 705 (1960).

ON THE RECORD BEFORE US WE FIND THAT YOU WERE PROVIDED REASONABLE OPPORTUNITY TO ESTABLISH YOUR ABILITY TO PERFORM THE SUBJECT CONTRACT TO THE SATISFACTION OF THE CONTRACTING OFFICER, AND THAT HIS CONCLUSION THAT YOU FAILED TO SHOW ADEQUATE EXPERIENCE IN DEVELOPING AND PRODUCING FROM BEGINNING TO END, SLIDE-TAPE PROGRAMS AS DISCUSSED ABOVE CANNOT BE CONSIDERED UNREASONABLE IN THE LIGHT OF THE INFORMATION RECEIVED. SINCE IT IS THE RESPONSIBILITY OF THE CONTRACTING OFFICER TO MAKE AN AFFIRMATIVE FINDING THAT A PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE STANDARDS PRESCRIBED BY THE REGULATIONS, THE BURDEN IS UPON EACH BIDDER TO FURNISH SUCH INFORMATION AND EVIDENCE OF RESPONSIBILITY AS NECESSARY TO ENABLE THE CONTRACTING OFFICER TO MAKE SUCH DETERMINATION.