B-181581, OCT 8, 1974

B-181581, OCT 8, 1974

LOW BIDDER, FOUND NONRESPONSIBLE DUE TO UNSATISFACTORY LABOR RESOURCES, PERFORMANCE RECORD AND ABILITY TO MEET REQUIRED PERFORMANCE SCHEDULE BY PREAWARD SURVEY TEAM OF DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE, AND LATER DETERMINED NONRESPONSIBLE BY CONTRACTING OFFICER UNDER STANDARDS OF ASPR 1-902, AND WHO HAS NOT SHOWN DETERMINATION OF NONRESPONSIBILITY TO BE IN ERROR, IS NOT ENTITLED TO HAVE DETERMINATION REVERSED SINCE NO ABUSE OF ADMINISTRATIVE DISCRETION HAS BEEN FOUND.

CONTRACT MAINTENANCE, INC.; MERCHANTS BUILDING MAINTENANCE COMPANY:

ON MARCH 22, 1974, INVITATION FOR BIDS (IFB) F04684-74-B-1157 WAS ISSUED BY THE BASE PROCUREMENT DIVISION, VANDENBURG AIR FORCE BASE, CALIFORNIA, FOR CUSTODIAL SERVICES. BID OPENING DATE WAS SET FOR APRIL 22 AND SIX BIDS WERE RECEIVED. CONTRACT MAINTENANCE, INC. (CMI), A SMALL BUSINESS CONCERN, WAS THE LOW BIDDER.

A PREAWARD SURVEY ON CMI WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE (DCASO), PORTLAND, OREGON. THE REPORT SUBMITTED BY DCASO ON JUNE 3, 1974, RECOMMENDED THAT NO AWARD BE MADE TO CMI SINCE THE SURVEY INDICATED CMI TO BE UNSATISFACTORY IN THE AREAS OF LABOR RESOURCES, PERFORMANCE RECORD AND ABILITY TO MEET THE REQUIRED PERFORMANCE SCHEDULE.

BASED UPON THE REPORT OF THE SURVEY TEAM, THE CONTRACTING OFFICER CONCLUDED THAT CMI WAS A NONRESPONSIBLE BIDDER. THE CONTRACTING OFFICER, BEING OF THE OPINION THAT THE PROCUREMENT IN QUESTION WAS URGENT IN NATURE, ISSUED A DETERMINATION AND FINDING OF URGENCY SETTING FORTH THE REASONS WHY AWARD MUST BE MADE WITHOUT THE DELAY INCIDENT TO REFERRAL TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR PURPOSES OF CERTIFICATE OF COMPETENCY CONSIDERATION. THE SBA ACKNOWLEDGED RECEIPT OF THE CERTIFICATE OF URGENCY AND ADVISED THAT IT WOULD NOT APPEAL THE CONTRACTING OFFICER'S DETERMINATION.

BY TELEGRAM DATED JUNE 21, 1974, CMI FILED A PROTEST WITH OUR OFFICE. CMI CONTENDS THAT THE DETERMINATION OF NONRESPONSIBILITY IS ERRONEOUS AS IT WAS BASED ON HEARSAY, SECOND-HAND KNOWLEDGE AND MADE WITHOUT THE BENEFIT OF ANY COMMUNICATION WITH THE PROPOSED CONTRACTOR.

DCASO PREAWARD SURVEYS ARE GENERALLY MADE BY A TEAM COMPRISED OF TECHNICAL REPRESENTATIVES IN THE AREAS TO BE SURVEYED. THE RESULTS OF THEIR INDIVIDUAL INVESTIGATIONS ARE COMPILED AND FORWARDED TO A PREAWARD MONITOR, WITH RECOMMENDATIONS IN THEIR RESPECTIVE AREAS. THE PREAWARD FINDINGS AND RECOMMENDATIONS ARE THEN SUBJECTED TO A SUPERVISORY REVIEW AND ULTIMATELY ARE EXAMINED BY A PREAWARD SURVEY BOARD. THE FINAL REPORT SUBMITTED TO THE CONTRACTING OFFICER REPRESENTS THE COLLECTIVE JUDGMENTS AND RECOMMENDATIONS OF THE PARTICULAR DCASO REGION. HOWEVER, THE FINAL DETERMINATION REGARDING THE PROPOSED CONTRACTOR'S RESPONSIBILITY STILL RESTS WITH THE CONTRACTING OFFICER, WHO EVALUATES THE RECOMMENDATIONS CONTAINED IN THE PREAWARD SURVEY REPORT, TOGETHER WITH OTHER INFORMATION AVAILABLE TO HIM.

ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-902 AND 1-903 SET FORTH THE GENERAL POLICY AND THE MINIMUM STANDARDS FOR MAKING A DETERMINATION OF RESPONSIBILITY OF PROSPECTIVE CONTRACTORS. UNDER ASPR 1-902, THE FOLLOWING GUIDANCE IS GIVEN TO THE CONTRACTING OFFICER:

"*** THE CONTRACTING OFFICER SHALL MAKE A DETERMINATION OF NONRESPONSIBILITY IF *** THE INFORMATION *** OBTAINED DOES NOT INDICATE CLEARLY THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE. RECENT UNSATISFACTORY PERFORMANCE, IN EITHER QUALITY OR TIMELINESS OF DELIVERY, WHETHER OR NOT DEFAULT PROCEEDINGS WERE INSTITUTED, IS AN EXAMPLE OF A PROBLEM WHICH THE CONTRACTING OFFICER MUST CONSIDER AND RESOLVE AS TO ITS IMPACT ON THE CURRENT PROCUREMENT PRIOR TO MAKING AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY. ***"

UNDER ASPR 1-903.1 A PROSPECTIVE CONTRACTOR MUST:

"(II) BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE, TAKING INTO CONSIDERATION ALL EXISTING BUSINESS COMMITMENTS, COMMERCIAL AS WELL AS GOVERNMENTAL. ***"

THE RESPONSIBILITY OF PROSPECTIVE GOVERNMENT CONTRACTORS IS A QUESTION OF FACT TO BE DETERMINED BY THE CONTRACTING OFFICER BEFORE AN AWARD IS MADE AND NECESSARILY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION. THEREFORE, WE HAVE CONSISTENTLY STATED THAT SUCH DETERMINATIONS WILL NOT BE QUESTIONED UNLESS FOUND TO BE UNREASONABLE. COMP. GEN. 448 (1972); 45 COMP. GEN. 4 (1965); B-178596, AUGUST 21, 1973; AND B-177512, APRIL 19, 1973.

CMI MAINTAINS THAT, CONTRARY TO THE FINDINGS CONTAINED IN THE PREAWARD SURVEY, IT DOES HAVE THE REQUIRED ABILITY TO MEET THE PERFORMANCE SHCEDULE, AND HAS BOTH A SATISFACTORY PERFORMANCE RECORD AND LABOR FORCE. CMI CONTENDS THAT ALTHOUGH SEVERAL CONTRACTS IT HAS BEEN PERFORMING IN THE RECENT PAST HAVE ENCOUNTERED DELAYS, WORK STOPPAGES, TERMINATIONS AND LITIGATION, ONLY ONE HAS BEEN TERMINATED FOR DEFAULT, AND THAT PARTICULAR TERMINATION IS PRESENTLY UNDER APPEAL. CMI STATES THAT PERFORMANCE HAS BEEN SATISFACTORY AT VANDENBURG AIR FORCE BASE FOR THE PAST 2 YEARS AND THAT, THEREFORE, CMI SHOULD BE AWARDED THE CONTRACT IN QUESTION.

HOWEVER, A CAREFUL EXAMINATION OF ASPR 1-902 DISCLOSES THAT ANY DOUBT CAUSED BY PAST PERFORMANCE (OR OTHER CRITERIA), WHETHER OR NOT RESULTING IN A DEFAULT TERMINATION, WHICH CANNOT BE RESOLVED AFFIRMATIVELY, REQUIRES A DETERMINATION OF NONRESPONSIBILITY. IN LIGHT OF CMI'S ADMITTED PAST PERFORMANCE RECORD AS DETAILED ABOVE, WE CAN UNDERSTAND HOW A CONTRACTING OFFICER MIGHT HAVE DOUBTS ABOUT CMI'S ABILITY TO PERFORM THE IMMEDIATE CONTRACT SATISFACTORILY. WHILE CMI HAS SUBMITTED STATEMENTS EXPRESSING THE OPPOSITE VIEW, SUCH STATEMENTS ALONE WITHOUT SUFFICIENT EVIDENCE CONTRADICTING THE BASES OF THE DETERMINATION AFFORD NO GROUNDS TO DISTURB THE NEGATIVE FINDINGS MADE. CONSEQUENTLY, ON THE BASIS OF THE PRESENT RECORD, THE GAO CANNOT CONCLUDE THAT THE DETERMINATION OF CMI'S LACK OF RESPONSIBILITY WAS UNREASONABLE, AND THEREFORE, THE DETERMINATION MAY NOT BE DISTURBED OR QUESTIONED. SEE MATTER OF SOLAR LABORATORIES, INC., B- 179731, FEBRUARY 25, 1974; AND B-174809, APRIL 20, 1972.

FOR THE REASONS SET FORTH ABOVE, THE PROTEST OF CMI IS DENIED.