B-161312, FEB. 16, 1968

B-161312, FEB. 16, 1968

BIDDERS - RESPONSIBILITY - TWO FIRMS DECISION TO NEW ENGLAND TANK CLEANING COMPANY DENYING PROTEST AGAINST REJECTION OF BID OF NEW ENGLAND TANK INDUSTRIES OF NEW HAMPSHIRE FOR OPERATION OF GOVT.-OWNED PETROLEUM STORAGE FACILITY BY DEFENSE SUPPLY AGENCY ON BASIS OF NONRESPONSIBILITY. WHERE ONE OF TWO FIRMS HAVING AN IDENTITY OF INTEREST UNDER CONTROL OF SAME PERSON WAS AWARDED A CONTRACT AND THE OTHER DENIED A CONTRACT BECAUSE OF LACK OF TENACITY, PERSERVERANCE AND BUSINESS INTEGRITY THERE IS NO SHOWING OF LACK OF GOOD FAITH OR REASONABLE BASIS FOR DETERMINATION SINCE RECORD SHOWS ONE CONTRACT INVOLVED GOVERNMENT-OWNED FACILITIES AND OTHER CONTRACTOR'S OWN FACILITY.

TO NEW ENGLAND TANK CLEANING COMPANY:

WE HAVE CAREFULLY CONSIDERED THE PROTEST, SUBMITTED BY YOUR LETTER DATED NOVEMBER 28, 1967, CONCERNING YOUR FAILURE, BIDDING AS NEW ENGLAND TANK INDUSTRIES OF NEW HAMPSHIRE, INCORPORATED, TO RECEIVE AWARD AS THE LOW BIDDER UNDER INVITATION FOR BIDS NO. DSA 600-68-B 0054, ISSUED FOR THE OPERATION, MAINTENANCE, AND PROTECTION OF THE GOVERNMENT-OWNED PETROLEUM STORAGE FACILITY AT LYNN HAVEN, FLORIDA. THE CONTRACTING OFFICER WAS UNABLE TO FIND NEW ENGLAND TANK INDUSTRIES OF NEW HAMPSHIRE TO BE A RESPONSIBLE BIDDER AS REQUIRED BY ARMED SERVICES PROCUREMENT REGULATION 1- 904. IN MAKING THAT ADVERSE DETERMINATION THE CONTRACTING OFFICER CONSIDERED THE RECORD OF NEW ENGLAND TANK CLEANING COMPANY UNDER CONTRACT NO. DSA 6-6666, WHICH WAS THE SUBJECT OF OUR DECISION B-161312, DATED MAY 5, 1967. ON NOVEMBER 22, 1967, ONE DAY BEFORE NEW ENGLAND TANK INDUSTRIES OF NEW HAMPSHIRE WAS HELD NOT RESPONSIBLE FOR LACK OF TENACITY, PERSERVERANCE AND BUSINESS INTEGRITY, THE SAME CONTRACTING OFFICER APPROVED NEW ENGLAND TANK CLEANING COMPANY FOR THE RENEWAL OF CONTRACT NO. DSA 6-6660 FOR THE TERMINAL AT DOVER, DELAWARE. THE CRUX OF YOUR PROTEST CONCERNS THESE TWO SEEMINGLY INCONSISTENT DETERMINATIONS OF THE RESPONSIBILITY OF YOUR TWO INTERTWINED CORPORATIONS BY THE SAME CONTRACTING OFFICER BASED UPON THE PERFORMANCE OF NEW ENGLAND TANK CLEANING COMPANY UNDER CONTRACT NO. DSA 6-6666.

ALTHOUGH NOT RAISED BY YOUR PROTEST, AS POINTED OUT IN OUR DECISIONS B- 150161, B-150164, DECEMBER 17, 1962, WE FIND NO OBJECTION TO CONSIDERING SEPARATE CORPORATIONS AS A SINGLE ENTITY FOR THE DETERMINATION OF RESPONSIBILITY WHERE THE SAME PERSON CONTROLS BOTH.

AS WE CONSISTENTLY HAVE HELD IN PAST DECISIONS CONCERNING YOUR CORPORATIONS, THE DETERMINATION OF RESPONSIBILITY OF A BIDDER IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE AGENCY AND WILL NOT BE QUESTIONED BY OUR OFFICE IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF REASONABLE BASIS FOR THE DETERMINATION. SEE B-148189, APRIL 16, 1962; B-138337, MARCH 6, 1959, AND APRIL 15, 1959; B-138233, FEBRUARY 24, 1959, AND APRIL 15, 1959. THE FACT THAT YOU HAVE RECEIVED A RENEWAL OF YOUR CONTRACT DSA 6-6660 FOR A SIMILAR PROCUREMENT FROM THE SAME CONTRACTING OFFICER IS NOT CONTROLLING IN DETERMINING YOUR RESPONSIBILITY IN THE PRESENT PROCUREMENT. THE CONTROLLING FACTOR IN EACH DETERMINATION IS THE BIDDER'S APPARENT ABILITY TO COMPLY WITH THE PARTICULAR REQUIREMENTS SET OUT IN THE SPECIFIC CONTRACT TO BE AWARDED. IN THIS REGARD, THE CONTRACTING OFFICER STATED, IN PART: "* * * FOR SOME REASON, THE POOR RECORD OF PERFORMANCE AND EVIDENCE OF A LACK OF INTEGRITY AND DESIRE TO PERFORM IN A SATISFACTORY MANNER SEEMS TO BE PRIMARILY CONFINED TO THE OPERATION OF GOVERNMENT-OWNED FACILITIES. PERFORMANCE APPEARS SOMEWHAT BETTER WHEN OPERATING WITH FAMILY-OWNED TERMINALS AND EQUIPMENT. * * *" CONTRACTS NO. DSA 600-68 B-0054 AND NO. DSA 6-6666 INVOLVED THE OPERATION OF GOVERNMENT- OWNED FACILITIES. CONTRACT NO. DSA 6-6660 INVOLVED THE OPERATION OF YOUR OWN PLANT AT DOVER, DELAWARE. THESE DISTINGUISHING FACTS RESULTED IN DIFFERENT DETERMINATIONS WHEN GOVERNMENT-OWNED RATHER THAN SELF-OWNED FACILITIES WERE INVOLVED. THEREFORE, WE DO NOT AGREE THAT A FAVORABLE DETERMINATION OF RESPONSIBILITY UNDER CONTRACT NO. DSA 6-6660 (YOUR OWN FACILITIES) ILLUSTRATES THAT AN UNFAVORABLE DETERMINATION OF RESPONSIBILITY UNDER CONTRACT NO. DSA 600-68-B-0054 (GOVERNMENT-OWNED FACILITIES) BASED ON EVIDENCE OF LACK OF TENACITY, PERSERVERANCE AND BUSINESS INTEGRITY SHOWN IN PERFORMANCE OF CONTRACT NO. DSA 6-6666 (GOVERNMENT-OWNED FACILITIES), WAS NOT MADE IN GOOD FAITH OR LACKS A REASONABLE BASIS.

YOUR LETTER OF NOVEMBER 28, 1967, ALSO ASSERTS THAT THE APPROVED CONTRACTOR FOR THE LYNN HAVEN TERMINAL IS USING THE SAME SUPERINTENDENT AND PERSONNEL YOU HAD AGREED TO EMPLOY. THE WRITTEN RECORD PRESENTED TO THIS OFFICE DOES NOT SUSTAIN THAT CONTENTION. FURTHER, THE CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY WAS BASED ON EVIDENCE WHICH REFLECTED UPON ALL LEVELS OF MANAGERIAL PERSONNEL NOT SOLELY FIELD LEVEL.

FOR THE ABOVE REASONS, WE FIND NO BASIS TO OBJECT TO THE ADMINISTRATIVE DETERMINATION UNDER INVITATION FOR BIDS NO. DSA 600-68 B-0054.