B-176391, DEC 4, 1972

B-176391, DEC 4, 1972

BID PROTEST - NONRESPONSIVENESS - EXPERIENCE INFORMATION REQUIREMENT - BIDDER RESPONSIBILITY - SUBSEQUENT UNSATISFACTORY PERFORMANCE DECISION DENYING THE PROTEST OF SHAYNE BROS., INC., AGAINST AWARD OF A CONTRACT TO BIC DISPOSAL CORP. UNDER A SOLICITATION ISSUED BY THE WASHINGTON AREA PROCUREMENT CENTER FOR GARBAGE AND REFUSE COLLECTION SERVICES AT ANDREWS AFB, WASHINGTON, D.C., AND SEVERAL OTHER LOCATIONS. FAILURE TO FURNISH INFORMATION RELATING TO AVAILABLE EQUIPMENT AND PAST EXPERIENCE WHERE IT IS REQUIRED BY THE SOLICITATION DOES NOT RENDER A BID NONRESPONSIVE SINCE SUCH MATTERS ARE CONCERNED WITH BIDDER RESPONSIBILITY AND NOT WITH THE OBLIGATION TO PERFORM IN ACCORDANCE WITH THE CONTRACT'S TERMS. MOREOVER, IT IS WITHIN THE CONTRACTING OFFICER'S AUTHORITY TO DETERMINE THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR, AND SUCH DETERMINATIONS WILL NOT BE DISTURBED BY GAO IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE ACTION WAS ARBITRARY, CAPRICIOUS OR NOT BASED UPON SUBSTANTIAL EVIDENCE. 45 COMP. GEN. 4 (1965). FINALLY, IF A CONTRACTOR SUBSEQUENTLY FAILS TO SATISFACTORILY PERFORM THE CONTRACT, THIS WOULD NOT VITIATE THE ORIGINAL DETERMINATION OF RESPONSIBILITY OR AFFECT THE VALIDITY OF THE AWARD.

TO ALEXANDER BOSKOFF:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1972, AND PRIOR CORRESPONDENCE, PROTESTING ON BEHALF OF SHAYNE BROS., INC. (SHAYNE), AN AWARD TO BIC DISPOSAL CORP. (BIC) UNDER SOLICITATION NO. F49642-72-B 0485, ISSUED BY THE WASHINGTON AREA PROCUREMENT CENTER (WAPC), FOR GARBAGE AND REFUSE COLLECTION SERVICES AT ANDREWS AIR FORCE BASE AND SEVERAL OTHER LOCATIONS.

AMENDMENT M05 OF THE INVITATION FOR BIDS ADDED SEVERAL ITEMS TO SECTION "C" ("INSTRUCTIONS, CONDITIONS AND NOTICES TO OFFERORS"), I.E., THAT THE LOW BIDDER WOULD BE REQUIRED TO SUBMIT AN ITEMIZED LIST OF EQUIPMENT TO BE USED IN PERFORMANCE OF THE CONTRACT, THAT IT MIGHT BE THE SUBJECT OF A PREAWARD SURVEY, AND ALSO THAT IT WOULD BE REQUIRED PRIOR TO AWARD TO SUBMIT A LIST OF JOBS OF SIMILAR MAGNITUDE PERFORMED WITHIN THE LAST 3 YEARS.

BIDS WERE OPENED ON JUNE 19, 1972. BIC AND SHAYNE SUBMITTED BIDS ON SPECIFICATION "B" WHICH CALLED FOR REFUSE COLLECTION ON ANDREWS AIR FORCE BASE AND FIVE OFF-BASE SITES. BIC WAS THE LOW BIDDER. BY LETTER DATED JUNE 20, 1972, SHAYNE PROTESTED TO WAPC THAT BIC WAS NOT A RESPONSIBLE OR QUALFIED BIDDER UNDER THE TERMS AND CONDITIONS OF THE SOLICITATION, ALLEGING THAT BIC COULD NOT DELIVER AND INSTALL THE REQUIRED EQUIPMENT BY JULY 1, 1972, AND THAT BIC'S EXPERIENCE DID NOT INCLUDE JOBS OF SIMILAR MAGNITUDE.

BIC SUBMITTED A REPORT TO THE CONTRACTING OFFICER SPECIFYING ITS EQUIPMENT AND GIVING A LIST OF JOBS WHICH IT HAD PERFORMED IN THE PAST. THE CONTRACTING OFFICER INVESTIGATED THE LOW BIDDER AND FOUND THAT ALTHOUGH IT HAD NEVER PERFORMED A CONTRACT OF SIMILAR MAGNITUDE, ITS PERFORMANCE ON PAST JOBS HAD BEEN MORE THAN SATISFACTORY. IN ADDITION, THE CONTRACTING OFFICER INVESTIGATED THE EQUIPMENT IN BIC'S POSSESSION AND ON ORDER AND FOUND THAT BIC HAD AN AGREEMENT WHEREBY THE JOHNSON-SPEAKE COMPANY WOULD SUPPLY EXTRA DISPOSAL CANS AND TRUCKS UNTIL THE DELIVERY OF ADDITIONAL EQUIPMENT ON ORDER OR IN EMERGENCY CONDITIONS. THE CONTRACTING OFFICER ALSO MADE INQUIRIES OF BIC'S BANK WHICH REVEALED AN EXCELLENT CREDIT RATING. SINCE THE ABOVE INVESTIGATIONS DUPLICATED THOSE MADE BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT OFFICE IN BALTIMORE, THE CONTRACTING OFFICER HAS STATED THAT IT WAS AGREED, IN THE INTERESTS OF TIME, TO LIMIT THE PREAWARD SURVEY TO THE QUESTION OF FINANCIAL CAPABILITY. THE RESULTS OF THE SURVEY WERE FAVORABLE. BASED UPON HIS INVESTIGATIONS AND THE PREAWARD SURVEY, THE CONTRACTING OFFICER DETERMINED ON JUNE 26, 1972, THAT BIC WAS A RESPONSIVE AND RESPONSIBLE BIDDER AND AWARDED THE CONTRACT TO THAT COMPANY. ON THE SAME DAY, SHAYNE'S PROTEST WAS DENIED.

YOU ALLEGE THAT THE PROCURING ACTIVITY, KNOWING THAT BIC WAS NOT A RESPONSIBLE OR QUALIFIED BIDDER, ACQUIESCED IN AN ARRANGEMENT WHEREBY BIC WAS PERMITTED, IN EFFECT, TO ASSIGN OR SUBCONTRACT ITS LOW BID TO AN UNNAMED THIRD PARTY, WHO WOULD ACTUALLY PERFORM THE WORK. YOU REQUEST THAT WE HOLD THE AWARD TO BIC INVALID AND FIND THAT SHAYNE IS THE LOW RESPONSIBLE BIDDER.

YOUR PROTEST CHALLENGES BOTH BIC'S RESPONSIVENESS AND RESPONSIBILITY IN OTHER WORDS, THAT SINCE BIC DID NOT SHOW THAT IT POSSESSED SUFFICIENT EQUIPMENT AND PAST EXPERIENCE ON JOBS OF SIMILAR MAGNITUDE, IT NOT ONLY FAILED TO SUBMIT A BID CONFORMING TO THE TERMS AND CONDITIONS OF THE SOLICITATION, BUT ALSO IS LACKING IN THE ABILITY TO PERFORM AS REQUIRED BY THE CONTRACT. INITIALLY, AS REGARDS RESPONSIVENESS, WE NOTE THAT THE LANGUAGE IN THE AMENDMENT DOES NOT REQUIRE SUBMISSION OF DATA WITH EACH BID, BUT ONLY BY THE LOW BIDDER PRIOR TO AWARD. MOREOVER, WE HAVE HELD THAT EVEN WHERE SUBMISSION OF INFORMATION RELATING TO AVAILABLE EQUIPMENT AND PAST EXPERIENCE IS REQUIRED TO BE MADE WITH THE BID, FAILURE TO FURNISH SUCH DATA DOES NOT RENDER THE BID NONRESPONSIVE, SINCE SUCH MATTERS ARE CONCERNED WITH THE CAPABILITY OF PERFORMING, OR RESPONSIBILITY, AND NOT WITH THE OBLIGATION TO PERFORM IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. SEE B-162418(1), NOVEMBER 1, 1967, AND CASES CITED THEREIN. THUS, IT IS APPARENT NOT ONLY FROM THE LANGUAGE OF THE AMENDMENT ITSELF, BUT ALSO FROM THE TYPE OF INFORMATION REQUESTED, THAT THE DATA REQUIREMENT INVOLVES THE QUESTION OF RESPONSIBILITY. ACCORDINGLY, YOUR CONTENTION THAT BIC'S BID WAS NONRESPONSIVE IS WITHOUT MERIT.

THE WELL-ESTABLISHED RULE OF THIS OFFICE REGARDING REVIEW OF RESPONSIBILITY DETERMINATIONS IS THAT IT IS NEITHER OUR PROVINCE NOR OUR INTENTION TO DETERMINE THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR AS THIS IS A QUESTION OF FACT PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER CONCERNED. 45 COMP. GEN. 4 (1965); 43 ID. 257 (1963); 38 ID. 131 (1958); 37 ID. 430 (1957). IN THESE AND OTHER DECISIONS, WE HAVE TAKEN THE POSITION THAT THE DETERMINATION OF RESPONSIBILITY 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. IT IS, HOWEVER, THE PROVINCE AND FUNCTION OF OUR OFFICE TO REVIEW THE RECORD BEFORE US TO DETERMINE IF IT REASONABLY SUPPORTS THE CONTRACTING OFFICER'S FINDING. 45 COMP. GEN., SUPRA. AFTER A REVIEW OF THE RECORD IN THIS CASE, WE FIND NO CONVINCING EVIDENCE THAT THE CONTRACTING OFFICER'S DETERMINATION WAS ARBITRARY, CAPRICIOUS, OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE.

WITH REGARD TO YOUR ALLEGATION THAT BIC SUBCONTRACTED THE CONTRACT, TO THE EXTENT THAT BIC ENTERED INTO CONTRACTS WITH OTHER COMPANIES BEFORE AWARD TO SUPPLY EQUIPMENT TO BE USED IN PERFORMANCE OF THIS CONTRACT, SUCH MATTERS FALL WITHIN THE AREA OF RESPONSIBILITY, AN ISSUE WHICH WAS SATISFACTORILY RESOLVED IN BIC'S FAVOR. MOREOVER, IF BIC IS NOT SATISFACTORILY PERFORMING THE CONTRACT NOW OR SUBSEQUENTLY FAILS IN THAT REGARD DURING THE TERM OF THE CONTRACT, THAT WOULD NOT VITIATE THE ORIGINAL DETERMINATION OF RESPONSIBILITY AND AFFECT THE VALIDITY OF THE AWARD. THAT WOULD BE A MATTER FOR CONSIDERATION BY THE CONTRACTING OFFICER IN THE ADMINISTRATION OF THE CONTRACT RATHER THAN BY OUR OFFICE. THEREFORE, WE DO NOT INTEND TO DEVELOP THAT ASPECT FURTHER.

IN VIEW OF THE ABOVE CONSIDERATIONS, THE PROTEST IS DENIED.