B-171634, MAR 11, 1971

B-171634, MAR 11, 1971

BID PROTEST - BIDDER RESPONSIBILITY DENIAL OF PROTEST BY THE JOINT VENTURE, LOW BIDDER, AGAINST CONTRACT AWARD TO SECOND LOW BIDDER, THOMAS GUILI OVERSEAS, INC., UNDER RFP ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND FOR THE CONSTRUCTION OF VARIOUS WAREHOUSES, MAGAZINES AND SUPPORTING FACILITIES ON JOHNSON ISLAND. ALTHOUGH PROTESTANT WAS NOT INCLUDED ON THE LIST OF FIRMS WITH PROVEN EXPERIENCE AND RECORDS OF ACCOMPLISHMENT, AND THE CONTRACT WAS TO BE NEGOTIATED PURSUANT TO 10 U.S.C. 2304(A)(2) BECAUSE OF URGENCY, THE RFP WAS ISSUED TO PROTESTANT UPON REQUEST. HOWEVER, PROPOSER'S WERE ADVISED TO SUBMIT THERE BEST OFFERS PLUS SUFFICIENT PROOF THAT THEY CAN UNDERTAKE THE PROJECT AND COMPLETE IT WITHIN THE TIME FRAME SPECIFIED. THE FAILURE TO SUBMIT INFORMATION ESTABLISHING PROTESTANT'S ABILITY IS A MATTER OF RESPONSIBILITY AND ON THE PRESENT RECORD, THE DETERMINATION TO REJECT THE LOW OFFER APPEARS TO HAVE BEEN PROPER.

TO SANTA FE ENGINEERS, INC. AND MATICH BROTHERS:

REFERENCE IS MADE TO YOUR TELEGRAM DATED DECEMBER 31, 1970, PROTESTING THE AWARD OF A CONTRACT TO THOS. GIULI OVERSEAS, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. N62471-71-R-0093, ISSUED BY THE OFFICER IN CHARGE OF CONSTRUCTION (OICC), NAVAL FACILITIES ENGINEERING COMMAND (NFEC), CONTRACTS, MID PACIFIC, FPO SAN FRANCISCO. YOU CONTEND THAT SINCE THE JOINT VENTURE OF SANTA FE ENGINEERS, INC. AND MATICH BROTHERS SUBMITTED THE LOWEST OFFER, AWARD SHOULD HAVE BEEN MADE TO THE JOINT VENTURE.

THE RFP WAS ISSUED ON DECEMBER 18, 1970, FOR THE CONSTRUCTION OF VARIOUS WAREHOUSES, MAGAZINES, AND SUPPORTING FACILITIES ON JOHNSTON ISLAND. ARE ADVISED THAT THE ACCOMPLISHMENT OF THE WORK TO BE PERFORMED IS OF THE UTMOST URGENCY AND IT IS ESSENTIAL THAT ALL MAJOR ITEMS OF CONSTRUCTION BE COMPLETED NOT LATER THAN MAY 15, 1971. PARAGRAPH 1A.5 OF AMENDMENT NO. 002 DATED DECEMBER 24, 1970, PROVIDED THAT THE MAY 15, 1971, COMPLETION DATE WOULD APPLY TO ALL WORK UNDER THE CONTRACT WITH THE EXCEPTION OF THE REPLENISHMENT OF THE UNPROCESSED CORAL AGGREGATE STOCKPILE. REPLENISHMENT OF THESE CORAL STOCKPILES WAS TO BE COMPLETED NOT LATER THAN AUGUST 15, 1971.

IN ORDER TO MEET THIS COMPLETION SCHEDULE, THE NFEC DETERMINED THAT THE CONTRACT AWARD MUST BE MADE AT THE EARLIEST POSSIBLE DATE AND NOT LATER THAN JANUARY 2, 1971. FURTHER, IT WAS DETERMINED THAT THE CONTRACTOR MUST BE IN A POSITION TO IMMEDIATELY INITIATE THE PROSECUTION OF THE WORK AND, THEREFORE, THE CONTRACTOR MUST HAVE AVAILABLE AND IN A PARTIAL STATE OF MOBILIZATION, PRIOR TO AWARD, THE NECESSARY PERSONNEL, EQUIPMENT, SHIPPING AND SUBCONTRACT ARRANGEMENTS. BECAUSE OF THE URGENCY, AUTHORITY WAS GRANTED TO NEGOTIATE A CONTRACT FOR THIS WORK PURSUANT TO 10 U.S.C. 2304(A)(2), WHICH AUTHORIZES THE NEGOTIATION OF CONTRACTS WHEN THE PUBLIC EXIGENCY WILL NOT PERMIT THE DELAY INCIDENT TO ADVERTISING.

IT IS REPORTED THAT PRIOR TO ISSUING THE RFP, THE OICC REVIEWED THE QUALIFICATIONS OF VARIOUS CONSTRUCTION FIRMS THAT WOULD BE ABLE TO ACCOMPLISH THE WORK WITHIN THE SHORT TIME FRAME PRESCRIBED. FIVE FIRMS WITH PROVEN EXPERIENCE AND RECORDS OF ACCOMPLISHMENT WERE SELECTED. THE JOINT VENTURE WAS NOT INCLUDED ON THIS LIST. HOWEVER, PRIOR TO THE ISSUANCE OF THE RFP, THE CONTRACTING OFFICER WAS CONTACTED BY REPRESENTATIVES OF THE JOINT VENTURE, AT WHICH TIME THEY REQUESTED THAT THEY BE PERMITTED TO SUBMIT A PROPOSAL. REPRESENTATIVES OF THE JOINT VENTURE WERE ADVISED THAT THIS PROJECT WAS OF THE UTMOST IMPORTANCE AND THAT A RFP WOULD BE ISSUED ONLY TO FIRMS THAT HAD ESTABLISHED THEIR ABILITY TO ACCOMPLISH THE REQUIRED WORK WITHIN THE REQUIRED TIME FRAME. VARIOUS ITEMS OF DOCUMENTATION WERE SUBMITTED BY THE JOINT VENTURE WHICH ESTABLISHED THAT IT HAD THE OVERALL CAPABILITY TO DO THE NECESSARY WORK. HOWEVER, A SUBSTANTIAL QUESTION REMAINED AS TO WHETHER THE JOINT VENTURE WAS PRESENTLY IN A POSITION TO ACCOMPLISH THE INSTANT SCOPE OF WORK WITHIN THE REQUIRED TIME. NOTWITHSTANDING THE FOREGOING, A RFP WAS ISSUED TO THE JOINT VENTURE BUT REPRESENTATIVES OF THE JOINT VENTURE WERE MADE AWARE OF THE NAVY'S CONCERN FOR TIMELY COMPLETION OF THE PROJECT.

AT A PREPROPOSAL CONFERENCE HELD ON DECEMBER 24, 1970, ALL PROSPECTIVE OFFERORS WERE FULLY ADVISED OF THE NATIONAL IMPORTANCE OF THE PROJECT AND THE NECESSITY FOR TIMELY COMPLETION. THEY WERE FURTHER ADVISED OF THE GOVERNMENT'S CONCERN AND NEED FOR ASSURANCE THAT PROPOSERS HAD CAREFULLY CONSIDERED THE WORK TO BE PERFORMED AND THAT EACH FIRM SUBMITTING A PROPOSAL HAD FULLY AND ADEQUATELY ANALYZED THE WORK AND WAS PREPARED TO COMPLETE THE PROJECT WITHIN THE TIME SPECIFIED.

ON DECEMBER 18, 1970, THE RFP WAS ISSUED WITH A CLOSING DATE SET FOR DECEMBER 30, 1970. FIVE OFFERS WERE RECEIVED AND WE ARE ADVISED THAT ALL PROPOSALS WERE CONFORMING WITH REGARD TO CONTRACTUAL REQUIREMENTS. THE LOW PROPOSAL AS TO PRICE WAS SUBMITTED BY THE JOINT VENTURE, BUT WE ARE ADVISED THAT THE PROPOSAL WAS NOT ACCEPTED BECAUSE IT DID NOT ESTABLISH THE JOINT VENTURE'S ABILITY TO PERFORM WITHIN THE EXTREMELY SHORT AND URGENT COMPLETION DATES.

THE RFP INCLUDED THE FOLLOWING NOTICE TO PROPOSERS: "THE GOVERNMENT RESERVES THE RIGHT TO AWARD A CONTRACT TO THE PROPOSER WHOSE PROPOSAL IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, WITHOUT FURTHER DISCUSSIONS WITH ANY PROPOSER. PROPOSERS ARE ADVISED THEREFORE TO SUBMIT THEIR BEST OFFERS." FURTHER, SECTION 1B.4 OF THE SPECIFICATIONS INCLUDES A SPECIAL PROVISION, ENTITLED "PROPOSER'S QUALIFICATION AND CONSTRUCTION CAPABILITY." THE FIRST SENTENCE OF THAT SECTION STATES:

"EACH PROPOSER SHALL SUBMIT WITH HIS PROPOSAL, SUFFICIENT PROOF THAT HE CAN UNDERTAKE THE PROJECT AND COMPLETE IT WITHIN THE TIME FRAME SPECIFIED." THE REMAINDER OF THE SECTION IDENTIFIES THE TYPE OF INFORMATION TO BE SUBMITTED. IN GENERAL, THE AREAS COVERED ARE: PERSONNEL, HOURS OF OPERATION, CONSTRUCTION EQUIPMENT, SUBCONTRACTORS, SHIPPING DREDGING, CONSTRUCTION SCHEDULE, LONG-LEAD EQUIPMENT AND MATERIALS.

WE ARE ADVISED THAT AFTER A THOROUGH REVIEW OF THE SUPPORTING DOCUMENTATION SUBMITTED BY THE JOINT VENTURE PURSUANT TO PARAGRAPH 1B.4, IT WAS THE CONCLUSION OF THE OICC, MID PACIFIC, AND THE COMMANDER OF THE PACIFIC DIVISION, NFEC, THAT THE LOW PROPOSER HAD NOT SUBMITTED INFORMATION CLEARLY ESTABLISHING THAT IT FULLY UNDERSTOOD THE IMPORTANCE OF THE PROJECT AND WAS IN A POSITION TO COMPLETE THE WORK WITHIN THE REQUIRED TIME.

IT IS REPORTED THAT ON DECEMBER 31, 1970, THE PROPOSALS WERE REVIEWED BY SENIOR TECHNICAL, CONTRACTUAL, AND LEGAL PERSONNEL OF THE NFEC. AS A RESULT OF THIS REVIEW, IT WAS CONCLUDED THAT THE JOINT VENTURE HAD FAILED TO PROVIDE DOCUMENTATION AND INFORMATION ESTABLISHING THAT IT COULD UNDERTAKE THE PROJECT AND COMPLETE IT WITHIN THE TIME FRAME SPECIFIED. THE REVIEW OF THE JOINT VENTURE'S PROPOSAL REVEALED THE FOLLOWING:

"A. THE STAFFING ASSIGNED IS THE MINIMUM INDICATED BY ANY PROPOSER. THE JOINT VENTURE INDICATES A PROPOSED STAFFING OF APPROXIMATELY 88, WHILE OTHER PROPOSERS INDICATED STAFFING FROM 117 TO 218.

"B. WITH REGARD TO HOURS AND/OR SHIFTS OF OPERATION, THE JOINT VENTURE INCLUDES ONLY A GENERAL STATEMENT THAT WORK WILL BE DOUBLE SHIFTED OR ONE SHIFT WITH OVERTIME, DEPENDENT ON THE TYPE OF WORK. ALL OTHER PROPOSERS SPECIFICALLY INDICATED A MINIMUM OF A TEN-HOUR DAY, SIX DAY WEEK, AND IN SOME CASES, SECOND SHIFTS OR OVERTIME FOR SPECIFIC ITEMS OF WORK.

"C. THE JOINT VENTURE STATED THAT THE CONSTRUCTION EQUIPMENT AVAILABLE ON THE ISLAND WOULD BE ADEQUATE FOR ALL NEEDS WITH THE EXCEPTION OF BARGES AND A DRAG LINE. OTHER PROPOSERS INDICATED THAT CONTRACTOR-FURNISHED EQUIPMENT WOULD BE REQUIRED IN AMOUNTS RANGING FROM 35 TO 80 MAJOR ITEMS IN ADDITION TO THAT AVAILABLE ON THE ISLAND. (IT SHOULD BE NOTED THAT EQUIPMENT AVAILABLE ON THE ISLAND DOES NOT INCLUDE DUMP TRUCKS OR VEHICLES NECESSARY FOR PERSONNEL AND MATERIALS MOVEMENT. SEE PARAGRAPH 1A.16.13 OF AMENDMENT 0002.

"D. BECAUSE OF THE SHORT COMPLETION SCHEDULE, SHIPPING ARRANGEMENTS TO JOHNSTON ISLAND COULD BE CRITICAL. THE JOINT VENTURE INDICATED THAT MATERIAL WOULD BE SHIPPED BY WATERMAN LINES BY ONE SUBCONTRACTOR AND VIA KAISER, MSTS, GOVERNMENT AIR CARGO, OR CONTRACTOR PLANE, DEPENDENT ON WHAT WOULD BE MOST ADVANTAGEOUS. NO EVIDENCE OF ANY FIRM COMMITMENT FOR SHIPPING ARRANGEMENTS WAS PROVIDED. OTHER PROPOSERS INCLUDED INFORMATION CONCERNING A FIRM SHIPPING COMMITMENT WITH THE DILLINGHAM CORPORATION- MARITIME SERVICES OF HONOLULU.

"E. THE CONSTRUCTION SCHEDULE SUBMITTED BY THE JOINT VENTURE IS IN THE FORM OF A MINIMUM BAR CHART AND INDICATES FIVE MAJOR TRADES FOR 16 ITEMS OF THE WORK. THIS CHART ALSO INDICATES THAT PERSONNEL OTHER THAN THOSE CURRENTLY ON THE ISLAND WOULD NOT ARRIVE UNTIL 23 JANUARY 1971. CONTRAST, THE SECOND LOW PROPOSER SUBMITTED A CONSTRUCTION SCHEDULE IDENTIFYING 71 ELEMENTS OF WORK WITH THE ELEMENTS SUBDIVIDED TO IDENTIFY THE 35 VARIOUS STRUCTURES CONCERNED. CONTRACTOR PERSONNEL ARE INDICATED AS STARTING WORK ON 14 JANUARY. FROM THIS DETAILED CHART, IT IS POSSIBLE TO TRACE SPECIFIC PHASES OF WORK FOR EACH STRUCTURE. *** IT WAS THE UNANIMOUS DETERMINATION OF ALL PERSONNEL INVOLVED WITH THE REVIEW THAT THE DATA SUBMITTED BY THE JOINT VENTURE CLEARLY FAILED TO ESTABLISH THAT IT COULD COMPLETE THE WORK WITHIN THE REQUIRED TIME FRAME."

WE ARE ADVISED THAT THE INFORMATION FURNISHED WITH THE NEXT LOWEST PROPOSAL CLEARLY ESTABLISHED THAT THE FIRM HAD THOROUGHLY INVESTIGATED THE WORK TO BE PERFORMED, CAREFULLY CONSIDERED THE PERSONNEL, EQUIPMENT, SUBCONTRACTORS AND RELATED SUPPORTING SERVICES NECESSARY FOR TIMELY COMPLETION, AND PROVIDED CLEAR AND CONVINCING EVIDENCE OF SUCH ACTIONS. THEREFORE, AN AWARD OF THE CONTRACT WAS MADE TO THE SECOND LOW PROPOSER ON DECEMBER 31, 1970.

WITH REGARD TO YOUR STATEMENT THAT THE SPECIFICATIONS PROVIDED THAT AWARD WOULD BE MADE ON JANUARY 2, 1971, WE NOTE THAT THE SPECIFICATIONS AND THE RFP INCLUDE NO SUCH PROVISIONS. PROPOSERS WERE ADVISED THAT THE GOVERNMENT INTENDED TO MAKE AN AWARD BY JANUARY 2, 1971. HOWEVER, THERE WAS NO REPRESENTATION THAT AWARD MIGHT NOT BE MADE EARLIER. THE AGENCY HAS REPORTED THAT BECAUSE OF THE URGENCY, THERE WAS NOT ADEQUATE TIME TO AFFORD THE JOINT VENTURE AN OPPORTUNITY TO PROVIDE ADDITIONAL DATA TO ESTABLISH THAT IT COULD PERFORM TIMELY. IN THAT CONNECTION, IT IS NOTED THAT OFFERS WERE OPENED ON DECEMBER 30, AND WERE EVALUATED ON DECEMBER 31, 1970, FOR THE PURPOSE OF AN IMMEDIATE AWARD NOT LATER THAN JANUARY 2, 1971.

IN SUMMARY, YOUR PROPOSAL WAS NOT ACCEPTED BECAUSE THE PROCURING ACTIVITY DETERMINED THAT YOU FAILED TO SUBMIT INFORMATION ESTABLISHING THAT THE JOINT VENTURE COULD COMPLETE THE PROJECT WITHIN THE TIME FRAME SPECIFIED. THE QUESTION OF THE ABILITY TO COMPLETE THE WORK ON TIME IS A MATTER OF RESPONSIBILITY. B-160318, FEBRUARY 16, 1967; B-163979, MAY 24, 1968.

PARAGRAPH 1-902 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REQUIRES THAT CONTRACTS BE AWARDED ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. ONE OF THE ELEMENTS TO BE CONSIDERED IN DETERMINING CONTRACT AWARD IS THE ABILITY TO COMPLY WITH THE REQUIRED PERFORMANCE SCHEDULE. ADDITION, SECTION 1-902 STATES IN PART:

" *** THE AWARD OF A CONTRACT TO A SUPPLIER BASED ON LOWEST EVALUATED PRICE ALONE CAN BE FALSE ECONOMY IF THERE IS SUBSEQUENT DEFAULT, LATE DELIVERIES, OR OTHER UNSATISFACTORY PERFORMANCE RESULTING IN ADDITIONAL PROCUREMENT OR ADMINISTRATIVE COSTS. WHILE IT IS IMPORTANT THAT GOVERNMENT PURCHASES BE MADE AT THE LOWEST PRICE, THIS DOES NOT REQUIRE AN AWARD TO A SUPPLIER SOLELY BECAUSE HE SUBMITS THE LOWEST BID OR OFFER. PROSPECTIVE CONTRACTOR MUST DEMONSTRATE AFFIRMATIVELY HIS RESPONSIBILITY, INCLUDING, WHEN NECESSARY, THAT OF HIS PROPOSED SUBCONTRACTORS. *** "

WE HAVE HELD THAT QUESTIONS, AS HERE, CONCERNING THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR ARE FOR RESOLUTION BY THE ADMINISTRATIVE OFFICERS CONCERNED. IN THE ABSENCE OF A SHOWING IN THE RECORD BEFORE US, OF BAD FAITH OR LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION, WE ARE NOT JUSTIFIED IN OBJECTING TO A DETERMINATION MADE ON THIS QUESTION BY AN ADMINISTRATIVE AGENCY. SEE 49 COMP. GEN. 553 (1970). ON THE RECORD BEFORE US, THE DETERMINATION TO REJECT THE LOW OFFER OF THE JOINT VENTURE APPEARS TO HAVE BEEN PROPER. YOUR PROTEST IS THEREFORE DENIED.