B-174897, JUN 1, 1972

B-174897, JUN 1, 1972

BID PROTEST - BIDDER RESPONSIBILITY - DETERMINATION DENIAL OF PROTEST BY TRIO-D FARM SUPPLY AGAINST A CONTRACTING OFFICER'S DETERMINATION THAT TRIO-D IS A NONRESPONSIBLE CONTRACTOR FOR THE AWARD OF A CONTRACT BY GSA, FOR FURNISHING FORAGE AND FEED TO SEVERAL GOVERNMENT INSTALLATIONS IN THE WASHINGTON METROPOLITAN AREA. THE PRIMARY DUTY FOR MAKING DETERMINATIONS OF RESPONSIBILITY RESTS WITH THE ADMINISTRATIVE AGENCY AND, WHERE, AS HERE, THERE ARE CONFLICTING REPORTS AS TO A CONTRACTOR'S RESPONSIBILITY, IT IS THE CONTRACTING OFFICER'S PREROGATIVE TO WEIGH ALL THE EVIDENCE AND TO MAKE THE DETERMINATION REQUIRED BY THE APPLICATION OF HIS OWN BEST JUDGMENT. FURTHER, SUBSEQUENT EVIDENCE OF RESPONSIBILITY DOES NOT UNDERMINE THE PROPRIETY OF THE ORIGINAL DECISION. ACCORDINGLY, THE PROTEST IS DENIED.

TO TRIO-D FARM SUPPLY:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 17, 1972, WITH ENCLOSURES, AND SUBSEQUENT CORRESPONDENCE AND MEETINGS REGARDING YOUR PROTEST AGAINST THE CONTRACTING OFFICER'S DETERMINATION THAT YOUR FIRM IS NOT A RESPONSIBLE CONTRACTOR FOR THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. 3FP-BD-R-2707-8-26-71, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA).

THE SUBJECT INVITATION, ISSUED ON JULY 28, 1971, WAS FOR A REQUIREMENTS CONTRACT FOR FURNISHING FORAGE AND FEED TO SEVERAL GOVERNMENT INSTALLATIONS IN THE WASHINGTON METROPOLITAN AREA FOR THE PERIOD NOVEMBER 1, 1971, OR DATE OF AWARD, WHICHEVER IS LATER, THROUGH OCTOBER 31, 1972. THE PROCUREMENT IS A 100-PERCENT SET-ASIDE FOR SMALL BUSINESS PARTICIPATION. THE RECORD INDICATES THAT BIDS WERE OPENED ON SEPTEMBER 14, 1971, AND OF THE TWO BIDS RECEIVED, TRIO-D WAS THE LOW BIDDER ON ALL ITEMS. PURSUANT TO SECTION 1-1.1205-4 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), THE CONTRACTING OFFICER REQUESTED GSA'S REGION 3 QUALITY CONTROL DIVISION TO CONDUCT A PREAWARD SURVEY OF TRIO D. THE PREAWARD SURVEY REPORT DATED NOVEMBER 19, 1971, RECOMMENDED THAT NO AWARD BE MADE TO YOUR FIRM BECAUSE OF POOR PAST PERFORMANCE ON PREVIOUS CONTRACTS. THIS NEGATIVE RECOMMENDATION WAS BASED ON THE FACT THAT COMPLAINTS CONCERNING POOR SERVICE HAD BEEN RECEIVED FROM FOUR GOVERNMENT INSTALLATIONS WHICH HAD RECEIVED FORAGE AND FEED FROM YOUR FIRM UNDER PRIOR CONTRACTS. THESE INSTALLATIONS ARE THE WASHINGTON, D.C; NATIONAL ZOOLOGICAL PARK, ROCK CREEK STABLES AND FORT DUPONT STABLES OF THE NATIONAL PARK SERVICE, AND THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE PUBLIC HEALTH SERVICE.

IN VIEW OF THE FACT THAT YOUR FIRM IS A SMALL BUSINESS CONCERN, HOWEVER, THE NEGATIVE RESPONSIBILITY FINDING WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) ON NOVEMBER 24, 1971, UNDER THE CERTIFICATE OF COMPETENCY (COC) PROGRAM. IN THIS REGARD, BY LETTER DATED DECEMBER 17, 1971, THE SBA ADVISED YOUR FIRM AND GSA THAT IT DECLINED TO ISSUE A COC. THEREAFTER, ON DECEMBER 21, 1971, THE CASE WAS SUBMITTED TO THE GSA REGIONAL REVIEW COMMITTEE, WHICH RECOMMENDED THAT NO AWARD BE MADE TO YOUR FIRM AND THAT SINCE NO OTHER RESPONSIVE BIDS WERE RECEIVED, ALL ITEMS BE NEGOTIATED PURSUANT TO 41 U.S.C. 252(C)(10), WHICH PERMITS NEGOTIATIONS FOR PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO SECURE COMPETITION. WE ARE ADVISED THAT THE SUBJECT INVITATION WAS CANCELED ON DECEMBER 29, 1971, AND A NEW SOLICITATION ISSUED. NO AWARD HAS BEEN MADE TO DATE UNDER THE NEW SOLICITATION.

YOU CONTEND THAT THE CONTRACTING OFFICER'S DETERMINATION, CONCURRED IN BY SBA, THAT YOUR FIRM IS A NONRESPONSIBLE BIDDER FOR PURPOSES OF THIS PROCUREMENT WAS ERRONEOUS. IN THIS REGARD, YOU STATE THAT UPON RECEIPT OF SBA'S LETTER DATED DECEMBER 17, 1971, ADVISING YOUR FIRM OF ITS DENIAL OF A COC, YOU HAND CARRIED TO THE SBA PHILADELPHIA REGIONAL OFFICE, REGION III, LETTERS FROM NINE GOVERNMENT USERS OF YOUR FORAGE AND FEED INDICATING CONTINUING SATISFACTORY SERVICE, AND YOU CONTEND, THEREFORE, THAT THESE LETTERS CLEARLY INDICATE THAT YOUR FIRM WAS AND IS A RESPONSIBLE BIDDER. ADDITIONALLY, YOU HAVE SUBMITTED DIRECTLY TO OUR OFFICE SIGNED STATEMENTS FROM THREE OF THE FOUR SOURCES NAMED IN THE PREAWARD SURVEY REPORT AS HAVING COMPLAINED OF POOR SERVICE. TWO OF THESE STATEMENTS STATE, CONTRARY TO THE INFORMATION IN THE PREAWARD SURVEY REPORT, THAT NO UNSATISFACTORY REPORTS HAD PREVIOUSLY BEEN MADE, AND THE THIRD STATES THAT SERVICE BY YOUR FIRM HAS BEEN SATISFACTORY IN THE PAST.

WITH RESPECT TO ADMINISTRATIVE FINDINGS OF NONRESPONSIBILITY, OUR OFFICE HAS CONSISTENTLY HELD THAT THE QUESTION OF A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY IS A MATTER FOR DETERMINATION BY THE CONTRACTING OFFICER AND THAT SINCE SUCH DETERMINATION INVOLVES A CONSIDERABLE RANGE OF DISCRETION, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER UNLESS IT IS SHOWN BY CLEAR AND CONVINCING EVIDENCE THAT THE FINDING OF NONRESPONSIBILITY WAS ARBITRARY, CAPRICIOUS, OR NOT BASED UPON SUBSTANTIAL EVIDENCE. 45 COMP. GEN. 4 (1965). FURTHER, WE HAVE HELD THAT WHEN A BIDDER'S APPLICATION FOR ISSUANCE OF A COC IS DENIED BY SBA, WHICH MAKES ITS OWN FURTHER INQUIRY AND ANALYSIS OF THE INFORMATION OBTAINED, THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY MUST BE REGARDED AS HAVING BEEN AFFIRMED BY SBA. SEE 51 COMP. GEN. (B-174672, JANUARY 31, 1972).

IN THIS INSTANCE, SBA ADVISED YOU BY LETTER DATED DECEMBER 23, 1971, THAT WHILE IT COULD NOT ISSUE A COC FOLLOWING A NEGATIVE DETERMINATION WITHOUT A SECOND REFERRAL FROM THE PROCURING ACTIVITY ON THE BASIS OF THE NEW EVIDENCE PRESENTED BY YOU, THE PROCURING ACTIVITY COULD RECONSIDER ITS NEGATIVE ACTION IN VIEW OF THIS NEW INFORMATION AND AWARD A CONTRACT IF IT DETERMINED THAT YOUR FIRM WAS RESPONSIBLE. IN THE ALTERNATIVE, THE SBA LETTER ADVISED THAT THE PROCURING ACTIVITY COULD AGAIN REFER THE QUESTION AS TO CAPACITY AND CREDIT TO SBA FOR CONSIDERATION AS A NEW CASE. LETTER DATED DECEMBER 23, 1971, THEREFORE, SBA TRANSMITTED COPIES OF THE NINE LETTERS TO REGION 3 OF GSA FOR ITS CONSIDERATION.

THE REPORT TO OUR OFFICE FROM GSA INDICATES THAT THE NINE FAVORABLE LETTERS FORWARDED BY SBA WERE, IN FACT, CONSIDERED BEFORE IT WAS FINALLY DETERMINED ON DECEMBER 29, 1971, THAT YOUR BID SHOULD BE REJECTED AND THE PROCUREMENT RESOLICITED. HOWEVER, SINCE THE INFORMATION CONTAINED IN THE NINE LETTERS WAS IN DIRECT CONFLICT WITH THE INFORMATION CONTAINED IN THE PREAWARD SURVEY, GSA'S QUALITY CONTROL INSPECTOR CALLED THE MAJORITY OF THE INDIVIDUALS WHO HAD WRITTEN THE LETTERS IN ORDER TO RESOLVE THE CONFLICTING REPORTS. IT IS REPORTED IN THIS REGARD THAT NOTWITHSTANDING THE LETTERS INDICATING SATISFACTORY SERVICE, REPRESENTATIVES OF SEVERAL OF THE GOVERNMENT USERS OF YOUR FEED AND FORAGE INDICATED TO THE GSA INSPECTOR THAT UNSATISFACTORY SERVICE HAD, IN FACT, BEEN EXPERIENCED; THAT IN ONE INSTANCE A FAVORABLE LETTER HAD BEEN FORMALLY WITHDRAWN; AND THAT IN ANOTHER INSTANCE, CONSIDERABLE DOCUMENTATION WITH RESPECT TO INADEQUATE SERVICE WAS FURNISHED. IT WAS ON THE BASIS OF THIS CONFLICTING EVIDENCE - THE FAVORABLE LETTERS FURNISHED BY YOU ON THE ONE HAND AND THE INDEPENDENTLY DEVELOPED UNFAVORABLE INFORMATION ON THE OTHER - THAT THE FINAL DECISION NOT TO RECONSIDER YOUR RESPONSIBILITY WAS MADE.

AS INDICATED ABOVE, THE PRIMARY DUTY FOR MAKING DETERMINATIONS OF BIDDER RESPONSIBILITY RESTS WITH THE ADMINISTRATIVE AGENCY. IT FOLLOWS, THEN, THAT WHERE, AS HERE, THERE ARE CONFLICTING REPORTS AS TO A FIRM'S RESPONSIBILITY, IT IS THE PREROGATIVE OF THE CONTRACTING OFFICER TO WEIGH ALL THE EVIDENCE AND TO MAKE THE DETERMINATION REQUIRED BY THE APPLICATION OF HIS OWN BEST JUDGMENT. FURTHER, OUR OFFICE HAS HELD THAT SUBSEQUENT EVIDENCE OF RESPONSIBILITY DOES NOT UNDERMINE THE PROPRIETY OF THE ORIGINAL DETERMINATION. SEE B 174809(2), APRIL 20, 1972.

WE HAVE CAREFULLY REVIEWED AND CONSIDERED THE INFORMATION RELIED UPON BY THE CONTRACTING OFFICER IN MAKING THE DETERMINATION THAT YOUR FIRM WAS NOT A RESPONSIBLE BIDDER FOR PURPOSES OF THE ORIGINAL PROCUREMENT, AND WE CANNOT CONCLUDE THAT, CONSIDERING ALL OF THE EVIDENCE WHICH WAS BEFORE HIM WHEN HE MADE HIS DECISION, THE DECISION IS SUBJECT TO QUESTION. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.

WE NOTE, HOWEVER, THAT THE RECORD BEFORE US INDICATES THAT ON THE BASIS OF A LATER PREAWARD SURVEY GSA NOW CONSIDERS TRIO-D TO BE A RESPONSIBLE FIRM AND THAT, THEREFORE, YOUR FIRM WILL RECEIVE AN AWARD UNDER THE NEW SOLICITATION, IF OTHERWISE ELIGIBLE.