B-173362, SEP 29, 1971

B-173362, SEP 29, 1971

BID PROTEST - BIDDER RESPONSIBILITY - CAPACITY TO PERFORM - UNPROFITABLE BID DECISION DENYING PROTEST AGAINST AWARD OF CONTRACTS TO NATIONAL ROOFING AND PAINTING COMPANY, FOR FAMILY HOUSING MAINTENANCE (STRUCTURAL) AND POLK AND POLK, INCORPORATED, FOR FAMILY HOUSING MAINTENANCE (HEATING AND AIR CONDITIONING) UNDER IFBS ISSUED BY THE NAVAL AIR STATION, ALBANY, GEORGIA. THE OFFERS OF SUCCESSFUL BIDDERS WERE EACH BELOW THE GOVERNMENT ESTIMATE AND PROTESTANT CONTENDS THAT THE SUCCESSFUL BIDDERS WILL NOT BE ABLE TO PROVIDE THE BASIC LABOR REQUIREMENTS CALLED FOR IN THE CONTRACTS AT THE MINIMUM WAGE RATE CALLED FOR IN USAGE DETERMINATION 68 392 (REV. 3), DATED APRIL 30, 1971, WHICH WAS MADE PART OF THE IFB THROUGH THE INCORPORATION OF THE SERVICE CONTRACT ACT OF 1965. THE COMP. GEN. FINDS THAT THE AFFIRMATIVE REQUIREMENT PLACED ON THE CONTRACTOR IS COUCHED IN TERMS OF CAPACITY, AS OPPOSED TO PHYSICALLY PRODUCING THE ENUMERATED PERSONNEL DURING ALL REGULAR WORKING HOURS REGARDLESS OF THE PARTICULAR WORK TO BE PERFORMED AT A GIVEN TIME. FURTHER, THE AWARD MAY NOT BE DISTURBED MERELY BECAUSE THE LOW BIDDER HAS SUBMITTED AN UNPROFITABLE BID.

TO LEONARD A. WHITE:

REFERENCE IS MADE TO YOUR LETTERS DATED JUNE 18 AND 24, JULY 8 AND AUGUST 9, 1971, PROTESTING ON BEHALF OF THE PROPERTY SERVICES COMPANY, ANY AWARD OF CONTRACT NO. N62467-71-C-4016 FOR FAMILY HOUSING MAINTENANCE (STRUCTURAL) AND CONTRACT NO. N62467-71-C-4026 FOR FAMILY HOUSING MAINTENANCE (HEATING AND AIR CONDITIONING), BOTH AT THE NAVAL AIR STATION, ALBANY, GEORGIA.

INVITATION FOR BIDS (IFB) FOR CONTRACT NO. N62467-71-C-4016, WAS ISSUED ON MAY 7, 1971, FOR SPECIFIED MAINTENANCE AND OTHER SERVICES FOR 900 FAMILY HOUSING UNITS AND RELATED FACILITIES AT THE NAVAL AIR STATION, ALBANY, GEORGIA. THE SIX BIDS RECEIVED WERE OPENED ON JUNE 15, 1971. NATIONAL ROOFING AND PAINTING CORPORATION (NATIONAL) SUBMITTED THE LOW BID AT $66,418.50. IN LIGHT OF THE GOVERNMENT ESTIMATE OF $107,500, THE LOW BIDDER, NATIONAL, WAS ADVISED BY THE OFFICER IN CHARGE OF CONSTRUCTION (OICC) OF THE DISCREPANCY BETWEEN HIS BID AND THE GOVERNMENT ESTIMATE. THE LOW BIDDER RESPONDED IN WRITING THAT HE HAD REVIEWED HIS BID AND CONFIRMED IT. SUCH A PROCEDURE IS CONSISTENT WITH ASPR 2-406.3(E) AND A LONG LINE OF OUR DECISIONS. ON JUNE 16, 1971, AWARD WAS MADE TO NATIONAL AS THE LOW CONFORMING AND RESPONSIBLE BIDDER.

YOU PROTESTED THE AWARD TO NATIONAL ON THE BASIS THAT THE BID COULD NOT INCLUDE THE BASIC LABOR REQUIREMENTS OF THE IFB, SPECIFICALLY THOSE SET OUT IN PARAGRAPHS 2.2, 2.2.1, 2.3 AND 2.4 OF THE IFB. BRIEFLY, THESE PROVISIONS REQUIRE THAT THE CONTRACTOR MUST PROVIDE, AS A MINIMUM, ONE SUPERINTENDENT, ONE CLERK-TYPIST, THREE STRUCTURAL REPAIRMEN, ONE ELECTRICIAN, TWO PLUMBERS, ONE APPLIANCE REPAIRMAN, ONE LABORER, EMERGENCY PERSONNEL AS REQUIRED AND HANDYMEN ON 24-HOUR NOTICE. HOWEVER, THE NUMBER OF HOURS WHICH THESE PERSONNEL MUST WORK IS NOT SPECIFIED. IN THIS REGARD, THE PERTINENT REQUIREMENTS APPEAR IN PARAGRAPHS 2.1 AND 2.2 AS FOLLOWS:

"THE CONTRACTOR SHALL MAINTAIN SUFFICIENT PERSONNEL *** TO ACCOMPLISH PROMPTLY AND SATISFACTORILY ALL WORK UNDER THIS CONTRACT *** .

"THE CONTRACTOR SHALL FURNISH SUFFICIENT ADMINISTRATIVE, SUPERVISORY, CLERICAL AND WORKING PERSONNEL OF SUCH CAPABILITIES TO PROMPTLY ACCOMPLISH ALL WORK DURING THE REGULAR WORKING HOURS *** ."

THUS, THE AFFIRMATIVE REQUIREMENT PLACED ON THE CONTRACTOR IS COUCHED IN TERMS OF CAPACITY TO ACCOMPLISH THE REQUIRED WORK, AS OPPOSED TO PHYSICALLY PRODUCING THE ENUMERATED PERSONNEL DURING ALL REGULAR WORKING HOURS REGARDLESS OF THE PARTICULAR WORK TO BE PERFORMED AT A GIVEN TIME.

YOU FURTHER CONTEND THAT USING THE ENUMERATED PERSONNEL REFERRED TO ABOVE IN PARAGRAPHS 2.2, 2.2.1, 2.3 AND 2.4 OF THE IFB WHILE APPLYING THE MINIMUM WAGES CALLED FOR IN WAGE DETERMINATION NO. 68-392 (REV. 3), DATED APRIL 30, 1971, WHICH WAS MADE A PART OF THE IFB THROUGH THE INCORPORATION OF THE SERVICE CONTRACT ACT OF 1965 IN PARAGRAPH 1.17, WOULD RESULT IN LABOR COSTS OF AT LEAST $91,786, THEREBY REPRESENTING AN AMOUNT LARGER THAN THE LOW BID. AS WE HAVE INDICATED ABOVE, WE DO NOT CONSIDER THIS REALISTIC IN LIGHT OF THE LACK OF ANY AFFIRMATIVE REQUIREMENT RELATING TO TOTAL MAN-HOURS FOR FULFILLMENT OF THE CONTRACT OBLIGATIONS. HOWEVER, RECOGNIZING THE THEORETICAL POSSIBILITY OF SUCH COSTS, THIS STILL WOULD NOT AFFECT THE VALIDITY OF THE CONTRACT AWARD. WE DO NOT BELIEVE SUBMISSION OF A VERY LOW BID AUTOMATICALLY WARRANTS A DETERMINATION THAT THE BIDDER IS NOT RESPONSIBLE. NOR ARE WE AWARE OF ANY PROVISION OF LAW PRECLUDING A BIDDER FROM OFFERING TO PERFORM AT A PRICE WHICH OTHERS MAY CONSIDER TOO LOW, OR EVEN AT AN UNPROFITABLE PRICE. THE QUESTION CONCERNING RESPONSIBILITY OF A BIDDER IS FOR DETERMINATION UNDER THE CRITERIA PRESCRIBED BY ASPR 1-905. SEE B 169824, AUGUST 14, 1970. AWARD MAY NOT BE DISTURBED MERELY BECAUSE THE LOW BIDDER SUBMITTED AN UNPROFITABLE PRICE. SEE B-149551, AUGUST 16, 1962.

YOU ALSO QUESTION THE AWARDING OF THE CONTRACT ONE DAY AFTER BID OPENING IN LIGHT OF ASPR 1-900. ALTHOUGH ASPR 1-904.1 INDICATES THAT AN AFFIRMATIVE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE SHOULD PRECEDE THE AWARD OF A CONTRACT, IT GOES ON TO SAY THAT THE SIGNING OF THE CONTRACT BY THE CONTRACTING OFFICER CONSTITUTES SUCH A DETERMINATION. IT HAS LONG BEEN OUR POSITION THAT IT IS NEITHER THE PROVINCE NOR THE INTENTION OF OUR OFFICE TO DETERMINE THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS, SUCH DETERMINATION BEING A QUESTION OF FACT PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER CONCERNED. THE AUTHORITY TO MAKE THESE DETERMINATIONS IS VESTED PRIMARILY IN THE PROCUREMENT AGENCY ACTING THROUGH THE CONTRACTING OFFICER AND WHEN A DETERMINATION IS MADE IT IS UPSET BY THIS OFFICE ONLY WHEN ARBITRARY, CAPRICIOUS OR FRAUDULENT. SEE B-171286, FEBRUARY 17, 1971; 38 COMP. GEN. 131, 133 (1958); 37 ID. 430, 435 (1957). WE FIND NOTHING IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER'S DETERMINATION IN THIS CASE WAS OUTSIDE THE REASONABLE RANGE, OR AN ABUSE, OF HIS ADMINISTRATIVE DISCRETION.

THE INVITATION RESULTING IN CONTRACT NO. N62467-71-C-4026, WAS ISSUED ON MAY 14, 1971, AND REQUESTED BIDS FOR PERFORMING MAINTENANCE AND OTHER SERVICES FOR 900 FAMILY HOUSING HEATING AND AIR CONDITIONING SYSTEMS AT THE NAVAL AIR STATION, ALBANY, GEORGIA. FOUR BIDS WERE RECEIVED ON JUNE 15, 1971, THE LOW BID BEING SUPPLIED BY POLK AND POLK, INCORPORATED, IN THE AMOUNT OF $36,800. AS WAS YOUR CONTENTION WITH REGARD TO CONTRACT 4016, IT IS YOUR BELIEF THAT THE LOW BID, AND IN THIS CASE THE GOVERNMENT ESTIMATE ALSO, DO NOT PROVIDE FOR THE MINIMUM REQUIREMENTS OF PARAGRAPHS 2.2, 2.2.1 AND 2.3 OF THE IFB. THESE PROVISIONS REQUIRE THAT THE CONTRACTOR PROVIDE, AS A MINIMUM, ONE CLERK TYPIST AND THREE HEATING AND AIR CONDITIONING REPAIRMEN FOR GENERAL MAINTENANCE, PLUS TWO REPAIRMEN AND TWO LABORERS FOR EACH OF THE TWO YEARLY PREVENTIVE MAINTENANCE OPERATIONS. IN ADDITION, EMERGENCY PERSONNEL ARE REQUIRED ON A STANDBY BASIS. AS IN THE PREVIOUS CONTRACT, THERE IS NO PROVISION REQUIRING THAT THESE PERSONS BE EMPLOYED FOR A GIVEN NUMBER OF HOURS. FURTHER, THIS CONTRACT IS A MIXTURE OF SCHEDULED AND UNSCHEDULED WORK, MAKING EXACT ESTIMATES OF REQUIRED MAN-HOURS IMPOSSIBLE. AS WAS THE CASE WITH CONTRACT 4016, THE AFFIRMATIVE REQUIREMENT IN QUESTION HERE IS ONE OF CAPACITY, NOT PHYSICAL PRESENCE ON THE JOB SITE FOR A SPECIFIED NUMBER OF HOURS. THEREFORE, FOR THE SAME REASONS GIVEN ABOVE IN RELATION TO CONTRACT 4016, WE CANNOT ACCEPT YOUR CONTENTIONS RAISED HERE.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR QUESTIONING AN AWARD TO NATIONAL OR TO POLK & POLK AND YOUR PROTEST MUST, THEREFORE, BE DENIED.