B-181252, SEP 13, 1974

B-181252: Sep 13, 1974

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WAS THE LOW BIDDER UNDER INVITATION FOR BIDS NO. WAS DECLARED NONRESPONSIBLE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903.1(III). AWARD WAS MADE TO THE NEXT LOW BIDDER AND A PROTEST WAS FILED IN OUR OFFICE. THAT IF THE INFORMATION AVAILABLE TO THE CONTRACTING OFFICER DOES NOT INDICATE CLEARLY THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE A DETERMINATION OF NONRESPONSIBILITY SHALL BE MADE. BMSI IS THE CURRENT CONTRACTOR UNDER CONTRACT NO. THIS PREVIOUS CONTRACT WAS AWARDED TO BMSI ON 22 JUN 73. THERE WAS APPROXIMATELY ONE MONTH'S DELAY BY THE CONTRACTOR IN OBTAINING REQUIRED INSURANCE. AN ACCEPTABLE CERTIFICATE OF INSURANCE WAS RECEIVED BY THIS OFFICE ON 20 JUL 73. NOTICE TO PROCEED WAS ISSUED ON 31 JUL 73. "*** BMSI WAS REQUIRED TO CLEAN ALL WATER FOUNTAINS.

B-181252, SEP 13, 1974

REJECTION OF BID OF SMALL BUSINESS CONCERN AS NONRESPONSIBLE BIDDER SUSTAINED WHERE RECORD CONTAINS SUBSTANTIAL EVIDENCE THAT PAST UNSATISFACTORY PERFORMANCE RESULTED FROM BIDDER'S FAILURE TO APPLY NECESSARY TENACITY AND PERSEVERANCE TO OVERCOME DEFICIENCIES IN PERFORMANCE OF MOWING AND CLEANING CONTRACT.

BUILDING MAINTENANCE SPECIALISTS, INC.:

BUILDING MAINTENANCE SPECIALISTS, INC., A SMALL BUSINESS CONCERN, WAS THE LOW BIDDER UNDER INVITATION FOR BIDS NO. DACW38-74-B-0109, ISSUED BY THE CORPS OF ENGINNEERS, FOR MOWING AND CLEANING SERVICES AT ARKABUTLA LAKE, MISSISSIPPI, BUT WAS DECLARED NONRESPONSIBLE PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-903.1(III), BECAUSE OF PAST UNSATISFACTORY PERFORMANCE DUE TO ITS FAILURE TO APPLY THE NECESSARY TENACITY AND PERSEVERANCE TO OVERCOME DEFICIENCIES IN PERFORMANCE UNDER A PRIOR CONTRACT FOR SIMILAR SERVICES. AWARD WAS MADE TO THE NEXT LOW BIDDER AND A PROTEST WAS FILED IN OUR OFFICE.

ASPR 1-902 PROVIDES THAT CONTRACTS SHALL BE AWARDED TO RESPONSIBLE PROSEPCTIVE CONTRACTORS ONLY, AND THAT IF THE INFORMATION AVAILABLE TO THE CONTRACTING OFFICER DOES NOT INDICATE CLEARLY THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE A DETERMINATION OF NONRESPONSIBILITY SHALL BE MADE. ASPR 1-903.1(III) PROVIDES THAT PAST UNSATISFACTORY PERFORMANCE DUE TO FAILURE TO APPLY NECESSARY TENACITY AND PERSEVERANCE TO DO AN ACCEPTABLE JOB SHALL BE SUFFICIENT TO JUSTIFY A DETERMINATION OF NONRESPONSIBILITY. THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY BASED UPON THE LATTER PROVISION INCLUDES THE FOLLOWING PERTINENT INFORMATION:

"2. BMSI IS THE CURRENT CONTRACTOR UNDER CONTRACT NO. DACW38-73-C 0345 FOR THE PERFORMANCE OF SIMILAR SERVICES AT DEGRAY LAKE, ARKADELPHIA, ARKANSAS. THIS PREVIOUS CONTRACT WAS AWARDED TO BMSI ON 22 JUN 73. PARA. J.9 OF THE SPECIFICATIONS REQUIRE CERTAIN INSURANCE COVERAGE DURING THE ENTIRE PERIOD OF THE CONTRACT. THERE WAS APPROXIMATELY ONE MONTH'S DELAY BY THE CONTRACTOR IN OBTAINING REQUIRED INSURANCE. AN ACCEPTABLE CERTIFICATE OF INSURANCE WAS RECEIVED BY THIS OFFICE ON 20 JUL 73, AND NOTICE TO PROCEED WAS ISSUED ON 31 JUL 73.

"*** BMSI WAS REQUIRED TO CLEAN ALL WATER FOUNTAINS, PICNIC SHELTERS, PICNIC TABLES, GRILLS, TRASH RECEPTACLES, PUBLIC USE AREAS AND ACCESS ROADS ON 18 DAYS IN AUGUST AND 16 DAYS IN SEPTEMBER. ***

"THE PERFORMANCE OF THE CONTRACTOR DURING THE MONTHS OF AUGUST AND SEPTEMBER WAS UNSATISFACTORY FOR ALL CLEANUP WORK REQUIRED. THE UNSATISFACTORY ASPECTS OF THEIR CLEANUP INCLUDED BOTH IMPROPER AND INADEQUATE CLEANING AND ALSO SOMETIMES TOTAL NEGLECT OF CLEANUP OF CERTAIN AREAS AND FACILITIES ON DAYS IN WHICH THEIR CLEANUP WAS REQUIRED. THESE DEFICIENCIES WERE REPEATEDLY CALLED TO THE ATTENTION OF MR. DAVID JOHNSON, WHO WAS DESIGNATED BY THE PRESIDENT OF THE COMPANY AS HIS REPRESENTATIVE AND AUTHORIZED TO MAKE ALL DECISIONS PERTAINING TO THE CONTRACT, AND DIRECTED TO TAKE CORRECTIVE ACTION. AT NO TIME DURING THE HEAVY USE SEASON BY RESERVOIR VISITORS DID THE CONTRACTOR HAVE ADEQUATE EQUIPMENT OR NUMBERS OF PERSONNEL TO PROPERLY PERFORM THE WORK AS REQUIRED BY THE CONTRACT.

"DURING THE MONTHS OF AUGUST AND SEPTEMBER, BMSI WAS DIRECTED SEVERAL TIME TO MOW THE AREAS REQUIRED UNDER THE CONTRACT TO BE MOWED, BUT NO MOWING WAS PERFORMED DURING THESE MONTHS. ALTHOUGH THE CONTRACT WAS AWARDED ON 22 JUN 73 AND NOTICE TO PROCEED ISSUED ON 31 JUL 73, THE CONTRACTOR DID NOT HAVE THE MOWERS NECESSARY TO PERFORM THIS CONTRACT REQUIREMENT. BMSI'S ONLY TRACTOR MOWER ARRIVED AT THE LAKE ON 11 SEP 73. HOWEVER, IT DID NOT HAVE ROLLOVER PROTECTION AS REQUIRED BY THE CONTRACT AND THEREFORE COULD NOT BE USED FOR MOWING. DURING THE WEEK OF 15 OCT 73, ROLLOVER PROTECTION WAS INSTALLED AND MOWING WAS COMMENCED BY THE CONTRACTOR. THE CONTRACT REQUIRES THAT EACH MOWING CYCLE BE COMPLETED WITHIN 5 WORKING DAYS. THE CONTRACTOR PARTIALLY MOWED THE REREGULATING POLL AREA, BUT DID NOT COMPLETE THE MOWING CYCLE AT THIS AREA. THE CONTRACTOR THEN HIRED A TRACTOR MOWER AND OPERATOR AND FINALLY DID COMPLETE ONE MOWING OF THE REREGULATING POOL AREA AND THE SHOUSE FORD AREA. NO MOWING CYCLES WERE COMPLETED BY THE CONTRACTOR AT ANY OTHER SITES REQUIRED BY THE CONTRACT TO BE MOWED. CONSEQUENTLY, NECESSARY MOWING AT DEGRAY LAKE WAS PERFORMED BY THE GOVERNMENT AS A RESULT OF THE CONTRACTOR'S NONPERFORMANCE. AGAIN, THE CONTRACTOR WAS NOTIFIED BY LETTER ON 13 MAR 74 TO MOW THE DIKE AREA, WHICH COMPRISES APPROXIMATELY 60 ACRES. THE CONTRACTOR COMMENCED MOWING ON 22 MAR 71 AND HAD COMPLETED APPROXIMATELY 40 ACRES BY 27 MAR 74. ON 27 MAR 74, THE CONTRACTOR STOPPED THE MOWING OPERATION AND HAD NOT COMPLETED MOWING AT THIS SITE ON 31 MAR 74, THE LAST OF THE CONTRACT PERIOD. THE CONTRACT PROVIDES FOR MOWING APPROXIMATELY ONCE EACH MONTH DURING THE SUMMER MONTHS AND APPROXIMATELY TWICE DURING THE PERIOD 1 OCT 73 - 31 MAR 74.

"THE DEFICIENCIES CITED ABOVE RELATIVE TO UNSATISFACTORY PERFORMANCE OF CLEANUP REQUIREMENTS AND NONPERFORMANCE OF MOWING REQUIREMENTS WERE ALSO BROUGHT TO THE ATTENTION OF THE COMPANY PRESIDENT, AND AT A MEETING IN THE OFFICE OF THE CONTRACTING OFFICER ON 14 SEP 73 WERE AGAIN DISCUSSED AT LENGTH WITH BOTH THE PRESIDENT AND THE DESIGNATED REPRESENTATIVE OF THE COMPANY. ASSURANCES WERE GIVEN BY THE PRESIDENT THAT THE DEFICIENCIES WOULD BE IMMEDIATELY CORRECTED.

"IN LATE SEPTEMBER THE CONTRACTOR CHANGED HIS GROUND FOREMAN, AND DURING THE WINTER MONTHS THE CONTRACTOR HAS PERFORMED THE WORK IN AN ADEQUATE MANNER. HOWEVER, NO MOWING WAS REQUIRED DURING THE WINTER MONTHS, EXCEPT AS CITED ABOVE AT THE DIKE AREA IN MAR 74, WHEN THE CONTRACTOR FAILED TO COMPLETE THE REQUIRED MOWING AT THIS AREA, AND THERE WERE FAR FEWER VISITORS AT THE LAKE, THEREFORE LESS EXTENSIVE CLEANUPS WERE REQUIRED."

PURSUANT TO ASPR 1-705.4(C)(VI) DETERMINATIONS OF NONRESPONSIBILITY INVOLVING A SMALL BUSINESS CONCERN BASED UPON ASPR 1-903.1(III) MUST BE SUPPORTED BY SUBSTANITAL EVIDENCE AND MUST BE APPROVED BY THE HEAD OF THE PROCURING ACTIVITY OR HIS DESIGNEE. THE REGULATION ALSO PROVIDES THAT CONCURRENT WITH SUBMISSION OF THE DETERMINATION TO THE HEAD OF THE PROCURING ACTIVITY FOR APPROVAL, THE CONTRACTING OFFICER SHALL TRANSMIT A COPY OF THE DOCUMENTATION SUPPORTING THE DETERMINATION TO THE APPROPRIATE SMALL BUSINESS ADMINISTRATION (SBA) REGIONAL OFFICE. THE REGULATION FURTHER PROVIDES THAT SBA MAY APPEAL TO THE HEAD OF THE PROCURING ACTIVITY WITH INFORMATION AND RECOMMENDATIONS WHICH BEAR ON HIS CONSIDERATION OF ANY APPROVAL ACTION. FINALLY, THE REGULATION PROVIDES THAT AFTER CONSIDERATION OF ANY APPEAL, THE DECISION OF THE HEAD OF THE PROCURING ACTIVITY SHALL BE FINAL. IN THE INSTANT CASE, THE FOREGOING PROCEDURE WAS FOLLOWED AND AFTER REVIEW OF THE EVIDENCE SBA ELECTED NOT TO APPEAL THE CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION AND, THEREFORE, SUCH DETERMINATION RECEIVED FINAL APPROVAL BY THE HEAD OF THE PROCURING ACTIVITY.

BUILDING MAINTENACNE SPECIALISTS' PROTEST IS BASED UPON THE CONTENTION THAT CERTAIN DEFICIENCIES IN PERFORMANCE WERE NOT ITS FAULT, AND THE FACTUAL CONCLUSIONS SUPPORTING THE NONRESPONSIBILITY DETERMINATION WERE ERRONEOUS. THE PROTESTER CONTENDS THAT THE APPROPRIATE INSURANCE WAS IN EFFECT AND ANY DELAY IN FURNISHING THE CERTIFICATE RESULTED FROM ITS BEING LOST EITHER IN THE MAIL OR BY THE CORPS. WITH REGARD TO ITS FAILURE TO HAVE AN ACCEPTABLE TACTOR MOWER UNTIL LATE IN OCTOBER, THE PROTESTER STATES THAT THE MOWER WAS LEASED EARLY IN THE CONTRACT PERIOD WITH A PROMISE OF DELIVERY IN 10 DAYS, BUT BECAUSE OF THE STEEL SHORTAGE THE SUPPLIER WAS UNABLE TO FURNISH THE MOWER WITH A ROLL BAR UNTIL OCTOBER 29, 1973. IN ADDITION, WITH REGARD TO THE REPORTED MOWING DEFICIENCIES, THE PROTESTER CONTENDS THAT ITS SUBCONTRACTOR MOWED THE AREAS, EXCEPT THE DAM AREA, THAT WERE POINTED OUT BY THE CORPS, AND THAT THE SUBCONTRACTOR WAS NEVER SHOWN THE AREAS LATER REPORTED AS UNMOWED. WITH REGARD TO THE CORPS' POSITION THAT ALL CLEAN-UP WORK DURING AUGUST AND SEPTEMBER WAS UNSATISFACTORY, THE PROTESTER CONTENDS THAT THE WORK WAS DONE IN THE MANNNER AND AT THE TIMES CALLED FOR IN THE CONTRACT, AND THAT THE ONLY COMPLAINT CONCERNING THE ADEQUACY OF THE WORK CAME AFTER A DISPUTE WITH THE PARK MANAGER AND CONTRACTING OFFICER OVER A REDUCTION IN THE CONTRACT PRICE RESULTING FROM A REDUCTION IN THE SCOPE OF THE WORK. IN SUPPORT OF ITS POSITION, THE PROTESTER HAS FURNISHED AFFIDAVITS OF ITS PRESIDENT AND SUPERVISOR.

AS NOTED ABOVE, THE APPLICABLE REGULATION REQUIRES THAT DETERMINATIONS OF NONRESPONSIBILITY BASED UPON UNSATISFACTORY PRIOR PERFORMANCE RESULTING FROM THE FAILURE TO APPLY THE NECESSARY TENACITY AND PERSEVERANCE TO DO AN ACCEPTABLE JOB MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE. IN THE INSTANT CASE, THE DETERMINATION IS SUPPORTED BY A STATEMENT OF FACTS BY THE PARK MANAGER UNDER THE CONTRACT AT DEGRAY LAKE, A LOG OF INSPECTIONS OF THE CONTRACT AREA, PHOTOGRAPHS OF THE INSPECTED AREAS, AND CORRESPONDENCE BETWEEN THE DEGRAY LAKE FIELD OFFICE AND THE PROTESTER. IN ADDITION, AS PROVIDED IN THE REGULATION, THE RECORD SUPPORTING THE DETERMINATION WAS REVIEWED BY SBA AND IT ELECTED NOT TO EXERCISE ITS RIGHT OF APPEAL TO THE HEAD OF THE PROCURING ACTIVITY, WHO SUBSEQUENTLY APPROVED THE DETERMINATION. FURTHERMORE, THE PARK MANAGER HAS FURNISHED AN AFFIDAVIT REBUTTING THE PROTESTER'S RESPONSE TO THE FACTS AS STATED IN THE DETERMINATION. WE HAVE EXAMINED THE EVIDENCE OF RECORD, INCLUDING THAT SUBMITTED BY THE PROTESTER, AND BELIEVE IT MEETS THE STANDARD OF PROOF REQUIRED; THEREFORE, WE FIND NO LEGAL BASIS TO QUESTION THE PROPRIETY OF THE DETERMINATION THAT THE PROTESTER WAS NONRESPONSIBLE FOR THE REASONS STATED. 51 COMP. GEN. 288, 292 (1971).

ACCORDINGLY, THE PROTEST IS DENIED.