B-180085, MAR 12, 1974

B-180085: Mar 12, 1974

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DETERMINATION THAT PROSPECTIVE CONTRACTOR IS CAPABLE OF PERFORMING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS PRIMARY RESPONSIBILITY OF CONTRACTING OFFICER INVOLVED AND. IN ABSENCE OF EVIDENCE THAT SUCH DETERMINATION WAS UNREASONABLE OR NOT BASED UPON SUBSTANTIAL EVIDENCE. GAO WILL NOT OBJECT TO FINDING OF RESPONSIBILITY BY AGENCY. SINCE NO SUCH EVIDENCE WAS FOUND IN THIS CASE. REQUEST FOR PROPOSALS (RFP) NO. 2-23498 (DB 39) WAS ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION'S AMES RESEARCH CENTER. A COST-PLUS-AWARD-FEE TYPE CONTRACT WAS CONTEMPLATED BY THE RFP. ALL OFFERORS WERE REQUIRED TO SUBMIT PROPOSALS BASED ON A 40 MAN-YEAR LEVEL OF EFFORT. ALTHOUGH PROPOSALS OFFERING ALTERNATIVES WERE PERMITTED.

B-180085, MAR 12, 1974

DETERMINATION THAT PROSPECTIVE CONTRACTOR IS CAPABLE OF PERFORMING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS PRIMARY RESPONSIBILITY OF CONTRACTING OFFICER INVOLVED AND, IN ABSENCE OF EVIDENCE THAT SUCH DETERMINATION WAS UNREASONABLE OR NOT BASED UPON SUBSTANTIAL EVIDENCE, GAO WILL NOT OBJECT TO FINDING OF RESPONSIBILITY BY AGENCY. SINCE NO SUCH EVIDENCE WAS FOUND IN THIS CASE, GAO MAY NOT QUESTION PROPRIETY OF AWARD.

TO COASTLINE MAINTENANCE COMPANY, INC.:

ON SEPTEMBER 24, 1973, REQUEST FOR PROPOSALS (RFP) NO. 2-23498 (DB 39) WAS ISSUED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION'S AMES RESEARCH CENTER, MOFFET FIELD, CALIFORNIA. THE RFP SOLICITED PROPOSALS FOR THE FURNISHING OF CUSTODIAL AND JANITORIAL SERVICES AT THE CENTER FOR A PERIOD OF ONE YEAR, WITH THE GOVERNMENT RESERVING THE RIGHT TO RENEW THE CONTRACT FOR AN ADDITIONAL YEAR.

A COST-PLUS-AWARD-FEE TYPE CONTRACT WAS CONTEMPLATED BY THE RFP, AND ALL OFFERORS WERE REQUIRED TO SUBMIT PROPOSALS BASED ON A 40 MAN-YEAR LEVEL OF EFFORT, ALTHOUGH PROPOSALS OFFERING ALTERNATIVES WERE PERMITTED. SECTION III OF THE RFP'S GENERAL INSTRUCTIONS, ENTITLED "EVALUATION OF PROPOSALS", PROVIDED THAT PROPOSALS WERE TO BE JUDGED ON THEIR COMPETITIVE MERIT BASED ON MISSION SUITABILITY, COST, AND OTHER FACTORS. THE MISSION SUITABILITY FACTORS, INDICATING THE RELATIVE MERIT OF THE WORK BEING OFFERED, WERE EVALUATED AND SCORED NUMERICALLY BASED UPON THE CRITERIA SET FORTH IN THE RFP; WHEREAS, THE COST AND OTHER FACTORS WERE EVALUATED OBJECTIVELY WITHOUT A NUMERICAL WEIGHTING SYSTEM. THE PROPOSALS WERE OPENED ON OCTOBER 18, 1973, AND UPON INITIAL EVALUATION OF THE SIXTEEN PROPOSALS REVIEWED, FIVE WERE DETERMINED TO BE WITHIN THE COMPETITIVE RANGE. ALTHOUGH COASTLINE WAS WITHIN THE COMPETITIVE RANGE, IT WAS RANKED 4TH WITH RESPECT TO MISSION SUITABILITY AND ITS PRICE PROPOSAL WAS 3RD LOW. AFTER ORAL DISCUSSIONS AND PROPOSAL REVISIONS, THE CONTRACTING OFFICER DETERMINED THAT THE 15 POINT MISSION SUITABILITY SCORE DIFFERENCE BETWEEN S.F. & G., INCORPORATED, DOING BUSINESS AS MERCURY ENGINEERS (MERCURY), AND THE FIRM WITH THE HIGHEST SCORE WAS NOT A SIGNIFICANT DISCRIMINATOR, AND THEREFORE THE CONTRACT SHOULD BE AWARDED TO MERCURY, WHO HAD SUBMITTED THE LOWEST ESTIMATED PROBABLE COST TO THE GOVERNMENT. IN ACCORDANCE WITH THAT RECOMMENDATION, THE CONTRACT WAS AWARDED TO MERCURY.

IN A MAIL GRAM DATED NOVEMBER 16, 1973, COASTLINE MAINTENANCE COMPANY, INCORPORATED (COASTLINE), PROTESTED THE AWARD OF THE CONTRACT TO MERCURY ON THE GROUNDS THAT THE AWARDEE HAD NO ACTUAL PREVIOUS JANITORIAL MAINTENANCE EXPERIENCE AND WAS THUS INCAPABLE OF PERFORMING UNDER THE TERMS OF THE CONTRACT. SPECIFICALLY, COASTLINE ARGUED THAT IT SHOULD HAVE BEEN AWARDED THE CONTRACT IN LIGHT OF 30 YEARS OF EXPERIENCE IN THE MAINTENANCE BUSINESS, INCLUDING ITS SATISFACTORY PERFORMANCE OF A GRAVEL MAINTENANCE CONTRACT AT THE CENTER, AND MERCURY'S LACK OF PREVIOUS EXPERIENCE IN PERFORMING A JANITORIAL MAINTENANCE CONTRACT.

IN RESPONSE TO COASTLINE'S PROTEST, NASA FURNISHED OUR OFFICE A REPORT WHICH SHOWS THAT PRIOR TO AWARD IT WAS DETERMINED IN REGARD TO EXPERIENCE AND ABILITY TO PERFORM, THAT MERCURY HAD OBTAINED COMMITMENTS FROM THE INCUMBENT WORK FORCE, INCLUDING THE DAY AND NIGHT SUPERVISORS, AND THE EXPERIENCE AND QUALIFIICATIONS OF THE PROPOSED PROJECT MANAGER WERE JUDGED TO BE OUTSTANDING. THE REPORT ALSO DISCLOSED THAT REFERENCE CHECKS CONDUCTED BY NASA REVEALED MERCURY'S PERFORMANCE OF SIX OTHER RECENT AND CURRENT GOVERNMENT SUPPORT SERVICE CONTRACTS TO BE DESCRIBED AS OUTSTANDING.

IN REGARD TO COASTLINE'S CONTENTION THAT MERCURY IS NOT QUALIFIED OR SUFFICIENTLY EXPERIENCED TO PERFORM THE SERVICES REQUIRED BY THE CONTRACT, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE QUESTION AS TO THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR IS PRIMARILY FOR DETERMINATION BY THE PROCUREMENT OFFICERS CONCERNED. 52 COMP. GEN. 783, 789 (1973); B- 177217, JUNE 23, 1973. WHETHER A BIDDER IS CAPABLE OF PERFORMING IN ACCORDANCE WITH CONTRACT REQUIREMENTS IS A QUESTION OF JUDGMENT. IN THE ABSENCE OF EVIDENCE THAT THE DETERMINATION OF A BIDDER'S CAPABILITY IS ARBITRARY OR NOT BASED UPON SUBSTANTIAL EVIDENCE, OUR OFFICE WILL ACCEPT THE FINDINGS OF THE CONTRACTING AGENCY. 46 COMP. GEN. 371 (1966). IN 43 COMP. GEN. 228, 230 (1963), OUR OFFICE STATED THE FOLLOWING IN REGARD TO THE BROAD DISCRETION VESTED IN THE CONTRACTING OFFICER:

"DECIDING A PROSPECTIVE CONTRACTOR'S PROBABLE ABILITY TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH MUST OF NECESSITY BE A MATTER OF JUDGMENT. SUCH JUDGMENT SHOULD OF COURSE BE BASED ON FACT AND REACHED IN GOOD FAITH; HOWEVER, IT IS ONLY PROPER THAT IT BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICERS INVOLVED WHO SHOULD BE IN THE BEST POSITION TO ASSESS RESPONSIBILITY

OUR REVIEW OF THE RECORD AND INFORMATION RELIED UPON BY THE CONTRACTING OFFICER SUPPORTS THE AFFIRMATIVE DETERMINATION AS TO MERCURY'S RESPONSIBILITY.

ACCORDINGLY, WE CONCLUDE THAT THERE IS NO LEGAL BASIS TO QUESTION THE PROPRIETY OF THE AWARD OF THE CONTRACT TO MERCURY, AND COASTLINE'S PROTEST AGAINST SUCH AWARD IS THEREFORE DENIED.