B-180491, APR 25, 1974

B-180491: Apr 25, 1974

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GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF CONTRACTING OFFICER. WHO DETERMINED THAT LOW OFFEROR IN NEGOTIATED REPROCUREMENT WAS RESPONSIBLE. SINCE THERE IS NO EVIDENCE ON RECORD THAT CONTRACTING OFFICER EXERCISED HIS DISCRETION IN MANNER INCONSISTENT WITH INFORMATION BEFORE HIM. 2. THIS SOLICITATION WAS A NEGOTIATED REPROCUREMENT MADE UNDER AUTHORITY OF 41 U.S.C. 252(C)(15) AFTER THE LOW BIDDER. WHO WAS AWARDED THE ORIGINAL CONTRACT FOR THESE SERVICES PURSUANT TO SOLICITATION NO. WAS TERMINATED FOR DEFAULT ON JANUARY 16. THE REPROCUREMENT SOLICITATION WAS A TOTAL SMALL BUSINESS SET-ASIDE AND INCORPORATED THE TERMS AND CONDITIONS OF THE ORIGINAL SOLICITATION EXCEPT FOR THE DATES OF PERFORMANCE AND THE WORK ALREADY COMPLETED BY THE DEFAULTED CONTRACTOR.

B-180491, APR 25, 1974

1. GAO WILL NOT SUBSTITUTE ITS JUDGMENT FOR THAT OF CONTRACTING OFFICER, WHO DETERMINED THAT LOW OFFEROR IN NEGOTIATED REPROCUREMENT WAS RESPONSIBLE, SINCE THERE IS NO EVIDENCE ON RECORD THAT CONTRACTING OFFICER EXERCISED HIS DISCRETION IN MANNER INCONSISTENT WITH INFORMATION BEFORE HIM. 2. INASMUCH AS PROTESTER DID NOT OBJECT TO SMALL BUSINESS STATUS OF LOW OFFEROR ON NEGOTIATED REPROCUREMENT UNTIL 14 DAYS AFTER AWARD, ITS OBJECTION DOES NOT AFFECT LEGAL VALIDITY OF THAT PROCUREMENT. SEE FPR 1- 1.703-2.

TO PICKENS-KANE MOVING AND STORAGE COMPANY:

SOLICITATION NO. GS-05TT-474A, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA), BUSINESS SERVICE CENTER, CHICAGO, ILLINOIS, CALLED FOR THE RELOCATION OF RECORDS, EQUIPMENT, FURNITURE AND SUPPLIES FROM TWO FEDERAL ARCHIVES AND RECORDS CENTERS LOCATED IN CHICAGO TO A NEWLY CONSTRUCTED FEDERAL ARCHIVES AND RECORDS CENTER ALSO LOCATED IN CHICAGO. THIS SOLICITATION WAS A NEGOTIATED REPROCUREMENT MADE UNDER AUTHORITY OF 41 U.S.C. 252(C)(15) AFTER THE LOW BIDDER, WHO WAS AWARDED THE ORIGINAL CONTRACT FOR THESE SERVICES PURSUANT TO SOLICITATION NO. GS-05TT-474, WAS TERMINATED FOR DEFAULT ON JANUARY 16, 1974. THE REPROCUREMENT SOLICITATION WAS A TOTAL SMALL BUSINESS SET-ASIDE AND INCORPORATED THE TERMS AND CONDITIONS OF THE ORIGINAL SOLICITATION EXCEPT FOR THE DATES OF PERFORMANCE AND THE WORK ALREADY COMPLETED BY THE DEFAULTED CONTRACTOR. DUE TO THE URGENCY OF THIS PROCUREMENT, OFFERS WERE SOLICITED TELEPHONICALLY FROM THE NEXT THREE LOW BIDDERS ON THE ORIGINAL SOLICITATION AND CONFIRMED BY TELEGRAM ON JANUARY 17, 1974.

OFFERS WERE RECEIVED FROM ASSOCIATED NORTH AMERICAN, INC. (NORTH AMERICAN), PICKENS-KANE MOVING AND STORAGE COMPANY (PICKENS-KANE) AND ANDERSON BROTHERS CORPORATION, BY 3:00 P.M. ON JANUARY 17, 1974, THE TIME SET FOR RECEIPT OF ALL OFFERS. ON JANUARY 18, 1974, AWARD OF THE REPROCUREMENT CONTRACT WAS MADE TO NORTH AMERICAN, WHO HAD SUBMITTED THE LOWEST OFFER.

ON JANUARY 21, 1974, PICKENS-KANE PROTESTED THE AWARD TO OUR OFFICE ON THE GROUNDS THAT NORTH AMERICAN WAS NOT A RESPONSIBLE OR QUALIFIED BIDDER, INASMUCH AS IT DID NOT HAVE SUFFICIENT MEN OR EQUIPMENT TO FULFILL THE CONTRACT'S REQUIREMENTS. ON JANUARY 31, 1974, PICKENS-KANE SUPPLEMENTED ITS PROTEST AND FURTHER ALLEGED THAT NORTH AMERICAN WAS NOT A SMALL BUSINESS CONCERN AS REQUIRED BY THE SOLICITATION.

WITH REGARD TO PICKENS-KANE'S FIRST CONTENTION, GSA STATED IN ITS ADMINISTRATIVE REPORT RESPONSIVE TO THE PROTEST:

"*** PRIOR TO AWARD, THE CONTRACTING OFFICER VERIFIED WITH OUR REGIONAL FINANCE DIVISION THAT A CURRENT FINANCIAL RESPONSIBILITY REPORT WAS AVAILABLE ON NORTH AMERICAN. THE ILLINOIS COMMERCE COMMISSION WAS ALSO CONTACTED, AND THE CONTRACTING OFFICER WAS SATISFIED THAT NORTH AMERICAN HOLDS ALL THE NECESSARY AUTHORITY FOR THE PERFORMANCE OF THE CONTRACT IN QUESTION. IN ADDITION, THE CONTRACTING OFFICER DETERMINED THAT NORTH AMERICAN POSSESSES THE NECESSARY TRACTORS AND TRAILERS, INCLUDING REGULAR OPERATORS AND OTHER EMPLOYEES TO PERFORM A CONTRACT OF THIS TYPE. THE SCOPE OF WORK AND THE MANNER OF PERFORMANCE WERE ALSO THOROUGHLY DISCUSSED, AND THE CONTRACTING OFFICER HAD NO REASON TO BELIEVE THAT NORTH AMERICAN COULD NOT HANDLE ANY AND ALL OF THE JOB ASSIGNMENTS REQUIRED

RESPONSIBILITY IS A QUESTION OF FACT TO BE DETERMINED BY THE CONTRACTING OFFICER AND NECESSARILY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION. WHERE, AS IN THIS CASE, THERE IS NO EVIDENCE OF RECORD THAT THE CONTRACTING OFFICER EXERCISED HIS DISCRETION IN A MANNER INCONSISTENT WITH THE INFORMATION BEFORE HIM, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER. 45 COMP. GEN. 4 (1965); 51 COMP. GEN. 703, 709 (1972).

WITH REGARD TO PICKENS-KANE'S SECOND CONTENTION, IT IS TO BE NOTED THAT NORTH AMERICAN HAS CERTIFIED ITSELF AS A SMALL BUSINESS CONCERN. FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.703-1 STATES IN PERTINENT PART:

"(A) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION 1-1.703-1, THE CONTRACTING OFFICER SHALL ACCEPT AS CONCLUSIVE FOR THE PURPOSE OF A SPECIFIC PROCUREMENT A REPRESENTATION BY A BIDDER OR OFFEROR THAT IT IS A SMALL BUSINESS CONCERN AS DEFINED BY SBA.

"(B) *** IN THE ABSENCE OF A WRITTEN PROTEST OR OTHER INFORMATION WHICH WOULD CAUSE HIM TO QUESTION THE VERACITY OF THE SELF CERTIFICATION OF THE BIDDER OR OFFEROR, THE CONTRACTING OFFICER SHALL ACCEPT THE SELF- CERTIFICATION AT FACE VALUE FOR THE PARTICULAR PROCUREMENT INVOLVED ***."

INASMUCH AS PICKENS-KANE DID NOT OBJECT TO NORTH AMERICAN'S SMALL BUSINESS STATUS UNTIL 14 DAYS AFTER AWARD, ITS OBJECTION DOES NOT AFFECT THE LEGAL VALIDITY OF THIS SOLICITATION. SEE FPR 1-1.703-2.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.