B-154787, SEP. 4, 1964

B-154787, SEP. 4, 1964

TO NATIONAL BIRD CONTROL LABORATORIES:

WE REFER TO YOUR LETTER DATED JULY 21, 1964, PROTESTING THE AWARD OF CONTRACT NO. NAS 6-824, JUNE 30, 1964, TO HOME EXTERMINATING COMPANY, BOX 582--- 430 SOUTH SALISBURY BOULEVARD, SALISBURY, MARYLAND.

THIS AWARD WAS MADE PURSUANT TO INVITATION FOR BIDS FOR NO. P-979, ISSUED MAY 21, 1964, BY THE PROCUREMENT AND SUPPLY OFFICER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, WALLOPS ISLAND, VIRGINIA, FOR THE SERVICES AND MATERIALS NECESSARY FOR BIRD PROOFING THE HANGER AREA OF BUILDING D-1, IN ACCORDANCE WITH NASA SPECIFICATION P-979, DATED MAY 21, 1964. PARAGRAPH 1 -04 ENTITLED ,CONTRACTOR QUALIFICATIONS" OF SPECIFICATION NO. P-979 PROVIDED IN PART AS FOLLOWS:

"THE CONTRACTOR SHALL BE FULLY QUALIFIED IN ALL PHASES OF THE WORK SPECIFIED HEREIN AND SHALL HAVE HAD NOT LESS THAN FIVE YEARS' EXPERIENCE IN SUCH WORK.'

PARAGRAPH 2-03 OF THE SPECIFICATIONS ENTITLED "MATERIALS" PROVIDED IN PART AS FOLLOWS:

"THE BIRD REPELLENT MATERIAL APPLIED SHALL BE "ROOST-NO-MORE" AS MANUFACTURED BY NATIONAL BIRD CONTROL LABORATORIES OF SKOKIE, ILLINOIS, OR APPROVED EQUAL.'

BIDS WERE OPENED ON JUNE 17, 1964, AND THE FOLLOWING BIDS WERE RECEIVED:

1. HOME EXTERMINATING COMPANY $ 7,999

2. NATIONAL BIRD CONTROL LABORATORIES $ 9,615

3. BUILDING MAINTENANCE CORPORATION $23,983

ON JUNE 23, 1964, PRIOR TO AWARD, THE CONTRACTING OFFICER REQUESTED THAT HOME EXTERMINATING COMPANY SUBMIT PROOF REGARDING THEIR PAST EXPERIENCE IN BIRD PROOFING OPERATIONS. ON JUNE 25, 1964, HOME EXTERMINATING COMPANY FURNISHED THE CONTRACTING OFFICER WITH THE REQUESTED INFORMATION REGARDING ITS PRIOR EXPERIENCE. A MEMORANDUM BY THE CONTRACT SPECIALIST DATED JUNE 30, 1964, INDICATES THAT THERE WAS A FOLLOW-UP OF THE INFORMATION REGARDING HOME EXTERMINATING COMPANY'S PRIOR EXPERIENCE AND THE FOLLOWING ADDITIONAL INFORMATION WAS OBTAINED:

"AMERICAN BREWERY, BALTIMORE, MARYLAND.

TALKED WITH MR. JOHNSTON, ASSISTANT VICE PRESIDENT.

WORKED WAS PERFORMED IN 1957. THE QUALITY OF THE WORK AND MATERIALS USED WERE CONSIDERED VERY SATISFACTORY. THE COMPANY DISPLAYED COMPLETE KNOWLEDGE OF THE WORK. THE WORK WAS CONSIDERED AS VERY DIFFICULT DUE TO THE TYPE OF STRUCTURE INVOLVED (OLD BUILDING WITH TOWERS, CANOPIES, ETC).

"UNION MEMORIAL HOSPITAL, BALTIMORE, MARYLAND.

TALKED WITH MR. MURPHY, DIRECTOR.

WORKED PERFORMED IN 1960; ALL WORK AND MATERIALS CONSIDERED VERY SATISFACTORY.'

THE RECORD SHOWS THAT PRIOR TO AWARD, THE "NO ROOST" BIRD REPELLENT MATERIAL WHICH HOME EXTERMINATING COMPANY PROPOSED TO FURNISH WAS DETERMINED TO BE EQUAL TO THE "ROOST-NO-MORE" BRAND SPECIFIED IN PARAGRAPH 2-03, QUOTED ABOVE. ON JUNE 30, 1964, THE CONTRACTING OFFICER DETERMINED THAT THE HOME EXTERMINATING COMPANY HAD FURNISHED SUFFICIENT PROOF THAT IT COULD SATISFACTORILY PERFORM THE SERVICES REQUIRED BY THE INVITATION AND AWARD WAS MADE TO THIS BIDDER. WE HAVE BEEN ADVISED THAT THE SERVICES UNDER THE CONTRACT AWARDED TO HOME EXTERMINATING COMPANY WERE COMPLETED ON AUGUST 7, 1964, AND THAT ALL WORK WAS SATISFACTORILY PERFORMED IN ACCORDANCE WITH THE REQUIREMENTS OF THE SPECIFICATIONS.

ON JUNE 23, 1964, YOU DIRECTED A LETTER TO THE CONTRACTING OFFICER PROTESTING THE AWARD OF A CONTRACT TO HOME EXTERMINATING COMPANY, ALLEGING THAT THIS CONTRACTOR DID NOT HAVE THE FIVE YEARS OF BIRD PROOFING EXPERIENCE REQUIRED BY THE INVITATION. TO SUPPORT THIS CONTENTION YOU CITED THE 1962 DIRECTORY PUBLISHED BY THE NATIONAL PEST CONTROL OPERATORS, WHICH DID NOT LIST THE HOME EXTERMINATING COMPANY AS BEING ENGAGED IN BIRD CONTROL SERVICES. ON JUNE 30, 1964, THE CONTRACTING OFFICER ADVISED YOU THAT THE HOME EXTERMINATING COMPANY HAD FURNISHED SUFFICIENT PROOF TO MEET THE EXPERIENCE REQUIREMENT SET FORTH IN PARAGRAPH 1-04 OF THE SPECIFICATIONS, QUOTED ABOVE. ON JULY 21, 1964, YOU DIRECTED YOUR LETTER WITH ENCLOSURES TO OUR OFFICE REQUESTING THAT OUR OFFICE REVIEW THE QUALIFICATIONS OF THE HOME EXTERMINATING COMPANY.

THE BASIS FOR YOUR OBJECTION IS THAT THE HOME EXTERMINATING COMPANY WAS NOT LISTED IN THE 1962 DIRECTORY OF THE NATIONAL PEST CONTROL ASSOCIATION AS BEING ENGAGED IN BIRD PROOFING ACTIVITIES AND THAT HOME EXTERMINATING COMPANY THEREFORE DID NOT MEET THE FIVE YEARS' EXPERIENCE REQUIREMENT. YOU FEEL THAT HOME EXTERMINATING COMPANY'S EXPERIENCE IN BIRD PROOFING WAS NOT SUFFICIENT TO JUSTIFY AN AWARD TO THAT BIDDER. THE EXPERIENCE REQUIREMENT IN THIS INVITATION RELATED TO THE DETERMINATION OF THE RESPONSIBILITY OF BIDDERS. SEE 39 COMP. GEN. 173. IN THESE CIRCUMSTANCES, IT IS WELL ESTABLISHED THAT DETERMINATIONS REGARDING THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS ARE PRIMARILY THE FUNCTION OF THE PROCURING ACTIVITY AND THAT SUCH DETERMINATIONS WILL NOT BE QUESTIONED BY OUR OFFICE UNLESS SHOWN TO BE ARBITRARY OR CAPRICIOUS. SEE 37 COMP. GEN. 430. THE PROCURING ACTIVITY, BASED ON INFORMATION RECEIVED FROM HOME EXTERMINATING COMPANY AND FROM PRIOR CUSTOMERS OF HOME EXTERMINATING COMPANY, WAS SATISFIED THAT THIS BIDDER HAD THE QUALIFICATIONS TO PERFORM THE SERVICES CONTEMPLATED BY THE INVITATION. IN VIEW OF THE RECORD WE CANNOT SAY THAT THIS DETERMINATION WAS ARBITRARY OR CAPRICIOUS. IN THIS CONNECTION THE 1962 DIRECTORY OF THE NATIONAL PEST CONTROL ASSOCIATION, CITED BY YOU IN SUPPORT OF YOUR POSITION, WOULD NOT CONCLUSIVELY ESTABLISH THAT THE HOME EXTERMINATING COMPANY WAS NOT A RESPONSIBLE BIDDER UNDER THIS INVITATION.