B-164090, JUN. 21, 1968

B-164090, JUN. 21, 1968

TO MR. EDWARD D. LAPPERRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1968, PROTESTING ON BEHALF OF THE A.M. TURNER COMPANY, MAYWOOD, ILLINOIS, THE REJECTION OF ITS BID AND THE POSSIBLE AWARD OF A CONTRACT TO A HIGHER BIDDER UNDER INVITATION FOR BIDS NO. DACW23-68-B-0007, ISSUED BY THE CHICAGO DISTRICT, CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, ON THE BASIS OF SPECIFICATIONS FOR CALUMET RIVER CHANNEL IMPROVEMENTS.

THE RECORD NOW SHOWS THAT THE BID OF THE A.M. TURNER COMPANY WAS REJECTED BECAUSE THE CONTRACTING OFFICER DETERMINED THAT THE COMPANY WAS NOT A RESPONSIBLE BIDDER. HOWEVER, WE ARE ALSO ADVISED BY THE DEPARTMENT OF THE ARMY THAT THE SECRETARY OF LABOR'S WAGE RATE DETERMINATIONS WHICH WOULD HAVE BEEN APPLICABLE IN THE CASE OF AN AWARD MADE UNDER INVITATION FOR BIDS NO. DACW23-68-B-0007, EXPIRED ON APRIL 16, 1968, AND THAT IT THEREFORE APPEARED TO BE NECESSARY TO CANCEL THE INVITATION AND READVERTISE FOR BIDS. IN THAT CONNECTION, REFERENCE WAS MADE TO THE DECISION OF OUR OFFICE AT 44 COMP. GEN. 776, WHICH HOLDS THAT A CONTRACT AWARD ON THE BASIS OF WAGE DETERMINATIONS OTHER THAN THOSE AS SET FORTH IN THE INVITATION FOR BIDS IS NOT IN ACCORDANCE WITH THE REQUIREMENTS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A.

THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY ON THE PART OF THE A.M. TURNER COMPANY WAS BASED UPON WHAT WAS CONSIDERED TO BE AN UNSATISFACTORY RECORD OF PERFORMANCE WITH RESPECT TO THREE CURRENT CONTRACTS WHICH HAD BEEN AWARDED TO THAT COMPANY BY THE CHICAGO DISTRICT, CORPS OF ENGINEERS. THOSE CONTRACTS WERE IDENTIFIED AS CONTRACT NO. DA 11 -032-CIVENG-66-40, DATED MAY 17, 1966, CONTRACT NO. DA 11-032-ENG-12408, DATED JUNE 30, 1966, AND CONTRACT NO. DACA23-67-C 0081, DATED APRIL 13, 1967.

SECTION 1-902, ARMED SERVICES PROCUREMENT REGULATION (ASPR), STATES IN PART THAT A RESPONSIBLE PROSPECTIVE CONTRACTOR IS ONE WHICH MEETS THE STANDARDS SET FORTH IN ASPR 1-903.1 AND 1-903.2; AND ONE OF THE MINIMUM STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS, AS PROVIDED FOR IN ASPR 1-903.1, IS THAT THE PROSPECTIVE CONTRACTOR HAVEA SATISFACTORY RECORD OF PERFORMANCE. IN DETERMINING SUCH A QUESTION, IT DOES NOT NECESSARILY FOLLOW THAT A DELAY IN PERFORMANCE OF A PREVIOUS CONTRACT WOULD REQUIRE A CONCLUSION THAT THE PROSPECTIVE CONTRACTOR HAS AN UNSATISFACTORY RECORD OF PERFORMANCE. HOWEVER, THE CONTRACTING OFFICER DETERMINED IN THIS CASE THAT THE A.M. TURNER COMPANY WAS NOT ELIGIBLE TO RECEIVE A CONTRACT AWARD DUE TO ITS FAILURE TO APPLY NECESSARY TENACITY OR PERSEVERANCE IN THE EXECUTION OF THE THREE CURRENT CONTRACTS OF THE CHICAGO DISTRICT WITH THAT COMPANY.

EVIDENCE WAS SUBMITTED IN SUPPORT OF THE DETERMINATION OF NON RESPONSIBILITY AND IT DOES NOT APPEAR THAT THE DETERMINATION MAY BE QUESTIONED BY OUR OFFICE ON THE GROUND THAT IT IS EITHER ARBITRARY OR CAPRICIOUS, OR THAT IT WAS NOT MADE IN GOOD FAITH. AS INDICATED IN 43 COMP. GEN. 228, A DECISION WHETHER A PROSPECTIVE CONTRACTOR IS TO BE CONSIDERED RESPONSIBLE TO PERFORM A CONTRACT TO BE AWARDED INVOLVES A FORECAST WHICH MUST OF NECESSITY BE A MATTER OF JUDGMENT AND THE ADMINISTRATIVE DETERMINATION SHOULD BE ACCORDED FINALITY ABSENT A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS THEREFOR. IN VIEW THEREOF, AND THE FACT THAT NO AWARD COULD NOW BE MADE UNDER INVITATION FOR BIDS NO. DACW23-68-B-0007, IT DOES NOT APPEAR THAT ANY FURTHER ACTION ON THE PROTEST HERE INVOLVED NEED BE TAKEN BY OUR OFFICE.

HOWEVER, SINCE YOU REQUESTED AN OPPORTUNITY TO DISCUSS THE FACTS AND CIRCUMSTANCES OF THE CASE WITH OUR REPRESENTATIVES, AND THERE IS THE POSSIBILITY THAT YOUR CLIENT MIGHT SUBMIT THE LOW BID UNDER THE NEW ADVERTISEMENT ON THE SAME PROJECT, YOU ARE ADVISED THAT A CONFERENCE WILL BE ARRANGED IF STILL DESIRED. IN THAT EVENT, IT IS SUGGESTED THAT YOU INITIALLY ADVISE THE OFFICE OF MR. STEPHEN P. HAYCOCK, ASSISTANT GENERAL COUNSEL, BY LETTER OR TELEPHONE (386-4109, AREA CODE 202), AS TO THE TIME YOU WISH THE CONFERENCE TO BE SCHEDULED.