B-178895(2), OCT 10, 1973

B-178895(2): Oct 10, 1973

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AWARD WAS MADE TO ASSOCIATED ON JUNE 26. THE SOLICITATION IS OBVIOUSLY SO AMBIGUOUS IN ITS TERMS AS TO BE INVALID. "2. ASSOCIATED REFUSE IS NOT A RESPONSIBLE BIDDER. "3. THE BID OF ASSOCIATED REFUSE OFFERS PRICES WHICH WILL CLEARLY NOT COVER THE COST OF ITS PERFORMANCE. THUS CLEARLY THE POSSIBILITY OF SUCCESSFUL PERFORMANCE IS NEGATED.". THE FIRST CONTENTION ALLEGING AMBIGUITY IN THE SOLICITATION WAS NOT MADE UNTIL AFTER BIDS WERE OPENED AND IT WAS DETERMINED THAT SQUARE DEAL WAS NOT THE LOW BIDDER. SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS STATES THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING.

B-178895(2), OCT 10, 1973

DENIAL OF BID PROTEST MADE ON BEHALF OF THE SQUARE DEAL TRUCKING CO., INC., AGAINST THE AWARD OF A CONTRACT TO ASSOCIATED REFUSE AND COMPACTION SERVICE UNDER SOL. NO. F49642-73-B-0373, ISSUED AT ANDREWS AIR FORCE BASE, MARYLAND.

TO MR. ALEXANDER BOSKOFF:

WE REFER TO YOUR LETTER DATED JULY 16, 1973, AND PRIOR CORRESPONDENCE ON BEHALF OF THE SQUARE DEAL TRUCKING CO., INC., (SQUARE DEAL) PROTESTING AGAINST THE AWARD OF A CONTRACT TO ASSOCIATED REFUSE AND COMPACTION SERVICE (ASSOCIATED) UNDER SOLICITATION NO. F49642-73-B-0373 (GROUP III) ISSUED AT ANDREWS AIR FORCE BASE (AFB), MARYLAND, FOR REFUSE COLLECTION AT BOLLING AFB.

ASSOCIATED SUBMITTED THE LOW BID FOR BOLLING AFB AT BID OPENING ON JUNE 8, 1973. AFTER BID OPENING, SQUARE DEAL (THE INCUMBENT CONTRACTOR) LODGED A PROTEST WITH THIS OFFICE AGAINST ANY AWARD TO THE LOW BIDDER. PRIOR TO OUR DECISION, BECAUSE OF THE URGENT NEED FOR UNINTERRUPTED SERVICE, AWARD WAS MADE TO ASSOCIATED ON JUNE 26, 1973, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 407.8(B)(3).

THE GROUNDS FOR SQUARE DEAL'S PROTEST CAN BE SUMMARIZED AS FOLLOWS:

"1. THE SOLICITATION IS OBVIOUSLY SO AMBIGUOUS IN ITS TERMS AS TO BE INVALID.

"2. ASSOCIATED REFUSE IS NOT A RESPONSIBLE BIDDER.

"3. THE BID OF ASSOCIATED REFUSE OFFERS PRICES WHICH WILL CLEARLY NOT COVER THE COST OF ITS PERFORMANCE, AND THUS CLEARLY THE POSSIBILITY OF SUCCESSFUL PERFORMANCE IS NEGATED."

THE FIRST CONTENTION ALLEGING AMBIGUITY IN THE SOLICITATION WAS NOT MADE UNTIL AFTER BIDS WERE OPENED AND IT WAS DETERMINED THAT SQUARE DEAL WAS NOT THE LOW BIDDER. SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS STATES THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING. THEREFORE WE MUST CONCLUDE THAT YOUR PROTEST ON THIS BASIS IS UNTIMELY AND WILL NOT BE CONSIDERED.

WITH RESPECT TO ALLEGATIONS OF NONRESPONSIBILITY, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT QUESTIONS CONCERNING THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR ARE PRIMARILY FOR RESOLUTION BY THE ADMINISTRATIVE OFFICERS CONCERNED, AND IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE, WE WILL NOT OBJECT TO AN AGENCY'S DETERMINATION OF RESPONSIBILITY. SEE 49 COMP. GEN. 553 (1970) AND 43 ID. 228, 230 (1963). AFTER CAREFUL REVIEW OF THE RECORD, WE DO NOT FIND THAT THE AGENCY EXERCISED BAD FAITH OR LACKED A REASONABLE BASIS FOR MAKING A DETERMINATION THAT ASSOCIATED WAS RESPONSIBLE.

THE CONTRACTING OFFICER'S REPORT TO OUR OFFICE (A COPY OF WHICH WAS PREVIOUSLY FURNISHED TO YOU) RESPONDED TO EACH ALLEGATION OF YOUR PROTEST. REGARDING ITS CAPABILITY TO PERFORM, THE CONTRACTING OFFICER DETERMINED THAT ASSOCIATED WAS A RESPONSIBLE BIDDER IN ACCORDANCE WITH THE STANDARDS SET FORTH UNDER ASPR PARAGRAPHS 1-903.1, 1-903.2, AND 1 903.4. HIS REPORT DOCUMENTS IN DETAIL THAT PRIOR TO AWARD, ASSOCIATED HAD ADEQUATE CREDIT AND THE REQUIRED EQUIPMENT AT ITS DISPOSAL OR ON ORDER TO PERFORM THE CONTRACT. IN ADDITION HE DETERMINED THAT ASSOCIATED COULD PERFORM DESPITE ITS OTHER CONTRACTUAL COMMITMENTS TO UNDERTAKE MAJOR JOBS. IN THIS REGARD, OUR INQUIRIES 2 MONTHS AFTER THE AWARD REVEALED THAT ASSOCIATED HAS BEEN PERFORMING SATISFACTORILY.

ALTHOUGH ASSOCIATED WAS A RECENTLY FORMED COMPANY (APRIL 5, 1973), OUR OFFICE HAS HELD THAT THE MERE FACT THAT A CORPORATION BIDDING ON A GOVERNMENT CONTRACT IS NEWLY FORMED SHOULD NOT DETRACT FROM THE RESPONSIBILITY OF THE CORPORATION WHERE ITS MANAGEMENT WAS EXPERIENCED IN SIMILAR PROJECTS, WHICH IS THE CASE HERE. 45 COMP. GEN. 4 (1965); 38 ID. 572 (1959). THE RECORD SHOWS THAT ASSOCIATED'S PRESIDENT AND VICE- PRESIDENT WERE EXPERIENCED SALESMEN AND MANAGERIAL PERSONNEL IN REFUSE WORK, AND CONTAINS A LIST OF THE FIRM'S CURRENT AND PAST CUSTOMERS.

FINALLY, YOU ALLEGE THAT ASSOCIATED'S BID OFFERED PRICES WHICH WOULD NOT COVER ITS COSTS OF PERFORMANCE AND THUS NEGATED THE POSSIBILITY OF ITS SUCCESSFUL PERFORMANCE. WE HAVE OFTEN STATED THAT WHEN A BID PRICE IS COMPETITIVE, THE BIDDER IS ASSUMED TO KNOW THE COST INVOLVED AND HIS INTENDED PRICE BID; THUS, THERE IS NO BASIS FOR THE CONCLUSION THAT PERFORMANCE OF A CONTRACT WOULD BE AT A LOSS. NEVERTHELESS, AN ANTICIPATED LOSS IN THE PERFORMANCE OF A CONTRACT DOES NOT JUSTIFY REJECTION OF AN OTHERWISE ACCEPTABLE BID. 49 COMP. GEN. 311 (1969).

FOR THE FOREGOING REASONS, YOUR PROTEST ON BEHALF OF SQUARE DEAL TRUCKING CO., INC., IS DENIED.