B-165576, DEC. 31, 1968

B-165576, DEC. 31, 1968

TO SOUTHERN SPACE, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEFAX DATED NOVEMBER 4, 1968, PROTESTING AWARD MADE TO INTERSTATE INDUSTRIAL UNIFORM RENTAL SERVICE, INC., UNDER INVITATION FOR BIDS NO. N00102-69-B-0050, ISSUED ON SEPTEMBER 17, 1968, BY THE PORTSMOUTH NAVAL SHIPYARD, NEW HAMPSHIRE.

THE PROCUREMENT COVERED AN INDEFINITE QUANTITY OF SPECIALIZED LAUNDRY SERVICES INVOLVING THE DECONTAMINATION OF CLOTHING FOR THE PERIOD NOVEMBER 1, 1968, THROUGH OCTOBER 31, 1969. UNDER THE INVITATION, THE SUCCESSFUL CONTRACTOR IS REQUIRED TO USE HIS VEHICLES TO PICK UP RADIOACTIVE- CONTAMINATED SPECIAL CLOTHING AT THE SHIPYARD, TRANSPORT THE CLOTHING TO HIS PLACE OF BUSINESS, LAUNDER AND DECONTAMINATE ALL ITEMS, MAKE REPAIRS TO CLOTHING AS REQUIRED, AND RETURN THE PROCESSED CLOTHING TO THE SHIPYARD. ALSO, SUCH PROSPECTIVE CONTRACTOR IS REQUIRED TO MAKE PICKUPS AND DELIVERIES AT LEAST ONCE A WEEK OR WHENEVER AN ACCUMULATION OF ABOUT 200 SETS OF CLOTHING IS REACHED. IT IS FURTHER REQUIRED THAT PICKUPS MUST BE MADE WITHIN 24 HOURS AFTER SERVICE IS REQUESTED AND RETURN OF THE PROCESSED CLOTHING MUST BE MADE WITHIN 48 HOURS AFTER PICKUP.

BIDS WERE SOLICITED FROM EIGHT SOURCES AND PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY. YOUR COMPANY REQUESTED AND WAS PROVIDED A BID SET AFTER SYNOPSIS. THREE BIDS WERE RECEIVED AND OPENED ON OCTOBER 15, 1968. YOUR COMPANY SUBMITTED THE LOWEST BID FOLLOWED BY THE BIDS OF INTERSTATE UNIFORM RENTAL SERVICE, INC., AND UNIFORM SERVICES, INC. HOWEVER, DURING THE EVALUATION OF YOUR BID, A QUESTION AROSE CONCERNING YOUR ABILITY TO MEET THE PICKUP AND DELIVERY REQUIREMENTS OF THE INVITATION, CONSIDERING THAT YOUR PLANT WAS LOCATED AT NORFOLK, VIRGINIA, SOME 625 MILES FROM THE PORTSMOUTH NAVAL SHIPYARD. IN VIEW THEREOF, YOU WERE REQUESTED TO STATE YOUR INTENTION REGARDING PICKUP AND DELIVERY SERVICE. BY LETTER OF OCTOBER 30, 1968, YOU ADVISED THE CONTRACTING OFFICER THAT:

"WHEN A 48 HOUR SERVICE IS NECESSARY WE INTEND EITHER TO MOVE A MOBILE NUCLEAR LAUNDRY CLOSE TO THE BASE IN KITTERY OR TO TRUCK THE CONTAMINATED LAUNDRY DIRECT FROM KITTERY TO PORTSMOUTH, VIRGINIA, A DISTANCE OF 600 MILES, USING TWO ALTERNATE DRIVERS WITH A TOTAL DRIVING TIME OF 28 HOURS, GIVING OUR PLANT IN VIRGINIA 20 HOURS IN WHICH TO PROCESS THE WORK. THERE ARE EXCELLENT MOTOR FREIGHT CONNECTIONS BETWEEN THE PORTSMOUTH BASE AND OUR NUCLEAR LAUNDRY IN VIRGINIA. HEMMINGWAY, QUIN AND AU CLAIR TRUCKING ARE ON THE BASE EVERY DAY. DURING THE SLACK PERIOD WE INTEND TO USE THEIR SERVICES ON A WEEKLY DELIVERY BASIS.'

HOWEVER, IT WAS THE POSITION OF THE PROCUREMENT AGENCY THAT YOUR PROPOSED METHODS AND SCHEDULES OF DELIVERY WERE UNACCEPTABLE BECAUSE THEY WERE NOT IN CONFORMITY WITH THE NEEDS OF THE GOVERNMENT. THE PROCUREMENT AGENCY REPORTS, IN THIS REGARD, THAT FAILURE TO MAKE TIMELY DELIVERY COULD RESULT IN WORK STOPPAGE IN THE CONSTRUCTION OR OVERHAUL OF ONE OR MORE NUCLEAR SUBMARINES DURING ROUTINE DECONTAMINATION OF REACTOR SPACES AND THAT PERSONNEL SAFETY HAZARD AND WORK STOPPAGE AND MATERIAL LOSS FROM RADIOACTIVE CONTAMINATION COULD RESULT IF LACK OF CLEAN SPECIAL CLOTHING PREVENTED RAPID CONTAINMENT AND CLEANUP OF AN ACCIDENTAL SPILL.

SINCE THE CURRENT CONTRACT EXPIRED OCTOBER 31, 1968, THE CURRENT CONTRACTOR WAS REQUESTED TO EXTEND THE TERM OF HIS SERVICES UNTIL THE NEW CONTRACT WAS READY, BUT IT REFUSED TO EXTEND THE CURRENT CONTRACT AS REQUESTED. THE CONTRACTING OFFICER THEREUPON DETERMINED THAT THE PROPOSED PICKUP AND DELIVERY METHODS OF YOUR COMPANY WERE UNACCEPTABLE AND NOT IN CONFORMANCE WITH THE NEEDS OF THE GOVERNMENT AND THAT IN ORDER TO ASSURE CONTINUITY OF SERVICE, AWARD SHOULD BE MADE IMMEDIATELY TO THE SECOND LOW BIDDER, INTERSTATE INDUSTRIAL UNIFORM RENTAL SERVICE, INC. SUCH AWARD WAS MADE ON OCTOBER 31, 1968.

IN MAKING SUCH DETERMINATION, THE COMMANDER, PORTSMOUTH NAVAL SHIPYARD, FOUND WITH RESPECT TO YOUR PROPOSED DELIVERY METHODS, THAT:

"* * * THE BIDDER DOES NOT HAVE, AND COULD NOT PROMPTLY OBTAIN A LICENSE TO OPERATE HIS MOBILE FACILITIES HERE. IT WAS AGREED THAT THE PROVISION FOR 48 HOUR TURN AROUND TIME COULD NOT BE MET BY THE USE OF COMMON CARRIER TRANSPORTATION SINCE THERE ARE NO AVAILABLE COMMON CARRIER FACILITIES WHICH PROVIDE FOR DIRECT DELIVERY TO HIS NORFOLK PLANT FROM THE SHIPYARD. THE BIDDER AGREED THAT HE COULD NOT UTILIZE EXCLUSIVE USE TRUCK FOR THE PRICE BID.'

YOU ASSERT THAT AWARD WAS MADE WITHOUT NOTIFICATION TO THE SMALL BUSINESS ADMINISTRATION (SBA); THAT THERE WAS NO REAL URGENCY TO AWARD THE CONTRACT; THAT DAILY DIRECT JET AIR FREIGHT SERVICE FROM BOSTON TO NORFOLK AND RETURN WITH FAVORABLE SCHEDULES IS AVAILABLE; THAT THE AWARD WAS MADE SIMPLY OUT OF FEAR THAT YOUR FIRM MAY NOT BE ABLE TO PERFORM WITHOUT VERIFICATION IF SUCH WAS A FACT; AND THAT SBA SHOULD HAVE EXERCISED ITS JURISDICTION TO DETERMINE YOUR FIRM'S CAPABILITIES.

THE RECORD REVEALS THAT SBA WAS NOTIFIED ON NOVEMBER 4, 1968, IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4 (C) (IV), THAT THE CONTRACTING OFFICER HAD CERTIFIED IN WRITING THAT THE AWARD HAD TO BE MADE WITHOUT DELAY AND OF THE SPECIFIC REASONS FOR SUCH URGENT ACTION. SBA ACKNOWLEDGED RECEIPT OF SUCH ADVICE ON NOVEMBER 6, 1968, AND STATED, IN EFFECT, THAT THE JUSTIFICATION FOR AN IMMEDIATE AWARD WITHOUT REFERRAL TO SBA FOR CERTIFICATE OF COMPETENCY ACTION WAS SUPPORTED BY THE RECORD. SEE 38 COMP. GEN. 248.

WITH REGARD TO YOUR CONTENTION THAT THERE WAS NO REAL URGENCY TO AWARD THE CONTRACT, WE ARE ADVISED THAT A RADIOACTIVE SPILL COULD OCCUR AT ANYTIME REQUIRING DAILY PICKUP AND DELIVERY WITH THE RESULTANT BURDENS AND CONFUSION INVOLVED IN THE PROCESSING OF DAILY PURCHASE ORDERS UNTIL A TERM CONTRACT IS FINALLY AWARDED. IT IS FURTHER POINTED OUT THAT CONTRACT USAGE IS NOT PREDICTABLE EXCEPT AS REGARDS ESTIMATED ANNUAL REQUIREMENTS BASED ON HISTORICAL DATA AND THAT THE 60-DAY ACCEPTANCE PERIOD IN THE INVITATION DID NOT BIND THE GOVERNMENT TO WAIT THE FULL 60 DAYS BEFORE AWARDING A CONTRACT.

THE INVITATION SPECIFIES PICKUP AND DELIVERY BY CONTRACTOR'S VEHICLE IN THE SHIPYARD. COMMON CARRIER, INCLUDING AIR FREIGHT, IS NOT ACCEPTABLE TO THE SHIPYARD DUE TO THE HIGH RISK OF DELAY, MISHANDLING AND MISROUTING OF POTENTIALLY DANGEROUS AND URGENTLY NEEDED CLOTHING. NO COMMON CARRIER OFFERS PORTAL-TO-PORTAL SERVICE WITHOUT TRANSSHIPMENT EN ROUTE BETWEEN PORTSMOUTH NAVAL SHIPYARD AND YOUR PLANT AT NORFOLK, VIRGINIA. ADDITION, THE SEVERITY OF THE NEW ENGLAND WINTER WEATHER SIGNIFICANTLY INCREASES THE DIFFICULTY OF TIMELY DELIVERY FROM SUCH A DISTANCE REGARDLESS OF THE MODE OF TRANSPORTATION.

YOU STATED IN YOUR LETTER OF OCTOBER 30, 1968, THAT YOU DID NOT INTEND TO PERFORM INITIALLY IN ACCORDANCE WITH THE PROVISIONS OF THE INVITATION AND "WHEN 48 HOURS SERVICE IS NECESSARY" (WHICH IS, IN FACT, NORMAL ACTIVITY) YOU WOULD FURNISH A "MOBILE NUCLEAR LAUNDRY" WHICH WOULD BE STATIONED NEAR THE SHIPYARDS. THE PROCUREMENT ACTIVITY REPORTS, HOWEVER, THAT IT REQUIRES 30 TO 60 DAYS TO OBTAIN A LICENSE - WHICH YOU DID NOT POSSESS -- FOR OPERATION OF A NUCLEAR LAUNDRY IN NEW HAMPSHIRE, ASSUMING THAT SUITABLE LOCATIONS, DISPOSAL METHODS AND FACILITIES FOR CONTAMINATED WATER, ETC., HAVE BEEN SATISFACTORILY ARRANGED.

THE DETERMINATION OF A PROSPECTIVE CONTRACTOR'S QUALIFICATIONS, AS IN YOUR CASE, FOR A PARTICULAR CONTRACT IS PRIMARILY THE FUNCTION OF THE CONTRACTING AGENCY, INVOLVING THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION, AND IN THE ABSENCE OF BAD FAITH OR LACK OF SUBSTANTIAL GROUNDS FOR THE ADMINISTRATIVE DETERMINATION, AS HERE, THERE IS NO BASIS FOR LEGAL OBJECTION. 37 COMP. GEN. 430, 435. UPON REVIEW OF THE RECORD, WE FIND NO BASIS TO DISAGREE WITH THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY. SEE ASPR 2-407.1 AND 10 U.S.C. 2305 (C), WHICH BOTH REQUIRE THAT AWARDS BE MADE TO RESPONSIBLE BIDDERS WHOSE BIDS WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.