B-175659, MAY 24, 1972

B-175659: May 24, 1972

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A DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY A JUDGMENT FOR THE PROCURING AGENCY. GAO WILL NOT OVERTURN AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS IT WAS ARBITRARY. THERE IS NO BASIS FOR QUESTIONING THE FINDING OF RESPONSIBILITY IN THIS INSTANCE. BIDS WERE OPENED ON JANUARY 25. WAS THE LOWEST OF THE THREE BIDS RECEIVED. HE CONCLUDED THAT THE LOW BIDDER WAS RESPONSIBLE. A CONTRACT WAS AWARDED TO NBS WHILE THE PROTEST WAS PENDING HERE. IT WAS DETERMINED THAT A DELAY WOULD HINDER THE ABILITY OF THE FAA TO MEET THE AGENCY'S AUTOMATION GOALS. THE FORTEC PROTEST IS AGAINST THE FINDING THAT NBS IS A RESPONSIBLE BIDDER. FORTEC STATES THAT NBS IS NOT FINANCIALLY RESPONSIBLE BECAUSE ITS FINANCES ARE INTERMINGLED WITH THOSE OF A PARENT CORPORATION.

B-175659, MAY 24, 1972

BID PROTEST - BIDDER RESPONSIBILITY - DETERMINATION DENIAL OF PROTEST ON BEHALF OF FORTEC CONSTRUCTORS AGAINST THE AWARD OF A CONTRACT TO NETWORK BUILDING SYSTEMS, THE LOW BIDDER ON AN IFB ISSUED BY THE FEDERAL AVIATION ADMINISTRATION, FOR THE MODERNIZATION AND EXPANSION OF THE ATLANTA AIR ROUTE TRAFFIC CONTROL CENTER, HAMPTON, GA. A DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY A JUDGMENT FOR THE PROCURING AGENCY, AND GAO WILL NOT OVERTURN AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS IT WAS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE. IN MAKING SUCH DETERMINATIONS, THE EXPERIENCE OF THE PRINCIPAL OFFICERS OF A FIRM CAN BE CONSIDERED. ACCORDINGLY, THERE IS NO BASIS FOR QUESTIONING THE FINDING OF RESPONSIBILITY IN THIS INSTANCE.

TO SADUR, PELLAND & BRAUDE:

WE REFER TO YOUR LETTER OF APRIL 21, 1972, REQUESTING AN EXPEDITED DECISION ON BEHALF OF FORTEC CONSTRUCTORS (FORTEC) WHO, BY LETTER DATED APRIL 6, 1972, WITH ENCLOSURES, PROTESTED AGAINST AN AWARD OF A CONTRACT TO NETWORK BUILDING SYSTEMS (NBS), THE LOW BIDDER UNDER INVITATION FOR BIDS (IFB) S051-2-66, ISSUED NOVEMBER 24, 1971, BY THE FEDERAL AVIATION ADMINISTRATION (FAA) FOR THE MODERNIZATION AND EXPANSION OF THE ATLANTA AIR ROUTE TRAFFIC CONTROL CENTER, HAMPTON, GEORGIA.

BIDS WERE OPENED ON JANUARY 25, 1972. THE NBS BID, AT $3,068,000, WAS THE LOWEST OF THE THREE BIDS RECEIVED. THE CONTRACTING OFFICER FOUND THE NBS BID RESPONSIVE AND, FOLLOWING A PRE-AWARD SURVEY, HE CONCLUDED THAT THE LOW BIDDER WAS RESPONSIBLE. BASED ON A FINDING OF URGENCY, A CONTRACT WAS AWARDED TO NBS WHILE THE PROTEST WAS PENDING HERE. SPECIFICALLY, IT WAS DETERMINED THAT A DELAY WOULD HINDER THE ABILITY OF THE FAA TO MEET THE AGENCY'S AUTOMATION GOALS. TO OUR KNOWLEDGE, THE NOTICE TO PROCEED HAS NOT BEEN ISSUED.

THE FORTEC PROTEST IS AGAINST THE FINDING THAT NBS IS A RESPONSIBLE BIDDER. SPECIFICALLY, FORTEC STATES THAT NBS IS NOT FINANCIALLY RESPONSIBLE BECAUSE ITS FINANCES ARE INTERMINGLED WITH THOSE OF A PARENT CORPORATION. IT IS ALSO URGED THAT NBS DOES NOT HAVE THE WORK EXPERIENCE TO MEET THE IFB REQUIREMENTS. FINALLY, IT IS ASSERTED THAT THE SUBCONTRACTING INDICATED BY NBS OF STRUCTURAL, ELECTRICAL AND MECHANICAL PORTIONS OF THE WORK WOULD NOT PERMIT NBS TO COMPLY WITH THE IFB REQUIREMENT THAT THE CONTRACTOR PERFORM AT LEAST 12 PERCENT OF THE WORK AT THE SITE WITH HIS OWN RESOURCES.

THE PRE-AWARD SURVEY CONDUCTED ON NBS INDICATES THAT NBS IS NOT A SUBSIDIARY CORPORATION AND THAT NBS' FINANCIAL CONDITION IS SOUND. CONCERNING THE EXPERIENCE REQUIREMENTS OF THE IFB, THE PRE-AWARD SURVEY STATES THAT NBS HAS NOT COMPLETED A CONSTRUCTION PROJECT WHICH INVOLVED THE "CRITICAL PATH METHODS" (CPM) PROCEDURE. HOWEVER, THE NBS PERSONNEL, INCLUDING THE PROPOSED GENERAL SUPERINTENDENT FOR THE SUBJECT PROCUREMENT, HAVE AMPLE EXPERIENCE IN USING THE CPM PROCEDURE OF SCHEDULING WORK. THE ADMINISTRATIVE AGENCY REPORTS TO THIS OFFICE THAT THE SUBCONTRACTING OF THE TOTAL WORK WILL BE AS FOLLOWS: 27 PERCENT FOR MECHANICAL, 17 PERCENT FOR ELECTRICAL AND 3 PERCENT FOR METAL, A TOTAL OF 47 PERCENT, THEREBY LEAVING 53 PERCENT OF THE TOTAL WORK FOR NBS TO PERFORM.

OUR OFFICE HAS CONSISTENTLY HELD THAT THE DETERMINATION OF A BIDDER'S OVERALL RESPONSIBILITY IS PRIMARILY A JUDGMENT FOR THE PROCURING AGENCY. 45 COMP. GEN. 4, 6 (1965). IN SUCH DETERMINATION THE EXPERIENCE OF THE PRINCIPAL OFFICERS OF A FIRM CAN BE CONSIDERED. 36 COMP. GEN. 673 (1957). WE WILL NOT OVERTURN AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS IT WAS ARBITRARY, CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE.

BASED ON OUR REVIEW OF THE RECORD WE FIND NO BASIS TO QUESTION THE LEGALITY OF THE ADMINISTRATIVE ACTIONS IN THIS MATTER.

BASED ON THE ABOVE, THE PROTEST MUST BE DENIED.