B-170179, AUG. 26, 1970

B-170179, AUG. 26, 1970

BID PROTEST -- BIDDER RESPONSIBILITY DENIAL OF PROTEST AGAINST AWARD OF JANITORIAL SERVICE CONTRACT TO LOW BIDDER THAT IS A NEWLY ESTABLISHED FIRM. DETERMINATION THAT LOW BIDDER, A NEWLY ESTABLISHED CORPORATION WITH PERSONNEL HAVING THE LENGTH AND TYPE OF EXPERIENCE REQUIRED IS WITHIN THE DISCRETION AND JUDGMENT OF THE CONTRACTING OFFICER AND SUCH DETERMINATION WILL NOT BE DISTURBED IN ABSENCE OF EVIDENCE THAT IT IS ARBITRARY, CAPRICIOUS OR NOT BASED UPON SUBSTANTIAL EVIDENCE.

TO SUNSET CUSTODIAL SERVICES:

FURTHER REFERENCE IS MADE TO YOUR LETTER RECEIVED BY OUR OFFICE ON JULY 1, 1970, PROTESTING AGAINST THE ACTION OF THE NAVAL FACILITIES ENGINEERING COMMAND IN AWARDING CONTRACT NO. N62464-70-C-0195 TO THE INTERNATIONAL SERVICE CORPORATION UNDER INVITATION FOR BIDS NO. N62464 70-B-0195.

THE PUBLIC WORKS OFFICER, BOSTON NAVAL SHIPYARD, BOSTON, MASSACHUSETTS, BY INVITATION FOR BIDS NO. N62464-70-B-0195 REQUESTED BIDS FOR THE FURNISHING OF JANITORIAL SERVICES AT THE NAVAL STATION, BOSTON, MASSACHUSETTS, DURING THE PERIOD JULY 1, 1970, THROUGH JUNE 30, 1971. CLAUSE 1.21, ENTITLED COMPETENCY OF BIDDERS, OF THE GENERAL PROVISIONS, PROVIDED THAT BIDS WOULD BE CONSIDERED ONLY FROM BIDDERS WHO ARE, IN THE JUDGMENT OF THE CONTRACTING OFFICER, FINANCIALLY RESPONSIBLE AND ABLE TO SHOW THAT THEY HAVE SATISFACTORILY PERFORMED JANITORIAL SERVICES WITHIN THE PAST 2 YEARS OF THE SIZE AND SCOPE OF THAT REQUIRED BY THE SPECIFICATIONS, AND THAT THEY HAVE AVAILABLE, OR CAN OBTAIN, THE NECESSARY ORGANIZATION AND EQUIPMENT TO PROPERLY FULFILL ALL OF THE SERVICES AND CONDITIONS REQUIRED UNDER THE SPECIFICATIONS.

TWO BIDS WERE RECEIVED AND OPENED ON JUNE 25, 1970. THE LOWEST BID WAS SUBMITTED BY THE INTERNATIONAL SERVICE CORPORATION AND THE ONLY OTHER BID WAS SUBMITTED BY YOUR FIRM. AFTER MAKING AN AFFIRMATIVE DETERMINATION THAT INTERNATIONAL WAS A RESPONSIBLE PROSPECTIVE CONTRACTOR WITHIN THE MEANING OF PARAGRAPH 1-902 OF THE ARMED SERVICES PROCUREMENT REGULATION, THE CONTRACTING OFFICER AWARDED THE CONTRACT FOR FURNISHING THE JANITORIAL SERVICES TO INTERNATIONAL ON JUNE 29, 1970.

WITH ITS BID, INTERNATIONAL SUBMITTED A STATEMENT OF EXPERIENCE AND QUALIFICATIONS WHICH SHOWS THAT THE CORPORATION HAS BEEN IN EXISTENCE SINCE MAY 2, 1970; THAT THE CORPORATION HAS TWO SMALL CONTRACTS FOR JANITORIAL SERVICES; THAT THE TWO PRINCIPAL OFFICERS OF THE CORPORATION HAD 2-1/2 YEARS' AND 1 YEAR'S EXPERIENCE, RESPECTIVELY, AS BUILDING SERVICE MANAGERS AT THE 40-STORY NEW ENGLAND MERCHANTS BANK BUILDING IN BOSTON, MASSACHUSETTS; AND THAT WHILE ACTING AS BUILDING SERVICE MANAGERS, EACH INDIVIDUAL HAD SUPERVISION OVER 125 EMPLOYEES.

THE EXPERIENCE AND QUALIFICATIONS OF INTERNATIONAL WERE EVALUATED PRIOR TO AWARD BY A CONTRACTS AWARDS COMMITTEE CONSISTING OF FOUR INDIVIDUALS. IN ITS REPORT OF JUNE 29, 1970, IN WHICH IT RECOMMENDED THAT AWARD BE MADE TO INTERNATIONAL, THE COMMITTEE INDICATED THAT WHILE INTERNATIONAL WAS A NEW COMPANY, IN EVALUATING IT AS A "FIRM," THE EVALUATION WAS NOT MADE ON THE BASIS OF THE FIRM'S LONGEVITY, BUT RATHER UPON THE LENGTH AND TYPE OF EXPERIENCE OF THE FIRM'S PERSONNEL. IN THAT REGARD, IN 36 COMP. GEN. 673 (1957) OUR OFFICE HELD THAT IN EVALUATING A NEWLY FORMED CORPORATION, THE EXPERIENCE OF THE PRINCIPAL OFFICERS COULD BE CONSIDERED. SEE, ALSO, B- 160758, MAY 15, 1967, AND B 167054, JANUARY 14, 1970. IT WAS THE OPINION OF THE AWARDS COMMITTEE THAT THE TWO PRINCIPAL OFFICERS OF INTERNATIONAL HAD THE TYPE OF EXPERIENCE REQUIRED BY CLAUSE 1.21 OF THE SPECIFICATIONS AND, THEREFORE, THE CORPORATION WAS CAPABLE OF PERFORMING THE SUBJECT CONTRACT. THE RECORD INDICATES THAT THE CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WITH RESPECT TO INTERNATIONAL WAS BASED ON THE REPORT OF THE AWARDS COMMITTEE.

IT IS OUR VIEW THAT THE REQUIREMENTS IN CLAUSE 1.21 OF THE SPECIFICATIONS RELATE TO A BIDDER'S RESPONSIBILITY. SEE 37 COMP. GEN. 420 (1957); B- 152896, FEBRUARY 13, 1964; AND 45 COMP. GEN. 4 (1965). IT LONG HAS BEEN OUR POSITION THAT IT IS NOT WITHIN THE PROVINCE OF OUR OFFICE TO DETERMINE THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS, SUCH DETERMINATION BEING A QUESTION OF FACT FOR DETERMINATION BY THE CONTRACTING OFFICER CONCERNED. 45 COMP. GEN. 4 (1965); 43 ID. 257 (1963); 38 ID. 131 (1958). IN THESE AND OTHER DECISIONS, WE HAVE TAKEN THE POSITION THAT SUCH A DETERMINATION NECESSARILY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF DISCRETION AND JUDGMENT WHICH SHOULD NOT BE DISTURBED BY OUR OFFICE IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS, OR NOT BASED UPON SUBSTANTIAL EVIDENCE.

ACCORDINGLY, ON THE RECORD BEFORE US, WE FIND NO BASIS UPON WHICH WE MAY PROPERLY DISTURB THE AWARD MADE TO INTERNATIONAL.