B-172099, MAY 20, 1971

B-172099: May 20, 1971

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A PREAWARD SURVEY ESTABLISHED THAT SUCCESSFUL BIDDER WAS RESPONSIBLE WITHIN THE MEANING OF ASPR 1-903.1 AND THE FINDINGS OF THE CONTRACTING AGENCY WILL BE ACCEPTED EXCEPT IN CIRCUMSTANCES NOT HERE APPLICABLE. IT WAS ESTABLISHED. THAT BERKIN WAS LOW BIDDER WITH A PRICE OF $22. YOUR PROTEST IS PREDICATED UPON THE ALLEGATION THAT BERKIN'S EXPERIENCE HAS BEEN LIMITED TO THE FUNCTION OF CLEANING FURNACES. THEY ARE DEVOID OF PRIOR EXPERIENCE IN THE REALM OF MAINTENANCE INSPECTION OR REPAIR. THEY ARE INCAPABLE OF FULFILLING THE MINIMUM STANDARDS OF RESPONSIBILITY UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1 903.1. IT IS FURTHER CONTENDED THAT BERKIN'S BID SHOULD HAVE BEEN DECLARED NONRESPONSIVE FOR FAILURE TO COMPLETE THE SMALL BUSINESS REPRESENTATION SECTION OF THE BID.

B-172099, MAY 20, 1971

BID PROTEST - BIDDER RESPONSIBILITY - BID RESPONSIVENESS DECISION DENYING PROTEST BY SECOND LOW BIDDER AGAINST AWARD OF A CONTRACT TO LOW BIDDER, BERKIN EXHAUST CLEANING ENGINEERS, UNDER AN IFB ISSUED BY KINCHELOE AFB, MICHIGAN, FOR INSPECTION, REPAIR AND CLEANING OF FURNACES AND DUCTING IN HOUSING UNITS. A PREAWARD SURVEY ESTABLISHED THAT SUCCESSFUL BIDDER WAS RESPONSIBLE WITHIN THE MEANING OF ASPR 1-903.1 AND THE FINDINGS OF THE CONTRACTING AGENCY WILL BE ACCEPTED EXCEPT IN CIRCUMSTANCES NOT HERE APPLICABLE. ALSO BERKIN PROPERLY COMPLETED THE BID FORM INCLUDING THE SMALL BUSINESS

THE SUBJECT SOLICITATION REQUIRED THE PROSPECTIVE CONTRACTOR TO INSPECT, REPAIR AND CLEAN FURNACES AND DUCTING IN HOUSING UNITS AT THE BASE.

IT WAS ESTABLISHED, UPON BID OPENING, THAT BERKIN WAS LOW BIDDER WITH A PRICE OF $22,994.00, FOLLOWED BY YOUR BID OF $23,933.33.

YOUR PROTEST IS PREDICATED UPON THE ALLEGATION THAT BERKIN'S EXPERIENCE HAS BEEN LIMITED TO THE FUNCTION OF CLEANING FURNACES; THEY ARE DEVOID OF PRIOR EXPERIENCE IN THE REALM OF MAINTENANCE INSPECTION OR REPAIR; THEY ARE INCAPABLE OF FULFILLING THE MINIMUM STANDARDS OF RESPONSIBILITY UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1 903.1; AND THEY FAIL TO POSSESS THE REQUISITE ORGANIZATION, EXPERIENCE, TECHNICAL EQUIPMENT, TECHNICAL SKILLS, PRODUCTION CONTROL OR QUALITY ASSURANCE TO PERFORM AS A RESPONSIBLE CONTRACTOR PURSUANT TO ASPR 1 903.2(A). IT IS FURTHER CONTENDED THAT BERKIN'S BID SHOULD HAVE BEEN DECLARED NONRESPONSIVE FOR FAILURE TO COMPLETE THE SMALL BUSINESS REPRESENTATION SECTION OF THE BID.

AN EXAMINATION OF THE RECORD REVEALS DOCUMENTS, SOLICITED FROM THE PROCUREMENT PERSONNEL AT GOVERNMENT INSTALLATIONS AT WHICH BERKIN HAS RECENTLY PERFORMED CONTRACTS OF A SIMILAR NATURE, EXPRESSING UNQUALIFIED SATISFACTION WITH THAT FIRM'S PERFORMANCE. IT IS NOTED, SIGNIFICANTLY, THAT SEVERAL OF THESE CONTRACTS REQUIRED THE PERFORMANCE OF REPAIRS.

FOR THE INSTANT PROCUREMENT, A PREAWARD SURVEY WAS PERFORMED IN WHICH BERKIN WAS EXAMINED FOR:

(1) TECHNICAL CAPABILITY

(2) PRODUCTION CAPABILITY

(3) PLANT FACILITIES AND EQUIPMENT

(4) FINANCIAL CAPABILITY

(5) PLANT SAFETY

(6) LABOR RESOURCE

(7) PERFORMANCE RECORD

(8) ABILITY TO MEET REQUIRED SCHEDULE

UPON RECEIPT OF A SATISFACTORY RATING IN EACH OF THESE CATEGORIES, BERKIN WAS DETERMINED TO BE A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF ASPR 1-903.1 AND WAS RECOMMENDED FOR AWARD ON MARCH 23, 1971.

WE HAVE CONSISTENTLY HELD THAT WHETHER A BIDDER IS CAPABLE OF PERFORMING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF FACT, REQUIRING THE EXERCISE OF CONSIDERABLE JUDGMENT BY AGENCY PERSONNEL, AND IN THE ABSENCE OF EVIDENCE THAT A DETERMINATION OF A BIDDER'S CAPABILITIES WAS ARBITRARY OR BASED ON ERROR, FRAUD, OR FAVORITISM, WE WILL ACCEPT THE FINDING OF THE CONTRACTING AGENCY. THE DETERMINATION BY THE CONTRACTING OFFICER THAT BERKIN IS A RESPONSIBLE CONTRACTOR IS SUPPORTED BY AN AFFIRMATIVE PREAWARD SURVEY, AND THE RECORD PROVIDES NO BASIS FOR THIS OFFICE TO QUESTION THE SURVEY FINDINGS OR THE AGENCY'S DECISION THAT BERKIN CAN SATISFACTORILY PERFORM THE CONTRACT REQUIREMENTS. 46 COMP. GEN. 371 (1966).

YOU HAVE IMPLIED THAT AN AWARD TO BERKIN WOULD JEOPARDIZE THE LIVES AND WELL-BEING OF THE INVOLVED BUILDINGS' OCCUPANTS. IN THIS REGARD, IT IS THE POSITION OF OUR OFFICE THAT THE CONTRACTING OFFICIALS ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, AND THE RECORD INDICATES THAT THE WELFARE OF THE PERSONNEL IN THE HOUSING UNITS WAS FULLY CONSIDERED BY THE AGENCY IN DECIDING THAT BERKIN WAS SAFETY CONSCIOUS AND COMPETENT TO PERFORM THE WORK.

TO VENTILATION CLEANING ENGINEERS, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 5 AND APRIL 22, 1971, PROTESTING THE PROPOSED AWARD OF A CONTRACT TO BERKIN EXHAUST CLEANING ENGINEERS (BERKIN) PURSUANT TO INVITATION FOR BIDS F20612-71-B-0771-M02 ISSUED DECEMBER 9, 1970, BY THE KINCHELOE AIR FORCE BASE, MICHIGAN.

WITH REGARD TO YOUR CONTENTION THAT BERKIN WAS NONRESPONSIVE TO THE IFB