B-168833, MAR. 20, 1970

B-168833, MAR. 20, 1970

BIDDERS--QUALIFICATIONS--ADMINISTRATIVE DETERMINATIONS--FINALITY REGARDING CONTRACTING OFFICER'S POSTPONEMENT OF AFFIRMATIVE DECISION ON LOWER BIDDER'S UNFAVORABLE RESPONSIBILITY WHEN BIDDER OFFERED TO FURNISH ADDITIONAL INFORMATION WHICH WAS NOT FORTHCOMING, AND CONTRACTING OFFICER'S SUBSEQUENT AFFIRMATIVE DETERMINATION OF BIDDER'S NONRESPONSIBILITY, IN ACCORDANCE WITH REQUIREMENT OF ASPR 1-902, BECAUSE OF INADEQUATE FINANCIAL RESOURCES AND FAILURE TO MAINTAIN SATISFACTORY PERFORMANCE RECORD, GAO WILL OBJECT TO CONTRACTING OFFICER'S DETERMINATION ONLY WHERE MADE IN BAD FAITH OR REASONABLE BASIS IS LACKING, NEITHER BASIS FOR OBJECTION BEING PRESENT IN THIS SITUATION, SINCE CAREFUL JUDGMENT MUST BE EXERCISED BY CONTRACTING OFFICER IN DETERMINING CONTRACTOR'S ABILITY TO PERFORM AND SEEING GOVT. REQUIREMENTS ARE FULLY MET. SEE 43 COMP. GEN. 228 (1963) CITED.

TO MR. STINSON HEAD:

REFERENCE IS MADE TO YOUR PROTEST OF JANUARY 20, 1970, AGAINST THE AWARD TO A HIGHER BIDDER OF A CONTRACT FOR INTERIOR PAINTING OF BUILDING NUMBER 3248 AT FORT BENNING, GEORGIA.

INVITATION FOR BIDS NO. DABC09-70-B-0077 WAS ISSUED FOR THIS WORK ON OCTOBER 16, 1969. BIDS WERE OPENED ON NOVEMBER 21, 1969, AND YOUR BID OF $1,400 WAS THE SECOND LOW BID RECEIVED. ON JANUARY 13, 1970, THE CONTRACTING OFFICER DECIDED THAT THE LOW BIDDER COULD NOT BE DETERMINED RESPONSIBLE BASED ON THAT COMPANY'S RECORD OF UNSATISFACTORY AND UNTIMELY PERFORMANCE UNDER CONTRACT NO. DABC09-70-C C222. AT THAT POINT, YOUR COMPANY, HEAD DECORATORS AND COMPANY, BECAME ELIGIBLE FOR AWARD AS LOW BIDDER.

HOWEVER, THE CONTRACTING OFFICER ON JANUARY 15, 1970, DECIDED HE COULD NOT MAKE AN AFFIRMATIVE DETERMINATION THAT YOUR COMPANY WAS RESPONSIBLE BECAUSE OF INADEQUATE FINANCIAL RESOURCES AND YOUR COMPANY'S FAILURE TO MAINTAIN A SATISFACTORY RECORD OF PERFORMANCE. PRIOR TO REACHING THAT DECISION, THE CONTRACTING OFFICER ADVISED YOU IN A MEETING ON JANUARY 14, 1970, THAT ON THE BASIS OF THE INFORMATION AVAILABLE IT DID NOT APPEAR YOUR COMPANY WOULD BE DETERMINED RESPONSIBLE. IN RESPONSE TO YOUR OFFER AT THAT MEETING TO FURNISH FURTHER INFORMATION REFLECTING FAVORABLY UPON YOUR COMPANY'S RESPONSIBILITY, THE CONTRACTING OFFICER POSTPONED HIS DECISION UNTIL JANUARY 15, 1970. APPARENTLY, YOU CHOSE NOT TO FURNISH THE ADDITIONAL INFORMATION. AS A RESULT ON JANUARY 21, 1970, THE CONTRACTING OFFICER NOTIFIED YOU IN WRITING OF HIS DETERMINATION OF JANUARY 15, 1970. BY TELEGRAMS OF JANUARY 21, 1970, YOU PROTESTED THAT DECISION TO THE CONTRACTING OFFICER AND TO THIS OFFICE.

WHILE SUBSEQUENT REVIEWS BY THE PROCURING AGENCY REVEAL THAT THE CONTRACTING OFFICER MAY HAVE BEEN IN ERROR IN HIS CONCLUSION THAT YOUR COMPANY LACKED ADEQUATE FINANCIAL RESOURCES, THE REGULATIONS REQUIRE THE CONTRACTING OFFICER TO MAKE AN AFFIRMATIVE FINDING, NOT MERELY AS TO FINANCIAL RESOURCES BUT ON OTHER ASPECTS OF RESPONSIBILITY. SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-902. THE OTHER BASIS FOR THE CONTRACTING OFFICERS INABILITY TO MAKE AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY IS SUFFICIENT TO SUSTAIN THAT DECISION. HIS CONCLUSION THAT YOUR COMPANY HAD FAILED TO MAINTAIN A SATISFACTORY RECORD OF PERFORMANCE WAS BASED UPON PRIOR MARGINAL PERFORMANCE UNDER A GENERAL SERVICES ADMINISTRATION CONTRACT, A DEFENSE SUPPLY CONTRACT, AND IN PARTICULAR UNSATISFACTORY PERFORMANCE AS A SUBCONTRACTOR UNDER CONTRACT NO. DABC09-70-C-C--- WHICH WAS SUBSEQUENTLY TERMINATED FOR DEFAULT AS A RESULT OF THAT UNSATISFACTORY PERFORMANCE. THE DETERMINATION OF A BIDDER'S RESPONSIBILITY ESSENTIALLY IS A FORECAST OF A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM AND AS SUCH INVOLVES THE EXERCISE OF CAREFUL JUDGMENT ON THE PART OF THE CONTRACTING OFFICER WHO MUST SEE THE REQUIREMENTS OF THE GOVERNMENT ARE FULLY MET. FOR THAT REASON, THIS OFFICE WILL OBJECT TO THE CONTRACTING OFFICER'S DETERMINATION ONLY WHERE IT IS MADE IN BAD FAITH OR LACKS A REASONABLE BASIS. 43 COMP. GEN. 228 (1963). WE FIND NEITHER BASIS FOR OBJECTION PRESENT IN THIS SITUATION.