B-148189, MAY 11, 1962

B-148189, MAY 11, 1962

TO NEW ENGLAND TANK CLEANING COMPANY:

YOUR LETTER OF APRIL 19, 1962, REFERS TO OUR DECISION OF APRIL 16, 1962, ADDRESSED TO YOU IN RESPONSE TO YOUR LETTER PROTESTING THE ACTION OF THE DEFENSE PETROLEUM SUPPLY CENTER IN REJECTING YOUR COMPANY'S LOW BID SUBMITTED IN RESPONSE TO INVITATION NO. 62-81, AS AMENDED, COVERING THE FURNISHING OF AIRCRAFT FUEL DELIVERY SERVICES AT THE NAVAL AIR STATION, MOFFETT FIELD, CALIFORNIA, DURING THE PERIOD FROM APRIL 1, 1962, THROUGH MARCH 31, 1963. IN OUR DECISION WE STATED THAT ON THE RECORD WE COULD SEE NO PROPER BASIS AT THAT TIME UPON WHICH WE COULD OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION TO REJECT YOUR COMPANY'S BID.

AS YOU WERE ADVISED IN OUR DECISION OF APRIL 16, 1962, YOUR BID WAS REJECTED BECAUSE THE CONTRACTING OFFICER COULD NOT MAKE AN AFFIRMATIVE DETERMINATION, AS REQUIRED BY SECTION 1-904.1 OF THE ARMED SERVICES PROCUREMENT REGULATION, THAT YOUR COMPANY WAS A RESPONSIBLE BIDDER. SUCH AFFIRMATIVE DETERMINATION WAS PREVENTED SPECIFICALLY BY YOUR COMPANY'S POOR RECORD OF PERFORMANCE ON PRIOR CONTRACTS FOR SIMILAR WORK, NAMELY, THE CONTRACT COVERING SERVICES AT THE NAVAL AIR STATION AT ANACOSTIA, D.C., AND ANDREWS AIR FORCE BASE, MARYLAND, AND THE CONTRACT COVERING SERVICES AT GLENVIEW, ILLINOIS, WHICH WERE TERMINATED FOR DEFAULT ON DECEMBER 28, 1961, AND NOVEMBER 30, 1961, RESPECTIVELY.

YOU STATE THAT THE QUESTION OF WHETHER THE CONTRACT COVERING SERVICES AT THE NAVAL AIR STATION AT ANACOSTIA, D.C., AND ANDREWS AIR FORCE BASE, MARYLAND, AND THE CONTRACT COVERING SERVICES AT GLENVIEW, ILLINOIS, WERE PROPERLY TERMINATED FOR DEFAULT BY THE CONTRACTING OFFICER IS NOW BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS FOR CONSIDERATION; THAT IN ARRIVING AT OUR DECISION OUR OFFICE COULD NOT HAVE KNOWN THIS AS WE WERE RULING THAT THE GOVERNMENT WAS RIGHT IN ITS DECISION TO TERMINATE THE CONTRACTS AT THESE PLACES; AND THAT YOU WISH TO BE ADVISED AS TO HOW WE COULD REACH A DECISION UNDER THESE CIRCUMSTANCES.

AT THE TIME WE RENDERED OUR DECISION, WE WERE AWARE THAT AT THAT TIME THERE WAS PENDING BEFORE THE ARMED SERVICES BOARD OF CONTRACT APPEALS YOUR COMPANY'S APPEAL FROM THE DEFAULT TERMINATIONS AND THE DECISION OF THE CONTRACTING OFFICER THAT THE CONTRACTS COVERING SERVICES AT ANACOSTIA, D.C., ANDREWS AIR FORCE BASE, MARYLAND, AND GLENVIEW, ILLINOIS, WERE PROPERLY TERMINATED FOR DEFAULT, AND WE SO STATED IN THE SECOND PARAGRAPH OF PAGE ONE OF OUR DECISION. WE BELIEVE THAT THE DECISION SPEAKS FOR ITSELF INSOFAR AS CONCERNS THE BASES UPON WHICH WE CONCLUDED THAT THE REJECTION OF YOUR COMPANY'S BID WAS JUSTIFIED ON THE RECORD.

THE DETERMINATION AS TO WHETHER A CONTRACT SHOULD BE TERMINATED BECAUSE OF THE CONTRACTOR'S BREACH OF THE CONTRACT STIPULATIONS IS A MATTER FOR PRIMARY CONSIDERATION BY THE DEPARTMENT OR AGENCY CONCERNED. SUCH A DETERMINATION INVOLVES A QUESTION OF FACT--- AS DISTINGUISHED FROM A QUESTION OF LAW--- AND IN CASES INVOLVING DISAGREEMENTS BETWEEN THE ADMINISTRATIVE OFFICERS AND CLAIMANTS AS TO THE FACTS, THIS OFFICE NECESSARILY MUST ACCEPT THE FACTS AS REPORTED BY THE DESIGNATED OFFICIAL WHO WAS AUTHORIZED UNDER THE CONTRACT TO DETERMINE PARTICULAR FACTS. SEE 20 COMP. GEN. 573, 579, AND COURT CASES CITED THEREIN.

A CAREFUL CONSIDERATION OF YOUR LETTER DISCLOSES THAT IT CONTAINS NO NEW OR MATERIAL EVIDENCE SUFFICIENT TO JUSTIFY OR WARRANT ANY CHANGE IN THE CONCLUSION HERETOFORE REACHED IN THE MATTER. ACCORDINGLY, THE DECISION OF APRIL 16, 1962, IS AFFIRMED.