B-173755, NOV 15, 1971

B-173755: Nov 15, 1971

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THAT PROTESTANT WAS NONRESPONSIBLE UNDER ASPR 1-903.1(III) WHICH ALLOWS SUCH A FINDING WHEN PERFORMANCE ON PREVIOUS CONTRACTS HAS BEEN UNSATISFACTORY. GAO WILL NOT INTERVENE AND OVERRULE SUCH A FINDING UNLESS A SHOWING HAS BEEN MADE THAT IT WAS ARBITRARY OR WITHOUT SUBSTANTIAL BASIS IN FACT. PROTEST IS DENIED. WAS NONRESPONSIBLE UNDER TWO INVITATIONS FOR BIDS ISSUED BY THE PROCUREMENT DIVISION. WERE ISSUED DURING JUNE 1971. WAS LOW BIDDER ON THESE TWO INVITATIONS. A PREAWARD SURVEY WAS MADE IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-905.4 AND. IT WAS CONCLUDED THAT ORIOLE WAS NONRESPONSIBLE BECAUSE OF ITS PAST PERFORMANCE RECORD. THE CONTRACTING OFFICER DETERMINED THAT ORIOLE WAS NONRESPONSIBLE BECAUSE OF ITS FAILURE TO MEET THE REQUIREMENTS OF ASPR 1-903.1(III).

B-173755, NOV 15, 1971

BID PROTEST - BIDDER RESPONSIBILITY - DETERMINATION DECISION DENYING PROTEST OF ORIOLE PLUMBING AND HEATING, INC., AGAINST DETERMINATION BY THE PROCUREMENT DIVISION, FORT GEORGE G. MEADE, MD., THAT PROTESTANT WAS NONRESPONSIBLE UNDER ASPR 1-903.1(III) WHICH ALLOWS SUCH A FINDING WHEN PERFORMANCE ON PREVIOUS CONTRACTS HAS BEEN UNSATISFACTORY. ON THE RECORD, SUFFICIENT EVIDENCE EXISTS TO JUSTIFY THE CONTRACTING OFFICER'S DETERMINATION. GAO WILL NOT INTERVENE AND OVERRULE SUCH A FINDING UNLESS A SHOWING HAS BEEN MADE THAT IT WAS ARBITRARY OR WITHOUT SUBSTANTIAL BASIS IN FACT. PROTEST IS DENIED.

TO TYDINGS AND ROSENBERG:

WE REFER TO YOUR LETTERS OF JULY 30 AND SEPTEMBER 8, 1971, PROTESTING THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR CLIENT, ORIOLE PLUMBING AND HEATING, INC., (ORIOLE), WAS NONRESPONSIBLE UNDER TWO INVITATIONS FOR BIDS ISSUED BY THE PROCUREMENT DIVISION, FORT GEORGE G. MEADE, MARYLAND.

INVITATION FOR BIDS (IFB) DABB05-71-B-0111, TO CONVERT A STEAM AND HOT WATER BOILER TO FIRING WITH NATURAL GAS AT HEADQUARTERS, 1ST ARMY, FT. MEADE, AND IFB DABB05-71-B-0114, FOR THE REPLACEMENT OF BUSHINGS, BEARINGS AND RADIATOR VALVES AT THE SAME LOCATION, WERE ISSUED DURING JUNE 1971. ORIOLE, WHICH HAD PREVIOUSLY BEEN AWARDED CONTRACTS FOR WORK AT FT. MEADE, WAS LOW BIDDER ON THESE TWO INVITATIONS. BEFORE AWARDING CONTRACTS THEREUNDER, A PREAWARD SURVEY WAS MADE IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-905.4 AND, BASED UPON SUCH SURVEY, IT WAS CONCLUDED THAT ORIOLE WAS NONRESPONSIBLE BECAUSE OF ITS PAST PERFORMANCE RECORD, AN INADEQUATE WORK FORCE, AND BECAUSE ORIOLE COULD NOT COMPLETE THE WORK WITHIN 90 DAYS FROM THE DATE OF AWARD.

IN HIS "DETERMINATIONS AND FINDINGS" (D&F), THE CONTRACTING OFFICER DETERMINED THAT ORIOLE WAS NONRESPONSIBLE BECAUSE OF ITS FAILURE TO MEET THE REQUIREMENTS OF ASPR 1-903.1(III). THAT SECTION STATES THAT "PAST UNSATISFACTORY PERFORMANCE, DUE TO FAILURE TO APPLY NECESSARY TENACITY AND PERSEVERANCE TO DO AN ACCEPTABLE JOB, SHALL BE SUFFICIENT TO JUSTIFY A FINDING OF NONRESPONSIBILITY." IN SUBSTANTIATION OF THIS DETERMINATION, THE D&F NOTED TWO PREVIOUS CONTRACTS AWARDED TO ORIOLE AT FT. MEADE. THE FIRST, CONTRACT NO. DABB05-71-C-0438, FOR REPLACEMENT OF AN UNDERGROUND GAS DISTRIBUTION SYSTEM, WAS AWARDED ON DECEMBER 10, 1970, WITH A PROPOSED COMPLETION DATE OF MARCH 1, 1971, FOR ALL MECHANICAL WORK. DUE TO INCLEMENT WEATHER THE CONTRACT WAS EXTENDED UNTIL MARCH 30, 1971, HOWEVER, AS LATE AS APRIL 21, 1971, THE WORK WAS ONLY 60 PERCENT COMPLETE. THE D&F STATES THAT THE CONTRACTING OFFICER HAD INFORMED ORIOLE ON SEVERAL OCCASIONS OF THE URGENCY OF COMPLETING THE CONTRACT AND POINTS OUT THAT THE DELAY CAUSED THE GOVERNMENT BOTH UNDUE BURDEN AND EXPENSE. THE SECOND CONTRACT, NO. DABB05-71-M-6442, FOR REPLACEMENT OF LOW WATER CUT-OFF ALARMS IN VARIOUS BOILER PLANTS, WAS AWARDED FEBRUARY 22, 1971. THIS CONTRACT ALSO RAN INTO DIFFICULTIES BECAUSE OF THE FAILURE OF ORIOLE'S PERSONNEL TO INSTALL EQUIPMENT ON SEVERAL PREARRANGED DATES. ALSO, DUE TO ORIOLE'S FAILURE TO COMPLY WITH THE CONTRACT REQUIREMENT FOR ALARM TESTING, 49 BOILER TUBES WERE DESTROYED WHEN THE ALARMS MALFUNCTIONED. DUE TO THESE FACTORS, THE CONTRACT WAS NOT COMPLETED ON TIME.

PURSUANT TO ASPR 1-705.4(C)(VI), WHICH REQUIRES THAT DOCUMENTATION FOR NONRESPONSIBILITY DETERMINATIONS MADE WITH RESPECT TO SMALL BUSINESS CONCERNS IN ACCORDANCE WITH ASPR 1-903.1(III) BE FORWARDED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR POSSIBLE APPEAL OF THE DETERMINATION TO THE HEAD OF THE PROCURING ACTIVITY, THE MATTER WAS REFERRED TO SBA. SBA, HOWEVER, DECLINED TO INTERVENE IN THE MATTER.

THE GENERAL POLICY OF ASPR IS THAT CONTRACTS SHALL BE AWARDED TO RESPONSIBLE CONTRACTORS ONLY AND THAT THE CONTRACTING OFFICER, USING CURRENT VALID INFORMATION WHENEVER POSSIBLE, SHALL MAKE SUCH RESPONSIBILITY DETERMINATIONS. SEE ASPR 1-902. WE BELIEVE THE RECORD BEFORE US CONTAINS SUFFICIENT EVIDENCE TO JUSTIFY THE CONTRACTING OFFICER'S DETERMINATION THAT ORIOLE WAS NONRESPONSIBLE AS TO THESE TWO INVITATIONS. WE HAVE HELD THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WILL NOT BE DISTURBED WHERE, AS HERE, HIS DETERMINATION WAS NOT ARBITRARY, CAPRICIOUS, OR WITHOUT SUBSTANTIAL BASIS IN FACT. 159300, AUGUST 23, 1966; 43 COMP. GEN. 230, (1963).

IN THIS REGARD, IT IS SIGNIFICANT TO NOTE THAT THE SBA REFUSED TO INTERVENE IN BEHALF OF ORIOLE. IN OUR OPINION, THIS LENDS WEIGHT TO THE CREDIBILITY OF THE CONTRACTING OFFICER'S DECISION.

FINALLY, THE FACT THAT ORIOLE HAS BEEN AWARDED ADDITIONAL SIMILAR CONTRACTS BY THE SAME PROCUREMENT OFFICE AND BY THE UNITED STATES COAST GUARD DOES NOT SERVE TO OVERCOME THE DETERMINATIONS OF THE CONTRACTING OFFICER IN THE CASES AT HAND. SEE, IN THIS REGARD, B-162665, DECEMBER 19, 1967.

IN VIEW OF THE FOREGOING, YOUR PROTEST MUST BE DENIED.