B-144574, APR. 19, 1961

B-144574, APR. 19, 1961

TO ELECTRONIC AND MISSILE FACILITIES, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM DATED DECEMBER 2, 1960, PROTESTING AGAINST THE AWARD OF A CONTRACT TO FRANCHI CONSTRUCTION COMPANY, THE SECOND LOW BIDDER UNDER INVITATION FOR BIDS NO. ENG-19 016-61-8, ISSUED BY THE CORPS OF ENGINEERS, NEW ENGLAND DIVISION, PROVIDENCE, RHODE ISLAND. YOU INFORMALLY REQUESTED THAT ACTION THEREON BE DEFERRED UNTIL WE WERE FURNISHED WITH A REPORT FROM THE CORPS OF ENGINEERS OFFICE IN KANSAS CITY, MISSOURI, RELATIVE TO YOUR PROTEST TO THAT OFFICE BY LETTER DATED FEBRUARY 24, 1961, AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. ENG-23-028-61-39. BOTH PROTESTS ARE PREDICATED, IN SUBSTANCE, UPON THE GROUND THAT THE REJECTION OF YOUR BIDS, BEING THE LOWEST RECEIVED ON THE TWO PROJECTS, IS UNJUSTIFIED.

THE RECORD BEFORE US DISCLOSES THAT YOUR TWO PROPOSALS IN QUESTION WERE REJECTED BY THE RESPECTIVE CONTRACTING OFFICERS INVOLVED FOR SUBSTANTIALLY THE SAME REASONS. PURSUANT TO ADMINISTRATIVE REGULATIONS A PRE-AWARD SURVEY WAS CONDUCTED BY THE PROVIDENCE AREA OFFICE OF THE CORPS OF ENGINEERS AS TO YOUR CAPABILITIES PRIOR TO AWARD OF A CONTRACT UNDER INVITATION NO. ENG-19-016-61-8. PERFORMANCE RATINGS WERE OBTAINED FROM UNITED STATES ARMY ENGINEER OFFICES AT PITTSBURGH,PENNSYLVANIA, PORTLAND, MAINE, JACKSONVILLE, FLORIDA, AND SAVANNAH, GEORGIA, AS WELL AS FROM OTHER GOVERNMENT AGENCIES FOR WHOM YOU HAVE PERFORMED, OR NOW ARE PERFORMING VARIOUS CONSTRUCTION PROJECTS. A COMMON COMPLAINT RAISED IN CONNECTION WITH YOUR UNDERTAKINGS IS THAT A DISPROPORTIONATE PERCENTAGE OF THE WORK HAS BEEN OR IS BEING SUBCONTRACTED, AND THAT FACT COUPLED WITH INADEQUATE AND POOR SUPERVISION ON YOUR PART HAS RESULTED IN A SERIOUS LACK OF COORDINATION BETWEEN THE SUBCONTRACTORS. UNDER THOSE CIRCUMSTANCES THE QUALITY AND PROGRESS RATE OF THE CONSTRUCTION HAS SUFFERED, AND THOSE DEFICIENCIES HAVE BEEN OVERCOME ONLY BY CONTINUOUS INSPECTIONS AND SUPERVISION BY GOVERNMENT PERSONNEL. AS A CONSEQUENCE EXCESSIVE SUPERVISORY COSTS WERE INCURRED BY THE AGENCIES.

ADDITIONAL FACTORS CONCERNING YOUR PAST PERFORMANCE CONSIDERED UNSATISFACTORY BY SEVERAL OF THE CONTRACTING OFFICERS WERE YOUR SELECTION OF SUBCONTRACTORS ON THE BASIS OF PRICE RATHER THAN ABILITY AND QUALITY, AND THE DIFFICULTY EXPERIENCED WITH YOUR OFFICIALS IN NEGOTIATING MODIFICATIONS TO THE CONTRACTS. IN SUMMARY, THE NUMEROUS CAPABILITY REPORTS SUBMITTED BY THE RESPECTIVE CONTRACTING OFFICERS CONCLUDE, IN ONE OR MORE INSTANCES, WITH UNSATISFACTORY FINDINGS AS TO YOUR INGENUITY, ORGANIZATIONAL ABILITY AND EFFICIENCY, COOPERATIVE ATTITUDE; EFFECTIVE USE OF EQUIPMENT, MATERIALS AND EMPLOYEES; AND, EFFECTIVENESS OF SUPERVISION. AS A RESULT THE CONTRACTING OFFICER IN THE PROVIDENCE AREA FOUND YOUR COMPANY HAS DEMONSTRATED A LACK OF RESPONSIBILITY IN THE PERFORMANCE OF MANY FEDERAL PROJECTS AND THEREFORE RECOMMENDED THE AWARDING OF A CONTRACT TO THE SECOND LOW BIDDER, WHICH WAS APPROVED BY BRIGADIER GENERAL HALL, ACTING DIRECTOR OF MILITARY CONSTRUCTION, CORPS OF ENGINEERS.

WITH RESPECT TO THE CONTEMPLATED AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. ENG-23-028-61-39, BY THE KANSAS CITY OFFICE OF THE CORPS OF ENGINEERS, FOR CERTAIN CONSTRUCTION WORK TO BE PERFORMED AT FORT LEONARD WOOD, A SIMILAR PRE-AWARD SURVEY WAS MADE BY ENGINEERING PERSONNEL. ALSO, A MEETING WAS HELD BY INTERESTED GOVERNMENT OFFICERS AND EMPLOYEES WITH THREE REPRESENTATIVES OF YOUR FIRM, TO AFFORD YOU THE OPPORTUNITY OF REFUTING THE ADVERSE REPORTS AS TO YOUR QUALIFICATIONS AND CAPABILITIES THAT WERE SUBMITTED BY VARIOUS OTHER GOVERNMENT OFFICERS. A TRANSCRIPT OF THE PROCEEDINGS OF THAT CONFERENCE FAILS TO DISCLOSE ANY SATISFACTORY EXPLANATIONS SUFFICIENT TO OVERCOME THE CRITICISMS EXPRESSED BY THE AGENCY OFFICES AS TO YOUR LACK OF INDUSTRY AND COOPERATION. THEREAFTER, AND UPON REVIEW OF THE CAPABILITY REPORTS PREPARED BY OTHER GOVERNMENT INSTALLATIONS, SIMILAR TO THOSE SUBMITTED TO THE ENGINEER OFFICE AT PROVIDENCE, THE CONTRACTING OFFICER RECOMMENDED THE REJECTION OF YOUR BID, WHICH ACTION WAS CONCURRED IN BY MAJOR GENERAL BARNEY, DEPUTY CHIEF OF ENGINEERS FOR CONSTRUCTION.

QUESTIONS PERTAINING TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR ARE FOR DETERMINATION BY THE PROCURING AGENCY INVOLVED AND, IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR THE LACK OF ANY REASONABLE BASIS FOR A PARTICULAR FINDING, THIS OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO SUCH DETERMINATION. AS TO THIS CASE WE FEEL THAT A BONA FIDE DETERMINATION ADEQUATELY SUPPORTED BY THE RECORD HAS BEEN MADE, WITHOUT ANY EVIDENCE OF BAD FAITH OR PERSONAL PREJUDICE. THEREFORE, THE EXERCISE OF SUCH DISCRETION BY THE PROCUREMENT OFFICIALS OF THE GOVERNMENT UNDER THESE CIRCUMSTANCES IS NOT SUBJECT TO REVERSAL BY US.

YOU REALIZE, WE ARE SURE, THAT THE UNFAVORABLE DETERMINATIONS IN THE TWO CASES HERE INVOLVED DO NOT THEMSELVES CONSTITUTE ANY GROUND FOR SIMILAR DETERMINATIONS IN THE FUTURE. EACH DETERMINATION MUST BE MADE ON THE BASIS OF ACTUAL PRIOR EXPERIENCE AS OF THE TIME SUCH DETERMINATION IS MADE, AND WE NOTE THAT CERTAIN OF THE UNFAVORABLE REPORTS CONSIDERED IN THE TWO PRESENT DETERMINATIONS INVOLVE WORK STILL IN PROGRESS, AS TO WHICH REPORTS AFTER COMPLETION MAY BE MORE FAVORABLE. HOWEVER, ON THE BASIS OF THE FACTS OF RECORD ON WHICH THE ACTION HERETOFORE TAKEN BY THE CORPS OF ENGINEERS WAS BASED, WE FEEL COMPELLED TO DENY YOUR PROTESTS.