B-176801, NOV 22, 1972

B-176801, NOV 22, 1972

BID PROTEST - EXPERIENCE REQUIREMENTS - STATE LICENSING LAWS DECISION DENYING THE PROTEST OF UNITED SECURITY SERVICES, INC., AGAINST AWARD OF A CONTRACT TO JETS SERVICES, INC. UNDER AN IFB ISSUED BY THE NAVAL SUPPLY CENTER, CHARLESTON, S.C. FOR SECURITY GUARD DUTIES AT THE NAVAL AIR REWORK FACILITY, JACKSONVILLE, FLA. ALTHOUGH AN EXPERIENCE REQUIREMENT SHOULD NOT HAVE BEEN INCLUDED IN THE IFB, THE BIDS OF RESONSIBLE BIDDERS MAY NOT BE REJECTED BECAUSE THEY FAILED TO MEET THE PRESCRIBED EXPERIENCE REQUIREMENTS. 43 COMP. GEN. 275 (1963). MOREOVER, MATTERS INVOLVING COMPLIANCE WITH STATE LICENSING LAWS ARE THE SOLE RESPONSIBILITY OF EACH BIDDER AND DO NOT CONCERN THE GOVERNMENT UNLESS THEY PREVENT THE CONTRACT'S PERFORMANCE.

TO BROWN, STOREY, STANZIALE & FERRY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1972, AND PRIOR CORRESPONDENCE, PROTESTING ON BEHALF OF UNITED SECURITY SERVICES, INC., AGAINST THE AWARD OF A CONTRACT TO JETS SERVICES, INC., UNDER INVITATION FOR BIDS NO. N00612-73-B-0005, ISSUED BY THE NAVAL SUPPLY CENTER, CHARLESTON, SOUTH CAROLINA.

YOUR PROTEST IS BASED ON THE REQUIREMENT CONTAINED IN THE INVITATION THAT EACH BIDDER SHOULD BE A FIRM REGULARLY ENGAGED IN THE PERFORMANCE OF SECURITY GUARD SERVICES WITH EXPERIENCE AND COMPETENCE IN THE PERFORMANCE THEREOF AT GOVERNMENT INSTALLATIONS OR DEFENSE FACILITIES FOR A MINIMUM OF 2 YEARS. THE PROCUREMENT IS FOR SECURITY GUARD DUTIES TO BE PERFORMED AT THE NAVAL AIR REWORK FACILITY, NAVAL AIR STATION, JACKSONVILLE, FLORIDA. YOU QUESTION THE PROPRIETY OF AN AWARD TO JETS SERVICES, THE LOW BIDDER, BECAUSE THAT FIRM HAS NOT PERFORMED SECURITY GUARD SERVICES FOR THE REQUISITE 2-YEAR PERIOD AND BECAUSE THAT FIRM IS ALLEGEDLY NOT QUALIFIED TO PERFORM GUARD SERVICES IN FLORIDA IN VIEW OF ITS NON-COMPLIANCE WITH THAT STATE'S STATUTORY REGISTRATION REQUIREMENTS.

THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY BE CONDUCTED ON JETS SERVICES SO AS TO DETERMINE THAT FIRM'S TECHNICAL AND FINANCIAL CAPABILITIES, LABOR RESOURCES, AND PERFORMANCE RECORD. THE SURVEY RESULTS SHOWED JETS SERVICES TO BE RESPONSIBLE IN ALL AREAS, EXCEPT AS TO THE 2- YEAR EXPERIENCE REQUIREMENT IN THE INVITATION. HOWEVER, BECAUSE THAT FIRM HAS BEEN SATISFACTORILY PERFORMING A GUARD SERVICE CONTRACT SINCE MARCH 1, 1972, AT ANOTHER MILITARY INSTALLATION, THE CONTRACTING OFFICER DECIDED TO WAIVE THE 2-YEAR EXPERIENCE REQUIREMENT AND OUR OFFICE HAS BEEN ADVISED INFORMALLY THAT AWARD WAS MADE TO JETS SERVICES ON OCTOBER 19, 1972.

WHILE WE MAY AGREE THAT THE 2-YEAR EXPERIENCE REQUIREMENT SHOULD NOT HAVE BEEN INCLUDED IN THE INVITATION, WE FIND NO LEGAL BASIS TO OBJECT TO THE AWARD TO JETS SERVICES. WE HAVE HELD THAT THE BIDS OF RESPONSIBLE BIDDERS MAY NOT BE REJECTED ON THE GROUND THAT BIDDERS FAILED TO MEET THE PRESCRIBED EXPERIENCE REQUIREMENTS. 43 COMP. GEN. 275 (1963); B-159607, SEPTEMBER 14, 1966. CONSEQUENTLY, IN VIEW OF THE DETERMINATION BY THE CONTRACTING OFFICER THAT JETS SERVICES IS THE LOW RESPONSIBLE BIDDER AND IS CAPABLE OF PERFORMING THE DESIRED SERVICES, THE FAILURE TO REJECT THE LOW BID BECAUSE JETS SERVICES DID NOT STRICTLY CONFORM TO THE EXPERIENCE REQUIREMENT DOES NOT APPEAR IMPROPER.

FURTHER, AS REGARDS YOUR CONTENTION THAT JETS SERVICES WILL BE UNABLE TO COMPLY WITH THE FLORIDA LICENSING REQUIREMENTS, WE HAVE HELD THAT MATTERS INVOLVING COMPLIANCE WITH STATE LICENSING LAWS ARE THE SOLE RESPONSIBILITY OF EACH BIDDER. IF AS A RESULT OF ENFORCEMENT OF THE LICENSING REQUIREMENT BY A STATE A CONTRACTOR CHOOSES NOT TO PERFORM THE CONTRACT OR IS PROHIBITED FROM DOING SO BY AN INJUNCTION, THE CONTRACTOR MAY BE FOUND IN DEFAULT AND THE CONTRACT TERMINATED TO ITS PREJUDICE. SEE B-174216, MARCH 24, 1972.

ACCORDINGLY, THE PROTEST IS DENIED.