B-171987, JUN 10, 1971

B-171987: Jun 10, 1971

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WOULD BE JUSTIFIED ONLY ON A SHOWING OF CAPRICIOUS OR ARBITRARY CONDUCT THAT IS NOT SHOWN IN THIS CASE. JOHNSON & ASSOCIATES: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19. PROPOSALS WERE RECEIVED FROM EIGHT OFFERORS. THAT THE CONTRACT SHOULD NOT HAVE BEEN AWARDED TO T&E BECAUSE A RETIRED SCS TECHNICAL EDITOR WHO IS PRESENTLY AN EMPLOYEE OF T&E WAS RETAINED BY T&E FOR THE PURPOSE OF SECURING A CONTRACT IN VIOLATION OF THE CERTIFICATION MADE BY T&E WITH RESPECT TO THE PAYMENT OF CONTINGENT FEES IN PARAGRAPH 3 OF PAGE 2 OF STANDARD FORM 33 ATTACHED TO RFP SCS-6-71. YOU OUTLINE EVENTS LEADING UP TO THE AWARD OF AN EARLIER CONTRACT FOR THE EDITING AND PREPARATION OF SOIL SURVEY MANUSCRIPTS TO YOUR FIRM UNDER RFP SCS-1-71 AND YOU ALLEGE THAT YOU HIRED THE RETIRED SCS EDITOR UNDER PRESSURE FROM THE CONTRACTING OFFICER THAT FAILURE TO HIRE HIM WOULD RESULT IN A DETERMINATION THAT YOUR COMPANY WAS NOT QUALIFIED TO PERFORM UNDER THE CONTRACT.

B-171987, JUN 10, 1971

BID PROTEST - EMPLOYMENT OF RETIRED EMPLOYEE OF PROCURING AGENCY DENIAL OF PROTEST OF EDWARD T. JOHNSON & ASSOCIATES AGAINST AWARD OF CONTRACT TO TECHSCRIBE & EDIT, LOW BIDDER, FOR SERVICES REQUIRED IN EDITING AND PREPARING FOR PUBLICATION SOIL SURVEY MANUSCRIPTS UNDER RFP ISSUED BY SOIL CONSERVATION SERVICE (SCS) DEPARTMENT OF AGRICULTURE. ALTHOUGH PROTESTANT ALLEGES THAT T&E HIRED A RETIRED SCS EMPLOYEE FOR PURPOSE OF SECURING THE CONTRACT, THE RECORD DOES NOT INDICATE THAT THE SCS ABUSED ITS DISCRETION IN QUALIFYING T&E NOR THAT T&E HIRED THE RETIRED EMPLOYEE FOR REASONS OTHER THAN HIS PERSONAL COMPETENCE. INTERVENTION OF THE COMP. GEN. WOULD BE JUSTIFIED ONLY ON A SHOWING OF CAPRICIOUS OR ARBITRARY CONDUCT THAT IS NOT SHOWN IN THIS CASE.

TO EDWARD T. JOHNSON & ASSOCIATES:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 19, 1971, PROTESTING THE AWARD OF CONTRACT TO ANOTHER OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) SCS -6-71 ISSUED BY THE SOIL CONSERVATION SERVICE (SCS), DEPARTMENT OF AGRICULTURE, WASHINGTON, D.C.

THE RFP, ISSUED DECEMBER 29, 1970, REQUESTED PROPOSALS FOR THE SERVICES REQUIRED FOR THE EDITING AND PREPARATION FOR PUBLICATION OF SIX SOIL SURVEY MANUSCRIPTS. PROPOSALS WERE RECEIVED FROM EIGHT OFFERORS, THE LOW PROPOSAL BEING SUBMITTED BY TECHSCRIBE & EDIT (T&E). THE BOARD OF CONTRACT ON JANUARY 29, 1971.

YOU CONTEND, BASICALLY, THAT THE CONTRACT SHOULD NOT HAVE BEEN AWARDED TO T&E BECAUSE A RETIRED SCS TECHNICAL EDITOR WHO IS PRESENTLY AN EMPLOYEE OF T&E WAS RETAINED BY T&E FOR THE PURPOSE OF SECURING A CONTRACT IN VIOLATION OF THE CERTIFICATION MADE BY T&E WITH RESPECT TO THE PAYMENT OF CONTINGENT FEES IN PARAGRAPH 3 OF PAGE 2 OF STANDARD FORM 33 ATTACHED TO RFP SCS-6-71.

IN SUBSTANTIATION OF THIS CONTENTION, YOU OUTLINE EVENTS LEADING UP TO THE AWARD OF AN EARLIER CONTRACT FOR THE EDITING AND PREPARATION OF SOIL SURVEY MANUSCRIPTS TO YOUR FIRM UNDER RFP SCS-1-71 AND YOU ALLEGE THAT YOU HIRED THE RETIRED SCS EDITOR UNDER PRESSURE FROM THE CONTRACTING OFFICER THAT FAILURE TO HIRE HIM WOULD RESULT IN A DETERMINATION THAT YOUR COMPANY WAS NOT QUALIFIED TO PERFORM UNDER THE CONTRACT. YOU HAVE FURNISHED COPIES OF LETTERS FROM T&E AND FROM MCLAUGHLIN RESEARCH CORP., ANOTHER OFFEROR UNDER RFP SCS-1-71, TO THE RETIRED EDITOR INDICATING THAT HE WAS EMPLOYED BY THOSE FIRMS DURING AUGUST 1970, BEFORE THE AWARD OF A CONTRACT TO YOUR COMPANY UNDER RFP SCS-1-71, AND YOU STATE THAT THE EDITOR HAD ALSO CONTACTED JOHN F. HOLMAN CO., THE FOURTH OFFEROR UNDER RFP SCS-1-71, WITH REGARD TO EMPLOYMENT. IT IS YOUR POSITION THAT THESE FACTS ESTABLISH THAT WITH RESPECT TO RFP SCS-1-71 THE RETIRED SCS EDITOR WAS NOT A "FULL TIME, BONA FIDE EMPLOYEE WORKING SOLELY FOR THE OFFEROR" FOR THE PURPOSES OF THE OFFEROR CERTIFICATION CONCERNING THE PAYMENT OF CONTINGENT FEES REQUIRED BY STANDARD FORM 33, ATTACHED TO THAT RFP, AND YOU CONCLUDE THAT THE LISTING OF THAT INDIVIDUAL AS A TECHNICAL EDITOR UNDER THE LATER RFP SCS-6 -71 THEREFORE ALSO VIOLATED THE CERTIFICATION REQUIREMENT CONTAINED IN THE LATER RFP. YOU ACCORDINGLY REQUEST CANCELLATION OF THE AWARD MADE TO T&E ON JANUARY 29, 1971, AND AWARD OF A CONTRACT FOR THE SERVICES INVOLVED TO YOUR COMPANY.

IN AN APPARENTLY UNRELATED COMPLAINT, YOU LIST SIX INDIVIDUALS BY NAME AND STATE THAT IT IS A VIOLATION OF 18 U.S.C. 207 FOR THOSE INDIVIDUALS AS RETIREES OF SCS TO ENTER CONTRACTS "AS PRINCIPALS" WITH SCS. WITH RESPECT TO THIS LATTER COMPLAINT, WE NOTE THAT THE CITED STATUTE IS A CRIMINAL STATUTE THE ENFORCEMENT OF WHICH IS CHARGED TO THE DEPARTMENT OF JUSTICE RATHER THAN TO OUR OFFICE.

CONCERNING THE EVENTS LEADING UP TO THE AWARD OF THE EARLIER CONTRACT TO YOUR FIRM, THE REPORT IN THIS MATTER FURNISHED OUR OFFICE BY THE DEPARTMENT OF AGRICULTURE STATES THAT WHILE YOU WERE ADVISED DURING NEGOTIATIONS THAT THE TECHNICAL NATURE OF THE WORK INVOLVED REQUIRED THE SERVICES OF A PROFESSIONAL TECHNICAL EDITOR EXPERIENCED IN THE AREA OF SOIL SURVEY MANUSCRIPTS, AND THAT WHILE THE ADDITION TO YOUR STAFF OF THE RETIRED EDITOR IN QUESTION SERVED TO QUALIFY YOU TO PERFORM THE CONTRACT WORK IN THAT REGARD, THE CHOICE OF WHO WAS EMPLOYED BY YOUR COMPANY FOR THIS PURPOSE WAS LEFT TO YOU AND NO PRESSURE TO HIRE ANY SPECIFIC INDIVIDUAL WAS EXERTED.

CONCERNING THE EMPLOYMENT OF THE SAME TECHNICAL EDITOR BY T&E AS HAD PREVIOUSLY BEEN EMPLOYED BY YOUR COMPANY FOR PURPOSES OF THE CONTRACT AWARDED UNDER RFP SCS-6-71, THE ADMINISTRATIVE REPORT REFLECTS THAT A LETTER FURNISHED BY T&E DOCUMENTS THAT THAT INDIVIDUAL WAS EMPLOYED ON JANUARY 24, 1971, AFTER HE HAD LEFT YOUR EMPLOY, AND THAT HIS QUALIFICATIONS WERE CONSIDERED IN THE COURSE OF DETERMINING THAT T&E WAS CAPABLE OF PERFORMING UNDER THE CONTRACT.

IN OUR OPINION, THE CIRCUMSTANCES SURROUNDING THE AWARD OF THE EARLIER CONTRACT TO YOUR COMPANY HAVE NO BEARING ON THE LATER AWARD TO T&E WHILE YOU HAVE FURNISHED EVIDENCE THAT THE TECHNICAL EDITOR HIRED BY YOU IN ORDER TO QUALIFY FOR AWARD OF THE EARLIER CONTRACT WAS ALSO EMPLOYED PRIOR TO AWARD OF THE EARLIER CONTRACT BY TWO OF THE OTHER OFFERORS, THERE IS NO EVIDENCE THAT HE WAS HIRED BY THOSE FIRMS FOR THE PURPOSE OF SOLICITING OR SECURING A CONTRACT SO AS TO BRING HIS SERVICES WITHIN THE PURVIEW OF THE STANDARD FORM 33 CERTIFICATION CONCERNING CONTINGENT FEES OR THAT ANY COMPENSATION PAID HIM WAS "CONTINGENT UPON OR RESULTING FROM THE AWARD OF THIS CONTRACT." RATHER, IT WOULD APPEAR THAT THE RETIRED EDITOR WAS HIRED FOR HIS SKILLS AT TECHNICAL EDITING. SIMILARLY, THERE IS NO INDICATION THAT THE SUBSEQUENT EMPLOYMENT OF THE RETIRED EDITOR BY T&E WAS FOR THE PURPOSE OF SOLICITING THE CONTRACT AWARDED TO T&E AND THEREFORE CONTRARY TO T&E'S CERTIFICATION THAT NO CONTINGENT FEES HAD BEEN PAID.

CONCERNING THE DETERMINATION THAT T&E WAS, IN FACT, QUALIFIED TO PERFORM THE WORK REQUIRED BY RFP SCS-6-71, THE FILE REFLECTS THAT THE SCS BOARD OF CONTRACT AWARDS DETERMINED ON JANUARY 20, 1970, THAT T&E SHOULD BE REQUESTED TO SUBMIT SUBSTANTIATING DATA IN WRITING TO SHOW THE NUMBER OF TECHNICAL EDITORS WHICH WOULD BE ASSIGNED TO THE JOB, RESUMES OF THEIR QUALIFICATIONS, AND A STATEMENT FROM THE OFFEROR AS TO ITS FINANCIAL ABILITY. BY LETTER DATED JANUARY 24, 1971, T&E PROVIDED THE BOARD WITH THE INFORMATION IT REQUESTED INCLUDING A LIST OF ITS TECHNICAL EDITORS WHICH CONTAINED THE NAME OF THE SCS RETIREE WHO WAS PREVIOUSLY EMPLOYED BY YOU. ON THE BASIS OF THIS RESPONSE THE BOARD DETERMINED THAT T&E WAS QUALIFIED TO PERFORM THE WORK AND RECOMMENDED THAT AWARD BE MADE TO IT.

WE HAVE CAREFULLY REVIEWED THE RECORD BEFORE US AND WE FIND IT CONTAINS NO BASIS FOR US TO QUESTION THE BOARD'S DETERMINATION THAT T&E WAS QUALIFIED TO PERFORM THE CONTRACT. OUR OFFICE HAS HELD ON NUMEROUS OCCASIONS THAT DETERMINATIONS BY A PROCURING ACTIVITY OF AN OFFEROR'S QUALIFICATIONS IN THE AREA OF RESPONSIBILITY NECESSARILY INVOLVE DISCRETION AND THAT, IN THE ABSENCE OF A SHOWING THAT SUCH DETERMINATIONS ARE ARBITRARY OR CAPRICIOUS OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, THEY WILL NOT BE DISTURBED BY OUR OFFICE.

AT THE TIME THE BOARD DETERMINED T&E TO BE QUALIFIED TO PERFORM THE CONTRACT, IT HAD THE QUALIFIED PERSONNEL IN ITS EMPLOY, INCLUDING THE SCS RETIREE, TO PERFORM THE CONTRACT AND THE REQUISITE EXPERIENCE IN THE TYPE OF WORK. IT ALSO HAD THE NECESSARY FINANCIAL ABILITY TO PERFORM THE CONTRACT. THEREFORE, WE WOULD NOT BE JUSTIFIED IN CONCLUDING T&E WAS NOT QUALIFIED TO PERFORM THE CONTRACT OR THAT THE BOARD'S CONCLUSION THAT IT WAS QUALIFIED WAS ARBITRARY OR CAPRICIOUS OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.

ACCORDINGLY, YOUR PROTEST MUST BE DENIED.