B-127280, MAY 11, 1956

B-127280, MAY 11, 1956

TO MANHATTAN LIGHTING EQUIPMENT COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR RECENT CORRESPONDENCE WITH ENCLOSURES, RELATIVE TO YOUR PROTEST AGAINST THE ACTION OF TOPEKA AIR FORCE BASE, TOPEKA, KANSAS, IN REFUSING TO AWARD YOU A CONTRACT FOR ITEM 33 UNDER IFB NO. 14-604-56-536.

PURSUANT TO REQUEST OF THIS OFFICE, THERE HAS NOW BEEN RECEIVED A REPORT FROM THE DEPARTMENT OF THE AIR FORCE WHICH SETS FORTH THE SPECIFIC REASONS FOR THE DEPARTMENT'S ACTION IN DISREGARDING YOUR BIDS SUBMITTED IN RESPONSE TO INVITATIONS ISSUED BY THE DEPARTMENT. THE REPORT SHOWS THAT IN CERTAIN INSTANCES THE DEPARTMENT HAS FOUND IT NECESSARY TO REJECT YOUR BIDS BECAUSE OF UNFAVORABLE FACILITY CAPABILITY REPORTS. IT IS REPORTED FURTHER THAT YOUR REQUEST FOR A CERTIFICATE OF COMPETENCY FROM THE SMALL BUSINESS ADMINISTRATION WAS DENIED FOR THE REASON THAT YOUR PRODUCTION CAPACITY INDICATED A LACK OF SATISFACTORY EVIDENCE TO PERFORM IN ACCORDANCE WITH THE PROBABLE CONTRACTUAL REQUIREMENTS.

THE FILE INDICATES THAT WITH RESPECT TO THE SUBJECT INVITATION YOU WERE NOTIFIED BY LETTER OF APRIL 2, 1956, THAT IN VIEW OF THE FACT THAT THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOWEST BID WAS COMPARATIVELY SMALL, THE CONTRACTING OFFICER, IN HIS DISCRETION, DECIDED IT WAS IN THE BEST INTEREST OF THE GOVERNMENT TO REFUSE AN AWARD OF THIS ITEM TO YOU AND TO AWARD IT TO THE NEXT LOWEST BIDDER. THE DEPARTMENT OF THE AIR FORCE REVIEWED THIS ACTION OF THE CONTRACTING OFFICER, AND FINDS THAT THE ACTION WAS PROPERLY TAKEN IN STRICT ACCORDANCE WITH THE PROCEDURES AND REGULATIONS OF THE DEPARTMENT. ALSO, IT IS REPORTED THAT DURING 1955 YOU HAVE BEEN DELINQUENT FOR PERIODS OF 30 OR MORE DAYS ON 51 CONTRACTS AND, WITH RESPECT TO 65 MORE CONTRACTS, YOU HAVE BEEN DELINQUENT FOR PERIODS UP TO 30 DAYS.

IT LONG HAS BEEN HELD BY THIS OFFICE AND THE COURTS THAT, IN CONNECTION WITH THE AWARD OF A CONTRACT AFTER ADVERTISING, THE ACCEPTANCE OF A LOW BID SUBMITTED BY ONE NOT QUALIFIED TO SATISFACTORILY PERFORM THE NECESSARY SERVICES IS NOT REQUIRED. 20 COMP. GEN. 862; O-BRIEN V. CARNET, 6 F.SUPP. 761, 762. NO BIDDER ACQUIRES AN ABSOLUTE RIGHT TO AN AWARD OF PUBLIC BUSINESS BUT, RATHER, THE PUBLIC INTEREST IS FIRST FOR CONSIDERATION AND, THEREFORE, IT IS ONLY REQUIRED THAT THE CONTRACT BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER. HIBBS, ET AL. V. ARENSBERG, 119 A.727; 33 OP.ATTY.GEN. 453. IN DETERMINING WHETHER A BIDDER IS RESPONSIBLE THERE MUST BE TAKEN INTO ACCOUNT NOT MERELY THE PECUNIARY ABILITY OF THE BIDDER AND HIS BID PRICE, BUT THE BIDDER'S JUDGMENT, SKILL AND INTEGRITY AS WELL AS HIS FITNESS AND ABILITY GENERALLY TO FULFILL THE CONTRACT REQUIREMENTS. SEE 10 COMP. GEN. 314, 316; 16 ID. 708; 20 ID. 862; 26 ID. 676; HIBBS, ET AL. V. ARENSBERG, AND O-BRIEN V. CARNEY, SUPRA; PICONE V. CITY OF NEW YORK, 29 N.Y. S.2D 539; KEELING, ET AL. V. EDWARDS, ET AL., 116 MINN. 484, 134 N.W. 221; KOICH V. CVAR, 110 P.2D 964.

I HAVE TO ADVISE THAT ON THE BASIS OF THE FACTS REPORTED TO THIS OFFICE, NO BASIS APPEARS FOR OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.