B-176814, NOV 16, 1972

B-176814, NOV 16, 1972

BID PROTEST - RESPONSIBILITY - BIDDER INTEGRITY DECISION DENYING THE PROTEST OF BUILDING MAINTENANCE CORPORATION AGAINST THE PROPOSED AWARD OF A CONTRACT TO G & C CONSTRUCTION COMPANY UNDER AN IFB ISSUED BY THE NATIONAL INSTITUTES OF HEALTH, BETHESDA, MD. ALTHOUGH THE INTEGRITY OF A BIDDER MUST BE CONSIDERED IN DETERMINING ITS RESPONSIBILITY AS A PROSPECTIVE GOVERNMENT CONTRACTOR, FPR 1-1.1203 1, THE RECORD IN THIS CASE GIVES NO INDICATION THAT THE ADMINISTRATIVE AFFIRMATIVE DETERMINATION OF INTEGRITY WAS ERRONEOUS.

TO BUILDING MAINTENANCE CORPORATION:

WE REFER TO YOUR LETTERS DATED AUGUST 15 AND SEPTEMBER 21, 1972, PROTESTING AGAINST THE PROPOSED AWARD OF A CONTRACT TO G & C CONSTRUCTION CORPORATION UNDER INVITATION FOR BIDS NO. NIH-72B-(V)-303, AS AMENDED, ISSUED BY THE NATIONAL INSTITUTES OF HEALTH (NIH), BETHESDA, MARYLAND.

THE ABOVE-MENTIONED SOLICITATION, ISSUED MARCH 24, 1972, AS A 100 PERCENT SET-ASIDE FOR SMALL BUSINESS, IS FOR THE CLEANING OF STRUCTURAL FACING TILE WALLS, COLUMNS, MASONARY, METAL PARTITIONS, AND WINDOWS IN BUILDING 11 AT NIH. BIDS WERE OPENED ON MAY 12, 1972, AND THE LOWEST OF TEN BIDS RECEIVED WAS SUBMITTED BY G & C CONSTRUCTION CORPORATION AT $7,472.25. YOUR BID WAS THIRD LOW AT $12,288.00. THE CONTRACTING OFFICER RECOMMENDED AWARD TO G & C AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER.

YOUR PROTEST IS BASED UPON YOUR BELIEF THAT G & C CONSTRUCTION CORPORATION IS A NONRESPONSIBLE BIDDER. YOU POINT OUT THAT THE FIRM OF ROUBEN & JANEIRO, INCORPORATED, IS AFFILIATED WITH G & C CONSTRUCTION CORPORATION, AND YOU ALLEGE THAT THEY HAVE BEEN SUBMITTING "HIGH-LOW" BIDS ON GOVERNMENT CONTRACTS OVER THE PAST TWO OR THREE YEARS. YOU POINT SPECIFICALLY TO A RECENT SOLICITATION ISSUED BY THE UNITED STATE SOLDIERS HOME FOR MASONARY REPAIRS, IN WHICH YOU ALLEGE THAT G & C SUBMITTED THE LOW BID, AND ROUBEN & JANEIRO SUBMITTED THE SECOND LOW BID. YOU SUBMIT THAT "WHEN AFFILIATES SUBMIT HIGH LOW BIDS REGULARLY OVER A PERIOD OF TIME AND WHEN ONE OF THE AFFILIATES ALLEGES A MISTAKE IN BID, WHEN THE TWO OF THEM RUN ONE TWO IN THE BIDDING, THIS RAISES A PRESUMPTION OF FRAUD UPON THE UNITED STATES GOVERNMENT AND CREATES A SITUATION OF UNFAIR COMPETITION AGAINST OTHER BIDDERS."

THE CONTRACTING OFFICER IN HIS REPORT TO OUR OFFICE (A COPY OF WHICH WAS PREVIOUSLY FURNISHED TO YOU), REPLIED TO YOUR ALLEGATION AS FOLLOWS:

"*** WE HAVE NO EVIDENCE OR FACTS TO INDICATE THAT G & C CONSTRUCTION CORP. LACKS INTEGRITY, BUSINESS ETHICS, TENACITY, OR PERSERVERANCE, ETC. THIS COMPANY HAS RECEIVED SEVERAL CONTRACTS FOR PROJECTS AT NIH, AND HAS SATISFACTORILY COMPLETED ALL OF THEM. IN ADDITION, ROUBEN AND JANEIRO, INC. (THEIR ALLEGED COLLABORATOR) DID NOT SUBMIT A BID ON THIS SOLICITATION; THEREFORE, WE FAIL TO SEE THE RELEVANCE OF THE ALLEGATIONS BY THE PROTESTANT AGAINST THIS FIRM."

ON THE BASIS OF THE CONTRACTING OFFICER'S STATEMENT AND THE FAILURE OF THE RECORD TO REVEAL ANY EVIDENCE OF FRAUDULENT BIDDING ON THE SUBJECT SOLICITATION, THE AGENCY RECOMMENDS AWARD TO G & C, THE LOW BIDDER. THIS REGARD, IT IS REPORTED BY THE AGENCY THAT IN RESPONSE TO YOUR INQUIRY THE FEDERAL BUREAU OF INVESTIGATION, THE APPROPRIATE INVESTIGATORY AGENCY, HAS INITIATED AN INVESTIGATION INTO THE PRACTICES OF WHICH YOU COMPLAIN. IT IS FURTHER REPORTED, HOWEVER, THAT SO FAR THE FBI HAS NOT PROVIDED THE PROCURING ACTIVITY WITH ANY EVIDENCE WHICH MIGHT TEND TO SUPPORT THE ALLEGATIONS YOU HAVE MADE.

THERE IS NO QUESTION BUT THAT THE INTEGRITY OF A BIDDER IS A PROPER MATTER FOR CONSIDERATION IN DETERMINING THE BIDDER'S RESPONSIBILITY IN CONNECTION WITH THE PERFORMANCE OF A GOVERNMENT CONTRACT. SEE 39 COMP. GEN. 468, 470 (1959), AND THE COURT CASES THEREIN CITED. THE REQUIREMENT IN FEDERAL PROCUREMENT REGULATIONS (FPR) 1-1.1203-1 OF A SATISFACTORY RECORD OF INTEGRITY IS ONE OF THE STANDARDS WHICH A PROSPECTIVE GOVERNMENT CONTRACTOR MUST MEET. BASED ON THE RECORD, WE FIND NO REASON TO QUESTION THE ADMINISTRATIVE DETERMINATION THAT G & C HAS THE REQUISITE INTEGRITY TO QUALIFY FOR THE AWARD. IT IS SIGNIFICANT TO NOTE THAT IT IS NOT UNUSUAL FOR BIDS TO BE SUBMITTED ON A SINGLE PROCUREMENT BY TWO OR MORE COMPANIES COMMONLY OWNED AND/OR CONTROLLED, SEE 39 COMP. GEN. 892 (1960), AND THAT IN THIS CASE G & C'S AFFILIATE DID NOT SUBMIT ANY BID.

UNDER THE CIRCUMSTANCES, WE ARE UNABLE TO CONCLUDE THAT G & C IS A NONRESPONSIBLE BIDDER, OR THAT ANY LEGAL BASIS EXISTS FOR OBJECTING TO THE PROPOSED AWARD TO G & C.

ACCORDINGLY, YOUR PROTEST IS DENIED.