B-135585, JUN. 27, 1958

B-135585, JUN. 27, 1958

TO R. E. LEE ELECTRICAL COMPANY, INC.:

REFERENCE IS MADE TO YOUR ATTORNEY'S LETTER OF JUNE 7, 1958, REQUESTING RECONSIDERATION OF OFFICE DECISION TO YOU OF JUNE 6, 1958, WHEREIN IT WAS HELD THAT THERE EXISTS NO LEGAL BASIS FOR TAKING EXCEPTION TO THE ACTION OF THE GENERAL SERVICES ADMINISTRATION IN AWARDING A CONTRACT TO WALTER TRULAND CORPORATION FOR REPLACING HIGH VOLTAGE CABLE AT THE PENTAGON BUILDING.

AS INDICATED IN OUR DECISION THE GENERAL SERVICES ADMINISTRATION, IN SUPPORT OF ITS ACTION, PRESENTED THE FOLLOWING FACTS:

THE PENTAGON IS THE CENTER OF THE MILITARY COMMUNICATION NETWORK AND OPERATES TWENTY-FOUR HOURS EACH AND EVERY DAY WITH CIRCUITS OPEN TO EVERY PART OF THE WORLD. OPERATIONAL COMMAND POSTS FOR THE MILITARY SERVICES ARE LOCATED WITHIN THE PENTAGON BUILDING AND THEY MAY NOT BE SHUT DOWN, EVEN MOMENTARILY. FOR THESE REASONS GREAT CARE MUST BE EXERCISED IN THE SELECTION OF AN ORGANIZATION TO WHOM IS ENTRUSTED THE RESPONSIBILITY FOR REPLACING THE HIGH VOLTAGE CABLE. IN VIEW OF THE IMPORTANCE OF THE WORK TO BE PERFORMED, THE INVITATION FOR BIDS REQUIRED THAT THE CONTRACTOR HAVE SUCCESSFUL EXPERIENCE IN INSTALLING ELECTRICAL EQUIPMENT AND MATERIAL OF THE TYPE AND CLASSES INVOLVED, THAT THE CONTRACTOR HAVE A SATISFACTORY PERFORMANCE RECORD ON PRIOR JOBS AND THAT SUBSTANTIATING DATA BE FURNISHED TO PROVE COMPETENCY AND QUALIFICATIONS.

AS YOU WERE ADVISED IN OUR DECISION OF JUNE 6, 1958, AFTER THE OPENING OF BIDS, THE GENERAL SERVICES ADMINISTRATION MADE AN INVESTIGATION OF THE LOW BIDDERS AND IT WAS DETERMINED THAT THE THREE LOW BIDDERS--- YOU WERE THE THIRD LOWEST--- DID NOT QUALIFY AS RESPONSIBLE BIDDERS. YOUR ATTORNEY HAS CITED DECISIONS OF OUR OFFICE IN SUPPORT OF THE REQUEST FOR RECONSIDERATION AND CONTESTS THE LEGALITY OF THE GENERAL SERVICES ADMINISTRATION EXERCISE OF ITS AUTHORITY IN THE MATTER. FURTHER, YOUR ATTORNEY URGES THAT THE CONTRACT WITH WALTER TRULAND CORPORATION BE CANCELED AND THAT A CONTRACT FOR THE WORK INVOLVED BE AWARDED TO ONE OF THE THREE LOWEST BIDDERS, FOUND BY THE ADMINISTRATIVE OFFICE AS NOT QUALIFYING AS RESPONSIBLE BIDDERS.

IT IS OF COURSE FUNDAMENTAL IN THE AWARD OF GOVERNMENT CONTRACTS THAT THE FACT THAT AN AWARD MUST BE MADE AFTER ADVERTISING FOR BIDS DOES NOT REQUIRE THE ACCEPTANCE OF THE BID SUBMITTED BY ONE NOT QUALIFIED TO PERFORM THE NECESSARY SERVICES. O-BRIEN V. CARNEY, 6 F.SUPP. 761, 762. IN MAKING AWARDS OF SUCH CONTRACTS THE PUBLIC INTEREST REQUIRES THAT THEY BE AWARDED ONLY TO THE LOWEST RESPONSIBLE BIDDER IN EACH CASE. HIBBS ET AL. V. ARENSBERG ET AL. 276 PA. 24, 119 A. 727.

THE MAGNITUDE AND IMPORTANCE OF THE WORK HERE INVOLVED APPEAR TO BE SUCH AS TO WARRANT THE REQUIREMENT INCLUDED IN THE INVITATION FOR BIDS THAT BIDDERS FURNISH WITH THEIR BIDS INFORMATION WHICH WOULD ENABLE THE GOVERNMENT TO ESTABLISH THEIR ABILITY, OR LACK OF ABILITY, TO PERFORM THE WORK. THE INCLUSION OF SUCH FACTORS IN THE INVITATION FOR BIDS PLACED THE BURDEN UPON BIDDERS TO SATISFY THE GOVERNMENT THAT THEY HAD THE PERSONNEL, EQUIPMENT, EXPERIENCE AND ABILITY TO PERFORM THE WORK COVERED BY THE INVITATION. AFTER A THOROUGH INVESTIGATION THE GENERAL SERVICES ADMINISTRATION DETERMINED THAT FOR THE PRESENT WORK YOU DID NOT QUALIFY AS A RESPONSIBLE BIDDER. AS STATED IN 26 COMP. GEN. 676, IT HAS BEEN HELD THAT THE WORD "RESPONSIBLE" IMPORTS SOMETHING MORE THAN PECUNIARY ABILITY AND THAT IN THE SELECTION OF THE LOWEST RESPONSIBLE BIDDER, FEDERAL AND MUNICIPAL OFFICERS ARE REQUIRED TO CONSIDER NOT ONLY THE FINANCIAL RESOURCES BUT ALSO THE FITNESS AND OVER-ALL ABILITY OF THE BIDDER SUCCESSFULLY TO FULFILL THE CONTRACT REQUIREMENTS. DETERMINATION OF THE QUALIFICATIONS OF BIDDERS IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICER CONCERNED.

WITH REGARD TO THE SEVERAL DECISIONS OF OUR OFFICE REFERRED TO BY YOUR ATTORNEY IN CONNECTION WITH ITEMS TWO AND THREE MENTIONED IN HIS LETTER, IT MAY BE POINTED OUT THAT THESE DECISIONS IN EACH CASE ARE CITED IN SUPPORT OF YOUR POSITION ON ONLY ONE OF THE ISSUES HERE INVOLVED. IN THE INSTANT CASE, WHILE THE MATTERS REFERRED TO UNDER THESE TWO ITEMS WERE TAKEN INTO CONSIDERATION TO SOME EXTENT, THEY DO NOT APPEAR TO HAVE BEEN THE DOMINANT ISSUE IN DECIDING WHETHER YOU QUALIFIED AS A RESPONSIBLE BIDDER IN VIEW OF THE REPORTED IMPORTANCE OF WORK INVOLVED. WHILE NOT SO LISTED, IT APPEARS FROM THE REPORT OF THE GENERAL SERVICES ADMINISTRATION TO OUR OFFICE THAT SUCCESSFUL EXPERIENCE ON COMPARABLE WORK WAS THE MAJOR FACTOR TAKEN INTO CONSIDERATION IN AWARD OF THE CONTRACT. ALTHOUGH IT IS ALLEGED THAT YOUR COMPANY WAS NOT AFFORDED AN OPPORTUNITY TO PRESENT EVIDENCE OF ITS QUALIFICATIONS "AT OR DURING THE DELIBERATIONS OF THE CHIEF OF THE DESIGN AND CONSTRUCTION DIVISION AND THE BOARD OF AWARD OF REGION 3, DESIGN AND CONSTRUCTION DIVISION, PUBLIC BUILDINGS SERVICE," THE REPORT FROM REGION 3, STATES THAT MR. LEE OF YOUR FIRM CALLED TO DISCUSS THE PROJECT AND AFTER RECEIVING AN INQUIRY OF FEBRUARY 13, 1958, WROTE A LETTER ON FEBRUARY 18 STATING HE WAS FAMILIAR WITH THE SPECIFICATIONS. THE REPORT FURTHER STATES THAT "ON MARCH 6, MR. LEE WROTE US, FOLLOWING A MEETING IN THE OFFICE OF OUR REGIONAL COUNSEL, ON TUESDAY, MARCH 4, WHERE THE PROJECT HAD BEEN DISCUSSED, AND SUBMITTED A LIST OF PROJECTS WHICH HE CLAIMED WERE COMPARABLE WITH THE ONE AT THE PENTAGON BUILDING.' WHILE REFERENCE IS MADE TO YOUR EXPERIENCE ON A SMALLER PENTAGON PROJECT, THAT FACT WAS FULLY CONSIDERED BY THE CONTRACTING OFFICE AND NOT REGARDED AS SUCCESSFUL EXPERIENCE ON COMPARABLE WORK SINCE IT INCLUDED A VERY LIMITED AMOUNT OF HIGH TENSION WORK. ALSO, WHILE REFERENCE IS MADE TO WORK RECENTLY COMPLETED BY YOU, THAT MATTER OBVIOUSLY WAS NOT FOR CONSIDERATION AT THE TIME AND INSOFAR AS THE RECORD SHOWS, WAS NOT EVEN PRESENTED FOR CONSIDERATION.