B-164329, SEPT. 4, 1968

B-164329, SEPT. 4, 1968

TO PARK HAVILAND HOTEL:

REFERENCE IS MADE TO YOUR LETTERS OF MAY 13 AND JUNE 19, 1968, PROTESTING THE REJECTION OF YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. DABF15-68-B-0179 ISSUED AT FORT LEWIS, WASHINGTON, ON MARCH 18, 1968.

THE SUBJECT INVITATION SOLICITED BIDS FOR FURNISHING MEALS AND LODGINGS TO THE MILITARY SERVICES ENLISTEES AND SELECTIVE SERVICE REGISTRANTS AS REQUIRED BY THE ARMED FORCES EXAMINING AND ENTRANCE STATION, PORTLAND, OREGON, DURING THE PERIOD OF MAY 1, 1968, THROUGH APRIL 30, 1969. YOUR BID WAS THE LOWEST OF THE TWO BIDS SUBMITTED IN RESPONSE TO THE INVITATION; HOWEVER, YOUR BID WAS NOT ACCEPTED BECAUSE THE CONTRACTING OFFICER DETERMINED THAT YOUR FACILITIES DID NOT MEET THE MINIMUM STANDARD OF SANITATION.

BIDDERS WERE ADVISED BY SPECIAL PROVISION SP-6A (10) OF THE INVITATION THAT A SANITARY INSPECTION WOULD BE CONDUCTED BY A MILITARY MEDICAL OFFICER AND THAT HIS REPORT WOULD BE CONSIDERED IN SELECTING THE SUCCESSFUL BIDDER. ASPR 1-902 REQUIRES THE AWARD OF CONTRACTS TO RESPONSIBLE CONTRACTORS ONLY. ASPR 1-903.2 (B) PROVIDES THAT PROCUREMENT OF FOOD SHALL BE MADE ONLY FROM THESE SOURCES WHICH ARE APPROVED WITH RESPECT TO SANITATION IN ACCORDANCE WITH STANDARDS AND PROCEDURES PRESCRIBED IN AR 40-657. THE CITED ARMY REGULATION REQUIRES SANITARY APPROVAL OF YOUR FACILITIES BY THE UNITED STATES ARMY VETERINARY CORPS.

THE RECORD SHOWS THAT AN INSPECTION WAS MADE OF YOUR PREMISES ON APRIL 24, 1968, AND AGAIN ON MAY 3, 1968, AT THE REQUEST OF THE CONTRACTING OFFICER. ALSO, THE RECORD SHOWS THAT BY LETTER DATED MAY 15, 1968, YOU WERE ADVISED BY THE CONTRACTING OFFICER AS TO THE AREAS IN WHICH YOUR FACILITIES WERE CONSIDERED TO BE DEFICIENT. THE RECORD FURTHER SHOWS THAT THE SMALL BUSINESS ADMINISTRATION, AT YOUR REQUEST, REVIEWED THE FILE AND AGREED WITH THE ACTION OF THE CONTRACTING OFFICER IN REJECTING YOUR BID.

IN YOUR LETTER OF JUNE 19, 1968, YOU DISAGREE WITH THE FINDINGS OF THE ADMINISTRATIVE AGENCY AND YOU ENCLOSE LETTERS BY OTHERS ENGAGED IN FOOD PREPARATION WHICH YOU CONTEND INDICATE THAT THE ADMINISTRATIVE DETERMINATION WAS ERRONEOUS. WE HAVE RECEIVED A SUPPLEMENTAL REPORT FROM THE ADMINISTRATIVE OFFICE SUSTAINING ITS PREVIOUS ACTION AND DISAGREEING WITH YOUR CONTENTIONS. THIS OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE QUESTION OF RESPONSIBILITY IS PRIMARILY FOR DETERMINATION BY THE PROCUREMENT ACTIVITY AND WE WILL NOT QUESTION SUCH A DETERMINATION IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH, ABUSE OF DISCRETION OR LACK OF A REASONABLE BASIS FOR THE CONCLUSION REACHED. IN THIS CASE WE SEE NO EVIDENCE OF ANY OF THE ABOVE.

WHILE YOU TAKE ISSUE WITH THE ADMINISTRATIVE FINDINGS REGARDING THE CONDITION OF YOUR PREMISES, OUR OFFICE IN CASES INVOLVING DISPUTES OF FACT BETWEEN A BIDDER AND A GOVERNMENT AGENCY NECESSARILY ACCEPTS THE ADMINISTRATIVE VERSION AS CORRECT. 40 COMP. GEN. 178.

AFTER CAREFULLY REVIEWING THE ADMINISTRATIVE REPORT WE CANNOT SAY THAT THE DETERMINATION MADE WAS EITHER ARBITRARY OR CAPRICIOUS. CONSEQUENTLY, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE ADMINISTRATIVE ACTION IN REJECTING YOUR BID.