B-164508, AUG. 6, 1968

B-164508, AUG. 6, 1968

TO FEDERAL CONTRACTORS, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 5 AND 19, 1968, PROTESTING THE AWARD OF A CONTRACT TO A HIGHER BIDDER UNDER INVITATION FOR BIDS NO. 4- 907, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, REGION 10. YOU CONTEND THAT THE REJECTION OF YOUR BID WAS IN ERROR SINCE YOU ARE A RESPONSIBLE BIDDER WHICH HAD SATISFACTORILY PERFORMED PAST CONTRACTS FOR REGION 10.

THE INVITATION, ISSUED MARCH 11, 1968, SOLICITED BIDS FOR EXTERIOR PAINTING AND RELATED MINOR REPAIRS OF THE FEDERAL BUILDING, SEATTLE, WASHINGTON. BIDS WERE OPENED ON MARCH 26, 1968, AND IT APPEARS THAT THE BIDS RANGED FROM YOUR LOW BID OF $13,800.13 TO A HIGH BID OF $26,490. THE SECOND LOW BID SUBMITTED BY SPITZER, INC., WAS IN THE AMOUNT OF $14,719. PURSUANT TO SECTION 1-1.310-6 (A) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), WHICH PRECLUDES THE AWARD OF A CONTRACT TO ANY FIRM NOT AFFIRMATIVELY DETERMINED BY THE CONTRACTING OFFICER TO BE A RESPONSIBLE PROSPECTIVE CONTRACTOR, THE PROCURING ACTIVITY INSTIGATED INVESTIGATIONS THROUGH SEVERAL SOURCES TO DETERMINE WHETHER FEDERAL WAS A RESPONSIBLE BIDDER FOR THE PURPOSES OF THE PROCUREMENT. OF RELEVANCE HERE IS THE REQUIREMENT IN FPR SEC. 1-1.310-5 (A) (4) THAT A PROSPECTIVE CONTRACTOR MUST HAVE A SATISFACTORY RECORD OF INTEGRITY, JUDGMENT AND CONTRACT PERFORMANCE.

THE RECORD BEFORE US CONTAINS THREE CONTRACTOR PERFORMANCE RATING SHEETS RELATING TO CONTRACTS NOS. GS-10B-E-00732, -00783 AND -00832. THESE CONTRACTS WERE AWARDED TO YOU BY REGION 10 AND WERE COMPLETED DURING THE CALENDAR YEAR 1967, AND YOUR PERFORMANCE UNDER THESE CONTRACTS WAS FOUND TO BE DEFICIENT OR MARGINAL BY RESPONSIBLE PROCUREMENT PERSONNEL. RESPECTING CONTRACT NO. -00732, IT IS REPORTED THAT:

"SUPERVISION:

"THIS JOB RECEIVED LITTLE OR NO COMPETENT SUPERVISION. SUPERVISORS ASSIGNED WERE WORKING SUPERVISORS WHO HAD PRACTICALLY NO KNOWLEDGE OF THE DRWG. AND SPEC. REQUIREMENTS. EACH OF THE TWO ASSIGNED SUPERVISORS' VOLUNTARILY STATED THEY WERE DOING ONLY WHAT THEY WERE TOLD TO DO BY MR. WEBBER.

"QUALITY OF WORK:

"WITH THE EXCEPTION OF THE NEW ROOF ALL OTHER WORK ACCOMPLISHED WAS FAR BELOW THE NORMAL STANDARDS OF THE TRADE. THE QUALITY OF WORK PERFORMED MEETS THE ABSOLUTE MINIMUM ACCEPTABLE STANDARDS.

"COOPERATIVE ATTITUDE:

"THE CONTRACTOR MADE IT OBVIOUS HE WAS ONLY GOING TO DO -JUST ENOUGH TO GET BY.-"

IT IS REPORTED WITH REFERENCE TO CONTRACT NO. -00783 AS FOLLOWS:

"/1) COMPLETION - CONTRACTOR REQUIRED CONTINUAL PRODDING AND USED EXCUSE AFTER EXCUSE FOR NOT PROCEEDING WITH THE PAINT REMOVAL FROM EXTERIOR. NOTICE TO PROCEED WAS ON FEB. 15, 1967 AND CONTRACTOR ACTUALLY STARTED WORK ON PAINT REMOVAL IN JULY AFTER LETTING MUCH FAVORABLE WEATHER GO BY - - THEREBY EXTENDING ON INTO BAD WEATHER.

"/2) SUPERVISION - CONTRACTOR HAD WORKING FOREMAN WHO WAS NOT ALLOWED TO TAKE ANY ACTION ON HIS OWN AND WEBBER CONTINUALLY PULLED HIM FROM THE JOB TO WORK ON OTHER PROJECTS WITHOUT WARNING FOR WEEKS AT A TIME.

"/3) ORGANIZATION - VERY UNSATISFACTORY, AS STATED ABOVE, THE FOREMAN DID NOT HAVE AUTHORITY NEEDED TO ORGANIZE OR DEAL WITH THE SUBS WITHOUT GETTING A VETO FROM WEBBER. ALL SUBS WERE UNHAPPY WITH CONTRACTOR AND CONTINUALLY GRUMBLING AND HIS ATTITUDE WAS THE SAME TOWARDS THEM.

"/4) WEBBER'S ATTITUDE WAS VERY CHANGEABLE - SOMETIMES HE COULDN-T BE NICE ENOUGH BUT THE MAJORITY OF THE TIME HE WAS DISAGREEABLE AND ARGUMENTATIVE. ALWAYS ON THE DEFENSIVE AND CONTINUALLY LOOKING FOR LOOPHOLES.

"/5) EFFECTIVE USE OF EQUIP. MANPOWER - WEBBER HAD MEN WHO WERE ENTIRELY CAPABLE IF HE WOULD LET THEM ALONE BUT THEY COULD NOT PROCEED AT OWN SPEEDS OR QUALITY OF WORK. ALWAYS TELLING THEM THEY WERE LOSING MONEY FOR HIM. EQUIPMENT ALWAYS AT SOME OTHER JOB.'

WE ARE ADVISED WITH REFERENCE TO YOUR PERFORMANCE UNDER CONTRACT NO. - 00832 THAT YOU VIOLATED THE SAFETY REGULATIONS OF THE CONTRACT. ADDITIONALLY, THE PROCURING AGENCY FOUND THAT YOU WERE AN OFFICIAL OF A FIRM (MORGAN) WHICH HAD BEEN DEBARRED BY THE AIR FORCE FOR WILLFUL FAILURE TO PERFORM A CONTRACT IN ACCORDANCE WITH THE SPECIFICATIONS. ALSO, BASED ON DETAILED INFORMATION IN THE FILE, IT IS REPORTED THAT YOU HAD AN ACTIVE MANAGEMENT ROLE WITH MORGAN IN THE ADMINISTRATION OF THE CONTRACT WHICH LED TO THE DEBARMENT OF MORGAN ON JANUARY 26, 1968.

ALTHOUGH WE DO NOT FEEL THAT THE DEBARMENT OF MORGAN, STANDING ALONE, WOULD JUSTIFY AN ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY OF YOUR FIRM TO PERFORM THE QUESTIONED CONTRACT (SEE 43 COMP. GEN. 140; CF. 39 ID. 468), WE FIND NO BASIS, ON THE RECORD BEFORE US, TO IGNORE THE ESTABLISHED FACTS REGARDING YOUR POOR PERFORMANCE UNDER THREE PREVIOUS CONTRACTS WITH REGION 10. WHILE YOUR OVERALL PERFORMANCE ON CONTRACT NO. -00832 APPEARED SATISFACTORY, THE MINOR FAULT THERE, WHEN CONSIDERED IN THE LIGHT OF THE SERIOUS DEFAULTS IN ACCEPTABLE PERFORMANCE UNDER THE OTHER TWO CONTRACTS, EVIDENCES A LACK OF BUSINESS INTEGRITY AND PERSERVERANCE. COMPARE, IN THIS REGARD, THE FACTUAL PRESENTATION APPEARING IN 43 COMP. GEN. 257, 262- 264.

IT IS PROVIDED AT 41 U.S.C. 253 (B) THAT CONTRACT AWARDS UNDER ADVERTISED PROCUREMENTS SHALL BE TO THE "RESPONSIBLE" BIDDERS WHOSE BIDS WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. IT IS WELL SETTLED THAT THE PHRASE "RESPONSIBLE BIDDER" DENOTES SOMETHING MORE THAN THE MERE ABILITY OR CAPACITY OF A BIDDER TO PERFORM THE CONTRACT, SO THAT A BIDDER'S RECORD OF INTEGRITY AND CONTRACT PERSEVERANCE MAY BE CONSIDERED IN DETERMINING WHETHER HE IS, IN FACT, A RESPONSIBLE BIDDER. 39 COMP. GEN. 468. THE CITED FPR PROVISIONS IMPLEMENT THESE PRINCIPLES. SINCE THE DETERMINATION OF A BIDDER'S RESPONSIBILITY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION, OUR OFFICE HAS CONSISTENTLY ADHERED TO THE RULE THAT THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY WILL NOT BE QUESTIONED UNLESS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE. 36 COMP. GEN. 42. THE UNDERLYING RATIONALE OF THIS RULE IS STATED AT 39 COMP. GEN. 705, 711, AS FOLLOWS:

"* * * THE PROJECTION OF A BIDDER'S ABILITY TO PERFORM IF AWARDED A CONTRACT IS OF NECESSITY A MATTER OF JUDGMENT. WHILE SUCH JUDGMENT SHOULD BE BASED ON FACT AND SHOULD BE ARRIVED AT IN GOOD FAITH, IT MUST PROPERLY BE LEFT LARGELY TO THE SOUND ADMINISTRATIVE DISCRETION OF THE CONTRACTING OFFICES INVOLVED, SINCE THEY ARE IN THE BEST POSITION TO ASSESS RESPONSIBILITY, THEY MUST BEAR THE MAJOR BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, AND THEY MUST MAINTAIN THE DAY TO DAY RELATIONS WITH THE CONTRACTOR ON BEHALF OF THE GOVERNMENT. FOR THESE REASONS, IT WOULD BE UNREASONABLE TO SUPERIMPOSE THE JUDGMENT OF OUR OFFICE OR ANY OTHER AGENCY OR GROUP ON THAT OF THE CONTRACTING OFFICIALS. * * *"

THE CONTRACTING OFFICER HAS BASED HIS DETERMINATION ON THE HISTORY OF YOUR PERFORMANCE UNDER THE THREE CONTRACTS AND YOUR ASSOCIATION WITH THE MORGAN FIRM. THE RECORD, TAKEN AS A WHOLE, ESTABLISHES THAT YOU HAVE THE NECESSARY CAPACITY AND CREDIT TO DO AN ACCEPTABLE JOB; HOWEVER, IT APPEARS THAT YOU WERE UNWILLING TO DO AN ACCEPTABLE JOB. WHILE SOME OF THE PERFORMANCE DEFICIENCIES NOTED IN THE RECORD MAY HAVE BEEN MINOR WHEN CONSIDERED INDIVIDUALLY, THE CUMULATIVE EFFECT WAS TO UNDULY INCREASE THE BURDEN OF ADMINISTRATION FROM THE GOVERNMENT'S STANDPOINT. SUCH RECORD IS, WE THINK, ADEQUATE TO SUPPORT A DETERMINATION OF YOUR NONRESPONSIBILITY BY THE CONTRACTING OFFICER. THEREFORE, WE CANNOT CONCLUDE THAT YOUR DISQUALIFICATION WAS ARBITRARY, CAPRICIOUS OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE, OR THAT THE AWARD MADE TO SPITZER, INC., WAS IMPROPER.