B-181684, MAR 17, 1975

B-181684, MAR 17, 1975

1. EVIDENCE OF RECORD THAT PROTESTER'S PERFORMANCE WAS CONSISTENTLY POOR UNDER SIMILAR PAST CONTRACT PROVIDES A SUFFICIENT BASIS FOR CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY. 2. AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WILL NOT BE REVIEWED EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD OR WHERE THERE IS A QUESTION CONCERNING WHETHER THE BIDDER MEETS DEFINITIVE RESPONSIBILITY GUIDELINES OR REQUIREMENTS LISTED IN THE SOLICITATION. 3. TELEPHONE LISTING ALONE IS NOT SUFFICIENT EVIDENCE THAT CONTRACTOR PROVIDING GUARD SERVICE IS ENGAGED IN THE BUSINESS OF PROVIDING DETECTIVE SERVICES SO AS TO ESTABLISH A VIOLATION OF THE ANTI PINKERTON ACT, 5 U.S.C. SEC. 3108. HOWEVER, SINCE AGENCY WAS UNAWARE OF TELEPHONE LISTING AT TIME OF AWARD AND THEREFORE NOT ON NOTICE TO INQUIRE INTO CONTRACTOR'S STATUS PRIOR TO AWARD, GAO REQUESTS AGENCY TO DETERMINE STATUS OF CONTRACTOR AT THIS TIME IN ORDER TO DETERMINE IF ACT WAS VIOLATED BY AWARD.

PLANT SECURITY, INCORPORATED:

THE NATIONAL CAPITAL HOUSING AUTHORITY (NCHA) HAS AWARDED A CONTRACT (NO. CHM-1923) FOR GUARD AND SECURITY SERVICES TO UNITED INVESTIGATIVE AGENCIES FOLLOWING A DETERMINATION BY NCHA'S CONTRACTING OFFICER THAT THE LOW BIDDER, PLANT SECURITY, INCORPORATED, WAS NOT RESPONSIBLE. PLANT SECURITY MAINTAINS THAT IT WAS THE LOW RESPONSIBLE BIDDER AND, AS SUCH, SHOULD HAVE RECEIVED THE AWARD. PLANT SECURITY ALSO ALLEGES THAT UNITED IS INELIGIBLE FOR AWARD SINCE UNDER THE ANTI-PINKERTON ACT, U.S.C. SEC. 3108 (1970), THE DISTRICT OF COLUMBIA MAY NOT CONTRACT WITH AN ORGANIZATION WHICH PERFORMS INVESTIGATIVE SERVICES.

COUNSEL FOR PLANT SECURITY NOTES THAT AT THE TIME OF SOLICITATION AND AWARD THE PROTESTER HELD THE PRECEDING CONTRACT FOR THE SERVICES INVOLVED HERE AND THAT IT WAS INCONSISTENT FOR NCHA TO REQUEST A BID FROM THE CONTRACTOR AND TWO WEEKS LATER DISQUALIFY IT ON THE BASIS OF POOR PAST PERFORMANCE. MOREOVER, COUNSEL OBJECTS TO NCHA'S EVALUATION OF PROTESTER'S PAST PERFORMANCE SINCE IT IS ALLEGED THAT THE FIRM HAS ALWAYS RESPONDED PROMPTLY TO CORRECT PROBLEMS CONCERNING THE PERFORMANCE OF ITS GUARDS. IT IS ARGUED THAT AWARDING THE CONTRACT TO UNITED WILL NOT BRING ABOUT A SIGNIFICANT CHANGE IN PERFORMANCE SINCE IT IS LIKELY THAT UNITED WILL HIRE A SIGNIFICANT NUMBER OF GUARDS EMPLOYED BY PROTESTER AND SINCE UNITED HAS ALSO APPROACHED A SUPERVISOR EMPLOYED BY THE PROTESTER. TO THE EXTENT THE DISQUALIFICATION OF PLANT SECURITY IS BASED ON INADEQUATE SUPERVISION OF ITS GUARDS, PROTESTER CONTENDS IT WOULD BE UNFAIR TO HOLD IT TO NEW STANDARDS ESTABLISHED IN THE INSTANT PROCUREMENT WHICH WERE NOT REQUIRED UNDER ITS PAST CONTRACT.

NCHA STATES THAT PLANT SECURITY'S CONTENTION THAT IT HAS ALWAYS ACTED PROMPTLY TO CORRECT THE PERFORMANCE OF ITS GUARDS UNDER THE PRIOR CONTRACT IS NOT CORRECT. IT IS REPORTED THAT WHILE NCHA HAS MET WITH PLANT SECURITY'S REPRESENTATIVES ON NUMEROUS OCCASIONS, A SATISFACTORY RESOLUTION OF THE PERFORMANCE PROBLEMS WAS NOT EFFECTED. IN SUPPORT OF ITS POSITION NCHA HAS SUBMITTED DOCUMENTATION TENDING TO SHOW AN EXTENSIVE AMOUNT OF NON-SERVICE, LONG TERM AND EXTENSIVE ABUSE OF TELEPHONES BY GUARDS, FAILURE TO MAKE OR FILE REPORTS AND INAPPROPRIATE GUARD BEHAVIOR. NCHA ALSO STATES THAT NUMEROUS OTHER INSTANCES OF NONPERFORMANCE HAVE BEEN REPORTED BY THE CONCERNED RESIDENTS AND STAFF. HOWEVER, THESE WERE NOT ENTERED INTO THE RECORDS OF THE SECURITY OFFICE.

AS A GENERAL RULE THIS OFFICE IS NOT REQUIRED TO DETERMINE WHETHER OR NOT A FIRM IS RESPONSIBLE BUT MERELY ASCERTAINS WHETHER THE INFORMATION THAT THE CONTRACTING OFFICER RELIED UPON REASONABLY SUPPORTS THE CONCLUSION REACHED. ORDINARILY A DETERMINATION THAT A BIDDER IS NONRESPONSIBLE INVOLVES A MATTER OF BUSINESS JUDGMENT WITH WHICH WE DO NOT INTERFERE, UNLESS THE RECORD SHOWS THAT THE DETERMINATION IS UNREASONABLE. 43 COMP. GEN. 228, 230 (1963).

THE RECORD BEFORE US IN THIS CASE PROVIDES, IN OUR OPINION, AMPLE EVIDENCE OF PRIOR POOR PERFORMANCE BY PLANT SECURITY. THE MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS REQUIRE, IN PART, THAT THE FIRM HAVE A SATISFACTORY RECORD OF PERFORMANCE AND CONTRACTORS WHO ARE OR HAVE BEEN SERIOUSLY DEFICIENT IN CURRENT OR RECENT CONTRACT PERFORMANCE ARE PRESUMED TO BE UNABLE TO MEET THIS REQUIREMENT. FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-1.1203-1(C) (1963 ED.). IN OUR OPINION THIS RECORD OF POOR PAST PERFORMANCE DID NOT RESULT FROM THE APPLICATION OF HIGHER STANDARDS THAN THAT REQUIRED UNDER THE PAST CONTRACT PROVISIONS. NOR DO WE BELIEVE THAT IT IS INCONSISTENT TO SOLICIT A BID FROM A FIRM BIDDING ON THE PRECEDING CONTRACT AND TO SUBSEQUENTLY DISQUALIFY IT ON THE BASIS, AS ALLEGED, OF PAST POOR PERFORMANCE, SINCE SUCH FIRMS ARE SOLICITED TO INSURE THAT PERTINENT RESPONSIBILITY INFORMATION IS OBTAINED ON A CURRENT BASIS WITH RELATION TO THE DATE OF CONTRACT AWARD. SEE FPR SEC. 1-1.1205.2.

INSOFAR AS PLANT SECURITY QUESTIONS THE CAPABILITIES OF UNITED, THIS OFFICE NO LONGER REVIEWS SITUATIONS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY, EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD OR WHERE THERE IS A QUESTION CONCERNING WHETHER THE BIDDER MEETS DEFINITIVE RESPONSIBILITY GUIDELINES OR REQUIREMENTS LISTED IN THE SOLICITATION. CENTRAL METAL PRODUCTS, INC., B-181724, JULY 26, 1974, 54 COMP. GEN. AND DATA TEST CORPORATION, B-181199, DECEMBER 20, 1974, 54 COMP. GEN. . HOWEVER, WITH REGARD TO UNITED'S ALLEGED USE OF THE PROTESTER'S FORMER EMPLOYEES, WE BELIEVE IT IS APPROPRIATE TO NOTE THAT NCHA WAS CONCERNED PRIMARILY WITH THE PROTESTER'S SUPERVISION OF ITS EMPLOYEES. OBVIOUSLY NCHA BELIEVES THAT UNITED HAS THE CAPABILITY TO PROPERLY SUPERVISE ITS EMPLOYEES INCLUDING ANY OF THE PROTESTER'S FORMER EMPLOYEES THAT UNITED MAY HAVE HIRED. AS STATED, WE WILL NOT UNDERTAKE TO REVIEW THE AGENCY'S JUDGMENT IN THIS REGARD.

PLANT SECURITY ALSO ARGUES THAT NOTWITHSTANDING UNITED'S BID CERTIFICATION THAT IT WAS NOT A DETECTIVE AGENCY THERE IS EVIDENCE THAT UNITED PROVIDES INVESTIGATIVE SERVICES AND UNDER THE ANTI-PINKERTON ACT IT MAY NOT BE EMPLOYED BY THE UNITED STATES OR THE DISTRICT OF COLUMBIA. THIS CONNECTION, COUNSEL HAS FURNISHED A COPY OF A PAGE IN THE CLASSIFIED TELEPHONE DIRECTORY OF THE DISTRICT OF COLUMBIA FOR THE PERIOD BEGINNING MAY 1973 UNDER THE HEADING OF "GUARD & PATROL SERVICE" IN WHICH UNITED IS LISTED AS PERFORMING INVESTIGATIONS, POLYGRAPH SERVICE AND FINGERPRINTING.

AS POINTED OUT BY COUNSEL, A PRIOR DECISION OF THIS OFFICE, B-176307, MARCH 21, 1973, STATES THAT THE CONTINUED USE OF TELEPHONE LISTINGS FOR DETECTIVE SERVICES SHOULD PROMPT THE AGENCY TO INQUIRE FURTHER INTO THE FIRM'S STATUS BEFORE RELYING ON ANTI-PINKERTON ACT CERTIFICATION IN THE FIRM'S BID. HOWEVER, IN THAT DECISION WE ALSO STATED THAT A TELEPHONE LISTING ALONE IS NOT SUFFICIENT EVIDENCE THAT A CONTRACTOR PROVIDING GUARD SERVICE IS ENGAGED IN THE BUSINESS OF PROVIDING DETECTIVE SERVICES SO AS TO ESTABLISH A VIOLATION OF THE ANTI-PINKERTON ACT, 5 U.S.C. SEC. 3108 (1970). IN THIS CONNECTION, NCHA ADVISED THIS OFFICE BY LETTER DATED JANUARY 24, 1975, THAT AT THE TIME OF AWARD IT WAS UNAWARE OF THIS TELEPHONE LISTING AND HENCE WAS NOT ON NOTICE TO INQUIRE INTO UNITED'S STATUS. HOWEVER, WE ARE REQUESTING NCHA TO CONSIDER UNITED'S STATUS AT THIS TIME IN ORDER TO DETERMINE ANY POSSIBLE VIOLATION OF THE ANTI- PINKERTON ACT AS ALLEGED.