B-170995, DEC. 1, 1970

B-170995: Dec 1, 1970

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PROTESTANT'S CLAIM THAT LOW OFFEROR'S NOT BEING LISTED ON THE "AIR FORCE TANK CLEANING CONTRACTORS QUALIFIED TEST" AND FAILURE TO SUBMIT A LIST OF EXPERIENCED CREW PERSONNEL AND EQUIPMENT MAKES LOW OFFEROR A NONRESPONSIBLE BIDDER IS UNJUSTIFIED IN LIGHT OF THE FACT THAT THESE SPECIFIC REQUIREMENTS WERE NOT REQUIRED BY THE RFQ AND THE CONTRACTING OFFICER HAD OTHER ADEQUATE INFORMATION (I.E. INC.: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 7. WHICH WAS ISSUED ON NOVEMBER 24. THE RFQ CONTAINED THE FOLLOWING PERTINENT PROVISION: "F-17 DEMONSTRATION OF RESPONSIBILITY: (A) CAUTION TO OFFERORS: THE SUPPLIES AND SERVICES CALLED FOR BY THIS RFQ ARE HIGHLY CRITICAL IN THAT IMPROPER PERFORMANCE WOULD ENDANGER HUMAN LIFE.

B-170995, DEC. 1, 1970

BID PROTEST - BIDDER RESPONSIBILITY DENIAL OF PROTEST OF INDUSTRIAL SERVICE COMPANY, INC., AGAINST THE AWARD OF A CONTRACT FOR A "MOBILE MAINTENANCE UNIT" TO PERFORM ON-SITE CLEANING, RECONDITIONING, ETC., AT CERTAIN AIR FORCE BASES TO MIDWEST MAINTENANCE & CONSTRUCTION COMPANY, LOW OFFEROR. PROTESTANT'S CLAIM THAT LOW OFFEROR'S NOT BEING LISTED ON THE "AIR FORCE TANK CLEANING CONTRACTORS QUALIFIED TEST" AND FAILURE TO SUBMIT A LIST OF EXPERIENCED CREW PERSONNEL AND EQUIPMENT MAKES LOW OFFEROR A NONRESPONSIBLE BIDDER IS UNJUSTIFIED IN LIGHT OF THE FACT THAT THESE SPECIFIC REQUIREMENTS WERE NOT REQUIRED BY THE RFQ AND THE CONTRACTING OFFICER HAD OTHER ADEQUATE INFORMATION (I.E., DOCUMENTATION OF OTHER SIMILAR CONTRACTS SUCCESSFULLY PERFORMED BY LOW OFFEROR AND FAVORABLE RESULTS FROM AN INVESTIGATION BY DEFENSE CONTRACT ADMINISTRATIVE SERVICES OFFICE) ON WHICH TO BASE HIS DETERMINATION OF RESPONSIBILITY.

TO INDUSTRIAL SERVICE COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 7, 1970, CONCERNING YOUR PROTEST UNDER REQUEST FOR QUOTATIONS (RFQ) F09603-70-Q-1141, WHICH WAS ISSUED ON NOVEMBER 24, 1969, FOR SERVICES AND MATERIALS ON A "MOBILE MAINTENANCE UNIT" CONCEPT TO PERFORM ON-SITE CLEANING, RECONDITIONING AND RE-COATING OF REFUELING VEHICLES AT CERTAIN AIR FORCE BASES.

THE RFQ CONTAINED THE FOLLOWING PERTINENT PROVISION:

"F-17 DEMONSTRATION OF RESPONSIBILITY:

(A) CAUTION TO OFFERORS: THE SUPPLIES AND SERVICES CALLED FOR BY THIS RFQ ARE HIGHLY CRITICAL IN THAT IMPROPER PERFORMANCE WOULD ENDANGER HUMAN LIFE. ANY CONTRACTOR RECEIVING AWARD HEREUNDER WILL BE HELD FULLY RESPONSIBLE FOR THE PROPER PERFORMANCE OF ALL THE CONTRACT REQUIREMENTS.

(B) DEMONSTRATION OF ABILITY TO PERFORM: PROSPECTIVE CONTRACTORS SHOULD SUBMIT WITH THEIR QUOTATION DOCUMENTATION THAT DEMONSTRATES AFFIRMATIVELY THEIR ABILITY TO PERFORM THE WORK CALLED FOR IN STRICT ACCORDANCE WITH THE WORK SPECIFICATIONS, TECHNICAL ORDERS, AND THE SCHEDULE HEREOF. FOR THIS PURPOSE, OFFERORS SHOULD SUBMIT (I) QUALIFICATIONS AND EXPERIENCE OF MANAGEMENT AND CREW PERSONNEL (II) EVIDENCE OF PREVIOUS SUCCESSFUL EXPERIENCE OF SIMILAR WORK OF COMPARABLE DIFFICULTY WITHIN THE PAST THREE (3) YEARS, (III) EVIDENCE OF AVAILABILITY OF THE EQUIPMENT, FACILITIES, AND SKILLED PERSONNEL REQUIRED HEREUNDER (IV) A SEQUENTIAL OPERATIONAL PLAN FOR TIME AND METHOD OF PERFORMANCE OF THE MODIFICATION AND THE CLEARING, RECONDITIONING RECOATING SERVICES, (V) A FINANCIAL PLAN DEMONSTRATING AVAILABILITY OF CASH, WORKING CAPITAL, CURRENT INVENTORIES, AND/OR APPROVED CREDIT ARRANGEMENTS, AND (VI), A DETAILED EQUIPMENT LIST, TO INCLUDE A MINIMUM OF THOSE ITEMS REQUIRED IN SECTION I, PARA 4A AND 4B OF APPENDIX 'A', AND MAY INCLUDE SUCH ADDITIONAL EQUIPMENT CONTEMPLATED TO BE FURNISHED. (SUCH LIST SHALL SHOW BRAND NAME OR MAKE AND MODEL IDENTIFICATION; PRESENT CONDITION; WHETHER NEW OR USED; AND WHETHER OWNED OR RENTED, PROVIDED, HOWEVER, THAT RENTED EQUIPMENT, IF CONTEMPLATED, MUST BE SUBSTANTIATED BY CERTIFICATION FROM LEASOR THAT RENTAL/LEASE AGREEMENTS FOR THE ENTIRE PERIOD OF PERFORMANCE WILL BE MAINTAINED AND THAT ANY CANCELLATION SHALL NOT BE EFFECTED WITHOUT 30 DAY PRIOR NOTICE TO THE PROCURING CONTRACTING OFFICE).

(C) PRIOR TO ANY AWARD HEREUNDER, IT WILL BE NECESSARY FOR THE PROSPECTIVE CONTRACTOR TO DEMONSTRATE AFFIRMATIVELY (TOGETHER WITH OTHER REQUIRED QUALIFICATIONS) THE CAPABILITY TO PERFORM STRICTLY IN ACCORDANCE WITH ALL THE REQUIREMENTS OF THE CONTRACT SUFFICIENT TO JUSTIFY A DETERMINATION OF THE CONTRACTOR'S 'RESPONSIBILITY' WITH RESPECT TO THIS CONTRACT AS THAT TERM IS DESCRIBED IN PART 9 OF SECTION I OF THE ARMED SERVICES PROCUREMENT REGULATION. SUCH CAPABILITY MAY MOST READILY BE DEMONSTRATED BY SUBMITTING THE DOCUMENTATION CALLED FOR HEREIN. HOWEVER, FAILURE TO SUBMIT SUCH DOCUMENTATION WITH THE BID/PROPOSAL SHALL NOT RENDER IT NON-RESPONSIVE. THE FURNISHING OF THE DOCUMENTATION AS CALLED FOR HEREIN WILL ENABLE THE CONTRACTING OFFICER MORE READILY TO DETERMINE BIDDER'S/PROPOSER'S RESPONSIBILITY."

TWENTY-EIGHT PROSPECTIVE OFFERORS WERE SOLICITED AND THREE QUOTATIONS WERE RECEIVED ON JANUARY 6, 1970. AFTER FINAL OFFERS WERE SUBMITTED IT WAS DETERMINED THAT MIDWEST MAINTENANCE AND CONSTRUCTION COMPANY (MIDWEST) WAS THE LOW OFFEROR. WITH RESPECT TO THE EXPERIENCE REQUIREMENTS SET FORTH IN SECTION F-17, MIDWEST FURNISHED THE FOLLOWING INFORMATION IN A COVER LETTER WITH ITS PROPOSAL:

"WE HAVE BEEN DOING GOVERNMENT CONTRACTING SINCE 1959. WE HAVE JUST COMPLETED CONTRACT NO. F34650-69-C-0143 FOR TINKER AIR FORCE BASE OKLA.

WE HAVE A CONTRACT NO. DAAG-68-C-0012 WITH GRANITE CITY ARMY DEPOT, GRANITE CITY ILLINOIS WHICH SHOULD BE COMPLETED BY 30 APRIL 1970. WE HAVE A CURRENT CONTRACT #DAAK01-69-D-B045 WITH U.S. ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI WHICH NO WORK HAS GENERATED YET.

IN REFERENCE TO ITEM F-17 (B) DEMONSTRATION OF ABILITY TO PERFORM. PREVIOUS DONE THIS SAME TYPE OF CONTRACT THRU TINKER AFB IN 1961 & 1962, CONTRACT NO. AF34(601)-10119 WHICH CALLED FOR TWO MOBILE UNITS WHICH WE STILL HAVE AND IS AVAILABLE FOR IMMEDIATE USE AND THEIR IS NO PROBLEM FOR US TO GET THREE MORE MOBILE UNITS FOR THIS CONTRACT.

WE CARRY $100,000.00/300,000.00/50,000.00 GENERAL AND AUTOMOBILE LIABILITY INSURANCE AND $100,000.00 EMPLOYERS LIABILITY.

ENCLOSED ARE 4 COPIES OF CONTRACT PROPOSAL, 4 COPIES OF AMENDMENT, AND 1 COPY OF FORM DD-633."

PURSUANT TO THIS INFORMATION THE CONTRACTING OFFICER REQUESTED THE DEFENSE CONTRACT ADMINISTRATIVE SERVICES OFFICE (DCASO) AT OKLAHOMA CITY TO FURTHER INVESTIGATE WHETHER MIDWEST WAS A RESPONSIBLE OFFEROR FOR PURPOSES OF THIS PROCUREMENT. DCASO SUBMITTED A FAVORABLE REPORT TO THE CONTRACTING OFFICER CONCERNING MIDWEST'S TECHNICAL AND PRODUCTION ABILITIES, FACILITIES AND EQUIPMENT, PURCHASING AND SUBCONTRACTING METHODS, TRANSPORTATION, AND PAST AND PRESENT PERFORMANCE RECORDS. VIEW OF THE FAVORABLE REPORT THE CONTRACTING OFFICER DETERMINED THAT MIDWEST WAS RESPONSIBLE FOR PURPOSES OF THE PROCUREMENT AND HE PREPARED TO MAKE AN AWARD TO THAT CONCERN.

ON APRIL 17, 1970, THE RECORD INDICATES THAT YOU CALLED THE PROCURING ACTIVITY TO ASCERTAIN THE STATUS OF THE PROCUREMENT AND THAT YOUR COMPANY WAS ADVISED THAT THE ACTIVITY HOPED TO MAKE AN AWARD UNDER THE PROCUREMENT IN THE NEAR FUTURE. THE BUYER MAINTAINS THAT YOU DID NOT STATE THAT YOU WERE MAKING AN ORAL PROTEST, AND THEREFORE, YOUR INQUIRY WAS NOT PROCESSED IN ACCORDANCE WITH THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) GOVERNING ORAL PROTESTS. THE CONTRACTING OFFICER ALSO STATES THAT AN AWARD TO MIDWEST WAS APPROVED SHORTLY AFTER YOUR CALL ON APRIL 17. APRIL 20, A FORMAL AWARD WAS CONCLUDED WITH MIDWEST AND YOUR CONCERN WAS NOTIFIED OF SUCH AWARD IN ACCORDANCE WITH ASPR 3-50893(A).

THE ESSENTIAL BASIS OF YOUR PROTEST IS THAT MIDWEST DID NOT MEET THE REQUIREMENTS OF SECTION F-17 AT THE DATE SET FOR RECEIPT OF PROPOSALS. THIS REGARD YOU STATE THAT THE RFQ REQUIRES THAT A CONCERN BE ON THE "AIR FORCE TANK CLEANING CONTRACTORS QUALIFIED TEST" TO BE ELIGIBLE FOR AWARD AND THAT MIDWEST IS NOT ON SUCH LIST. FURTHERMORE, YOU STATE THAT MIDWEST FAILED TO SUBMIT A LIST OF EXPERIENCED CREW PERSONNEL AND EQUIPMENT AS REQUIRED BY THE SECTION. IN VIEW THEREOF, YOU MAINTAIN THAT MIDWEST'S CONTRACT SHOULD BE CANCELLED.

IN RESPONSE TO YOUR ALLEGATIONS THE CONTRACTING OFFICER HAS NOTED THAT THE RFQ DOES NOT REQUIRE THE SUCCESSFUL OFFEROR TO BE ON THE "AIR FORCE TANK CLEANING CONTRACTORS QUALIFIED TEST." FURTHERMORE, HE REPORTS THAT SECTION F-17(C) OF THE RFQ SPECIFICALLY STATES THAT FAILURE TO SUBMIT ALL THE DOCUMENTATION PRESCRIBED UNDER SECTION F-17 WOULD NOT RENDER A PROPOSAL NON-RESPONSIVE. ACCORDINGLY, AND SINCE THE DCASO SURVEY, QUOTED ABOVE, INDICATED THAT MIDWEST MET ALL THE REQUIREMENTS OF SECTION F-17, THE CONTRACTING OFFICER RECOMMENDS THAT YOUR PROTEST BE DENIED.

THE PURPOSE OF SECTION F-17 IS TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THE RESPONSIBILITY OF THE OFFEROR; THAT IS, HIS ABILITY, FINANCIALLY AND TECHNICALLY, TO CONFORM TO THE REQUIREMENTS OF THE CONTRACT. THE GENERAL RULE IS THAT SUCH A DETERMINATION IS TO BE BASED UPON ALL INFORMATION AVAILABLE TO THE CONTRACTING OFFICER AT THE TIME OF AWARD, RATHER THAN UPON ONLY SUCH INFORMATION AS IS SUBMITTED WITH THE BID. 41 COMP. GEN. 302 (1961); 39 ID. 247 (1959). WE FIND NOTHING IN THE INSTANT RFQ WHICH WOULD REQUIRE OR JUSTIFY A DIFFERENT CONCLUSION, AND IT IS THEREFORE OUR OPINION THAT THE DETERMINATION OF MIDWEST'S RESPONSIBILITY COULD PROPERLY INCLUDE CONSIDERATIONS OF ALL INFORMATION RESULTING FROM THE DCASO SURVEY.

SINCE THE DATA OBTAINED FROM THE DCASO SURVEY INDICATES THAT THE CONTRACTOR MET THE EXPERIENCE AND PERSONNEL REQUIREMENTS SET FORTH IN SECTION 17 OF THE RFP, AND SINCE THE SURVEY FURTHER INDICATED THE CONTRACTOR COULD PROCURE ALL ADDITIONAL EQUIPMENT WHICH WOULD BE NEEDED FOR PERFORMANCE, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER ERRONEOUSLY DETERMINED THAT MIDWEST WAS A RESPONSIBLE OFFEROR FOR THE PROCUREMENT.

WITH RESPECT TO YOUR ALLEGATION THAT THE PROCURING ACTIVITY DID NOT PROCESS THE ORAL PROTEST WHICH YOU ALLEGEDLY MADE PRIOR TO AWARD, THE ACTIVITY, AS NOTED ABOVE, MAINTAINS THAT YOU DID NOT STATE YOU WERE MAKING AN ORAL PROTEST AND THAT YOUR CALL WAS NOT SO INTERPRETED. IN DISPUTES OF THIS NATURE IT IS THE LONG-ESTABLISHED PRINCIPLE OF THIS OFFICE TO ACCEPT THE ADMINISTRATIVE REPORT CONCERNING THE CIRCUMSTANCES IN QUESTION, IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. WE DO NOT FIND SUCH EVIDENCE IN THE PRESENT RECORD.

FOR REASONS SET FORTH ABOVE YOUR PROTEST IS DENIED.