B-144615, JAN. 19, 1961

B-144615, JAN. 19, 1961

TO REYES AND RAMOS:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 15, 1960, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO AN INVITATION FOR BIDS FOR MAKING ELECTRICAL IMPROVEMENTS AT THE U.S. NAVAL STATION, ROOSEVELT ROADS, PUERTO RICO, IN ACCORDANCE WITH NAVDOCKS SPECIFICATION NO. 17993/60.

IN YOUR LETTER YOU STATE THAT YOUR BID, ALTHOUGH IT WAS THE LOWEST ONE RECEIVED BY THE GOVERNMENT, WAS REJECTED BECAUSE THERE WAS A FINDING THAT YOU WERE NOT A RESPONSIBLE BIDDER. AMONG OTHER THINGS YOU STATE THAT THE "PROCUREMENT AGENCY EXCEEDED ITS PREROGATIVES UNDER THE INVITATION" IN BASING ITS FINDING ON THE PAST PERFORMANCE OF YOUR FIRM ON CONTRACTS NOS. NBY-17946 AND NBY-17986 AT ROOSEVELT ROADS BECAUSE THE WORK ADVERTISED IN THE INSTANT CASE WAS NOT SIMILAR TO THAT UNDER THE OTHER TWO CONTRACTS. ALSO, YOU STATE FURTHER THAT---

"B. OUR FIRM HAS NEVER RECEIVED AN UNSATISFACTORY RATING AS TO PERFORMANCE UNDER CONTRACTS NBY-17946 AND 17986. ONE OF THESE CONTRACTS HAS BEEN COMPLETED AS SCHEDULED AND IN A SATISFACTORY MANNER. THE OTHER HAS NOT BEEN COMPLETED AND PERFORMANCE IS DELAYED AS A RESULT, IN PART, OF A DISPUTE WHICH AROSE BETWEEN THE CONTRACTING OFFICER AND THIS FIRM AS TO A CHANGE CONDITION ENCOUNTERED DURING ITS PROSECUTION. THE DISPUTE WAS FINALLY ADJUDICATED FAVORABLY TO OUR FIRM. OTHER REASONS FOR DELAY WERE NON-COMPLIANCE OF TIMELY DELIVERIES OF EQUIPMENT BY OUR SUPPLIERS AND SUBCONTRACTORS, A SITUATION WHICH WAS ENTIRELY BEYOND THE CONTROL OF THIS FIRM AS PRIME CONTRACTOR.

"C. THIS FIRM HAS NEVER BEEN NOTIFIED OF ANY AWARD MADE BY THE PROCUREMENT AGENCY UNDER THE SUBJECT INVITATION.

"D. THIS FIRM WAS LOW BIDDER, AND THE REJECTION OF ITS BID IS UNFOUNDED AND CONTRARY TO THE PRINCIPLES WHICH GOVERN GOVERNMENT PROCUREMENT UNDER THE COMPETITIVE SYSTEM.'

CONTRACTS TO BE MADE AS A RESULT OF FORMAL ADVERTISING ARE REQUIRED TO BE AWARDED "TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.' 10 U.S.C. 2305 (C). A RESPONSIBLE PROSPECTIVE CONTRACTOR UNDER ASPR 1-903.1 IS ONE WHO MUST, AMONG OTHER FACTORS:

"/III) BE ABLE TO COMPLY WITH THE REQUIRED OR PROPOSED DELIVERY OR PERFORMANCE SCHEDULE, TAKING INTO CONSIDERATION ALL EXISTING BUSINESS COMMITMENTS, * * *;

"/IV) HAVE A SATISFACTORY RECORD OF PERFORMANCE * * *;

"/V) HAVE A SATISFACTORY RECORD OF INTEGRITY; "

AFTER THE BIDS WERE OPENED IN THIS CASE, THE CONTRACTING OFFICE CONDUCTED AN INVESTIGATION TO DETERMINE WHETHER YOUR FIRM WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR IN ACCORDANCE WITH THE CRITERIA SET OUT IN ASPR 1- 903.1. AS A RESULT OF THIS INVESTIGATION IT WAS ASCERTAINED THAT YOUR FIRM HAD TWO OTHER CONTRACTS WITH THE DEPARTMENT OF THE NAVY, NAMELY NOS. NBY-17986 AND NBY-17946, BOTH OF WHICH WERE BEING PERFORMED AT ROOSEVELT ROADS, PUERTO RICO. IT IS REPORTED THAT PERFORMANCE ON CONTRACT NO. NBY- 17986 WAS NOT BEGUN UNTIL 65 PERCENT OF THE CONTRACT TIME HAD ELAPSED AND ONLY 42 PERCENT OF THE WORK HAD BEEN FINISHED BY THE CONTRACT COMPLETION DATE. AS TO CONTRACT NO. NBY 17946, ONLY 77 PERCENT OF THE CONTRACT WORK HAD BEEN COMPLETED 143 DAYS AFTER THE CONTRACT COMPLETION DATE. IT IS REPORTED ALSO THAT THE ADMINISTRATION BY THE OFFICER IN CHARGE OF CONSTRUCTION (OICC) HAD BEEN MADE UNNECESSARILY DIFFICULT AND EXPENSIVE BY THE ACTIONS OF YOUR FIRM IN CERTAIN CASES, AS FOLLOWS:

"/A) THE CONTRACTOR REPEATEDLY SUBMITTED INFLATED OR ARITHMETICALLY INCORRECT REQUESTS FOR PARTIAL PAYMENT.

"/B) THE CONTRACTOR'S JOB SUPERINTENDENCE HAS BEEN POOR; THE RESIDENT OFFICER IN CHARGE OF CONSTRUCTION (ROICC) FOUND IT NECESSARY TO ORDER REMOVAL OF ONE SUPERINTENDENT.

"/C) THE CONTRACTOR HAD DELAYED SUBMITTING ACCIDENT REPORTS REQUIRED BY THE SPECIFICATIONS, THUS NECESSITATING TIME-CONSUMING FOLLOWUPS BY THE ROICC.

"/D) THE CONTRACTOR HAD DELAYED MAKING RESUBMITTALS AFTER REJECTION OF UNSATISFACTORY ITEMS.

"/E) THE CONTRACTOR HAD REQUESTED OVERTIME INSPECTION AND THEN, WITHOUT NOTIFICATION, FAILED TO WORK.

"/F) THE CONTRACTOR HAD SUBMITTED A SCHEDULE OF POWER OUTAGES IN EXCESS OF REASONABLE NEED, WHICH SCHEDULE REQUIRED CONSIDERABLE GOVERNMENT WORK TO CORRECT.

"/G) THE CONTRACTOR DISREGARDED GOVERNMENT INSTRUCTIONS IN REGARD TO INSTALLATION OF UNAPPROVED OR DISAPPROVED ITEMS, THEREBY CAUSING THE GOVERNMENT TO ORDER THEIR REPLACEMENT WHICH NECESSITATED ADDITIONAL POWER OUTAGES.

"/H) THE CONTRACTOR USED AN UNSAFE LINE TRUCK AFTER BEING ORDERED NOT TO DO SO.'

IN REGARD TO YOUR RECORD OF INTEGRITY THE OICC FOUND THAT YOU HAD ATTEMPTED TO SUBSTITUTE UNACCEPTABLE MATERIALS ON THE FOLLOWING OCCASIONS:

"/A) ON CONTRACT NBY-17946, THE CONTRACTOR CUT SEVERAL OF THE SPECIFIED EIGHT FOOT GROUND RODS IN HALF AND INSTALLED THE FOUR FOOT SECTIONS.

"/B) ON CONTRACT NBY-17946, THE CONTRACTOR TOOK OLD CROSSARMS REMOVED FROM THE EXISTING 38 KV LINE, AND WITHOUT AUTHORIZATION, PAINTED THEM WITH CREOSOTE AND INSTALLED THEM ON THE NEW LINE, USING OLD HARDWARE. THE SPECIFICATIONS CLEARLY STATE THAT NO REMOVED MATERIAL MAY BE REUSED EXCEPT AS APPROVED.

"/C) ON CONTRACT NBY-17946, THE CONTRACTOR INSTALLED FLAT CROSSARM BRACES ON PORTIONS OF THE 38 KV LINE WHERE THE STRONGER ANGLED BRACES WERE SPECIFIED.

"/D) ON CONTRACT NBY-17986, THE CONTRACTOR DELIVERED TO THE SITE ENGLISH LIGHTING ARRESTERS AND JAPANESE SUSPENSION TYPE INSULATORS. WHEN TOLD TO REMOVE SAME, CONTRACTOR REPLIED THAT A MISTAKE HAD BEEN MADE BY HIS SHIPPING DEPARTMENT. ONE MONTH LATER HE INSTALLED OTHER LIGHTING ARRESTERS WHICH HAD BEEN DISAPPROVED.'

ON THE BASIS OF THE FOREGOING FINDINGS THE OICC RECOMMENDED TO THE CONTRACTING OFFICER THAT YOU BE NOT REGARDED AS RESPONSIBLE FOR THE PURPOSE OF AWARD UNDER THE INSTANT INVITATION SINCE YOU DID NOT MEET THE CRITERIA SET OUT UNDER ASPR 1-903.1. THE CONTRACTING OFFICER CONCURRED IN THIS RECOMMENDATION AND NOTIFIED YOU ON NOVEMBER 2, 1960, AS STATED IN IN YOUR LETTER, THAT YOUR BID HAD BEEN REJECTED AND THAT THIS REJECTION WAS BASED ON A FINDING THAT YOUR FIRM WAS NOT A ,RESPONSIBLE BIDDER" WHICH IN TURN WAS BASED ON YOUR PAST PERFORMANCE UNDER CONTRACTS NOS. NBY-17946 AND NBY-17986. THEREAFTER, ON NOVEMBER 4, 1960, AWARD OF THE CONTRACT WAS MADE TO LOUIS H. DEXTER, INC.

AS TO YOUR CONTENTION THAT THE WORK TO BE PERFORMED UNDER THE CONTRACT AWARDED ON NOVEMBER "DIFFERS SUBSTANTIALLY FROM THAT BEING PERFORMED AND REQUIRED BY CONTRACTS NBY-17946 AND 17986," THE ADMINISTRATIVE OFFICE REPORTS THAT THE WORK UNDER THE SEVERAL CONTRACTS IS SIMILAR ALTHOUGH THE WORK UNDER THE CONTRACT RECENTLY AWARDED IS SOMEWHAT MORE COMPLEX AND WILL REQUIRE A HIGHER DEGREE OF COORDINATION AND ADMINISTRATION THAN THAT UNDER THE EXISTING CONTRACTS. IN THIS REGARD IT IS STATED THAT ALL WORK UNDER THE SUBJECT CONTRACT WILL BE DONE IN OCCUPIED AREAS AND BUILDINGS AND THUS WILL REQUIRE CAREFUL PLANNING TO AVOID INTERFERENCE WITH GOVERNMENT OPERATIONS AND DAMAGE TO GOVERNMENT PROPERTY.

AS TO YOUR CONTENTION THAT YOU HAVE NEVER RECEIVED AN UNSATISFACTORY RATING AS TO PERFORMANCE UNDER CONTRACTS NOS. NBY-17946 AND NBY-17986, IT IS REPORTED THAT OFFICIAL PERFORMANCE RATINGS OF CONTRACTORS ARE MADE ONLY UPON COMPLETION OF THE CONTRACT IN THE FORM OF A "RECORD REPORT," AND NEITHER OF THESE CONTRACTS IS COMPLETE, ALTHOUGH CONTRACT NO. NBY-17986 IS NOW "USEABLY COMPLETE.' THE OICC REPORTS THAT YOUR FIRM WILL BE RATED AS UNSATISFACTORY ON MANY ASPECTS OF BOTH CONTRACTS. THE DISPUTE UNDER CONTRACT NO. NBY-17946 TO WHICH YOU REFER IN YOUR LETTER AS BEING ,ADJUDICATED FAVORABLY TO OUR FIRM" INVOLVES ONLY AN ISOLATED PORTION OF THE WORK AND THE OTHER WORK HAS NOT BEEN DELAYED IN ANY WAY BY THIS DISPUTE.

UNDER THE PROVISIONS OF ASPR 1-904, NO CONTRACT SHALL BE AWARDED TO ANY PERSON OR FIRM UNLESS THE CONTRACTING OFFICER FIRST MAKES, SIGNS, AND PLACES IN THE CONTRACT FILE, AN AFFIRMATIVE DETERMINATION "THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE WITHIN THE MEANING OF 1-902 AND 1- 903.' ALSO, WHERE A BID OR OFFER, ON WHICH AN AWARD WOULD OTHERWISE BE MADE, IS REJECTED BECAUSE THE PROSPECTIVE CONTRACTOR IS FOUND TO BE NONRESPONSIBLE, SIMILAR ACTION IS TO BE TAKEN. THE DETERMINATION SO REQUIRED HAS BEEN MADE IN YOUR CASE AND YOU WERE NOTIFIED ACCORDINGLY ON NOVEMBER 2, 1960, ALTHOUGH YOU WERE NOT FURNISHED AT THAT TIME WITH THE REASONS FOR THE DETERMINATION.

THE QUESTION OF YOUR RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR IN THIS CASE AND COVERING THE MATTERS OUTLINED IN THE QUOTED PROVISIONS OF ASPR 1- 903.1 IS ONE FOR RESOLUTION BY THE PROCURING ACTIVITY. THERE IS FOR APPLICATION IN THIS CASE THE GENERAL RULE THAT A DETERMINATION MADE BY THE PROCURING ACTIVITY IN SUCH A CASE IS CONCLUSIVE AND WILL NOT BE QUESTIONED BY THE COURTS OR OUR OFFICE, IN THE ABSENCE OF A SHOWING OF FRAUD OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. SEE FRIEND V. LEE, 221 F.2D 96; 20 COMP. GEN. 862; AND 37 ID. 430, 435.

THE DETERMINATION IN THIS CASE THAT YOU WERE NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR IS SUPPORTED BY COMPETENT EVIDENCE TENDING TO SHOW THAT YOU DID NOT MEET THE PRESCRIBED STANDARDS OF RESPONSIBILITY. ACCORDINGLY, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE REJECTION OF YOUR BID UNDER THE INSTANT INVITATION.