B-132311, JAN. 3, 1958

B-132311, JAN. 3, 1958

TO NEW BRUNSWICK WINDOW CLEANING CO.:

REFERENCE IS MADE TO LETTER DATED JUNE 20, 1957, AND SUBSEQUENT CORRESPONDENCE FROM YOUR ATTORNEY PROTESTING THE AWARD OF CONTRACT NO. DA 28-043-SC-1898, DATED JUNE 18, 1957, FOR THE PERFORMANCE OF CUSTODIAL SERVICES AT FORT MONMOUTH, NEW JERSEY, MADE TO ASBURY PARK WINDOW CLEANING CO. AS THE LOWEST RESPONSIBLE BIDDER.

ALTHOUGH YOU WERE THE LOWEST BIDDER, THE CONTRACTING OFFICER DETERMINED THAT YOU WERE NOT RESPONSIBLE FOR SEVEN REASONS.

THE FIRST REASON ASSIGNED BY THE CONTRACTING OFFICER FOR DISQUALIFYING YOU WAS THAT DURING FISCAL YEAR 1956 AN OFFICER OF YOUR FIRM ADMITTEDLY BRIBED AND GAVE GRATUITIES AND FAVORS TO GOVERNMENT PERSONNEL INVOLVED IN THE INSPECTION AND PERFORMANCE OF THE CONTRACT THEN BEING EXECUTED. YOUR ATTORNEY HAS STATED THAT NO OFFICER OF YOUR FIRM ADMITTED THE COMMISSION OF ACTS OF BRIBERY, ALTHOUGH THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT REGULATIONS RELATING TO GRATUITIES ADMITTEDLY WERE VIOLATED. HE HAS STATED FURTHER THAT THE ACCUSED OFFICER OF YOUR FIRM ACTUALLY WAS INSTRUMENTAL IN EXPOSING THE GRATUITY SITUATION AND THE GOVERNMENT EMPLOYEE WHO WAS THE OBJECT OF THE GIFTS, THAT THE OFFICER APPEARED AS A WITNESS AGAINST THE GOVERNMENT EMPLOYEE BEFORE A FEDERAL GRAND JURY, THAT THE OFFICER WAS NEVER UNDER FEDERAL GRAND JURY CONSIDERATION FOR A CRIMINAL OFFENSE IN CONNECTION WITH THE MATTER, AND THAT THE DEPARTMENT OF JUSTICE ACCEPTED FROM YOU AN OFFER IN COMPROMISE TO SETTLE THE GRATUITY VIOLATION. ACCORDING TO THE REPORT PREPARED BY THE DEPARTMENT OF THE ARMY, THE DEPARTMENT OF JUSTICE HAS CLOSED ITS FILE ON BOTH THE CIVIL AND CRIMINAL ASPECTS OF THE CASE.

THE SECOND GROUND FOR DISQUALIFYING YOU WAS THAT IN 1955 OFFICERS OF YOUR FIRM ALLEGEDLY INTIMIDATED OTHER PROSPECTIVE BIDDERS TO DISCOURAGE THEM FROM SUBMITTING BIDS. THIS SPECIFICATION IS BASED ON THE STATEMENT OF A BIDDER WHO ALLEGED THAT OFFICERS OF YOUR FIRM THREATENED HIM WITH FINANCIAL RUIN AND BODILY HARM UNLESS HE WITHDRAW HIS BID FROM COMPETITION. AS A RESULT OF YOUR ALLEGED THREATS HE WITHDREW HIS BID AND YOU WERE AWARDED THE CONTRACT AS NEXT LOW BIDDER. AN INVESTIGATION WAS MADE OF THE COMPLAINT, BUT APPARENTLY AS A RESULT OF THE FINDINGS NO OTHER ACTION WAS DEEMED APPROPRIATE.

THE THIRD BASIS FOR DISQUALIFYING YOU WAS THAT ON JANUARY 10, 1956, YOU WERE PLACED ON THE SUSPENDED BIDDERS LIST BECAUSE OF THE AFORESAID VIOLATIONS. HOWEVER, ACCORDING TO THE ADMINISTRATIVE REPORT, ON AUGUST 13, 1956, YOUR NAME WAS REMOVED FROM THE LIST, AND THE OFFICE OF THE JUDGE ADVOCATE GENERAL RECOMMENDED THAT NORMAL BUSINESS RELATIONS BE RESUMED WITH YOUR COMPANY.

THE FOURTH REASON ASSIGNED FOR DISQUALIFYING YOU WAS THAT IN FISCAL YEARS 1954, 1955 AND 1956, YOUR PERFORMANCE OF GOVERNMENT CONTRACTS WAS SUBSTANDARD AND DEFICIENT. HOWEVER, IN FISCAL YEAR 1956 YOU WERE APPARENTLY ONLY ONE PERCENT DEFICIENT IN PERFORMANCE. FURTHERMORE, YOUR ATTORNEY HAS INDICATED THAT CURRENTLY YOU ARE PERFORMING CUSTODIAL SERVICE TO THE GOVERNMENT UNDER THREE OTHER CONTRACTS AND HE HAS PRESENTED TO OUR OFFICE LETTERS OF COMMENDATION TO YOU FROM TWO OTHER ARMY INSTALLATIONS FOR SERVICES RENDERED TO THEM IN 1956 AND 1957. IT IS A RULE OF LONG STANDING THAT UNSATISFACTORY SERVICE UNDER PRIOR GOVERNMENT CONTRACTS IS NOT A VALID REASON TO REFUSE TO GIVE CONSIDERATION TO SUBSEQUENT BIDS. COMP. GEN. 313.

THE FIFTH GROUND FOR REJECTION OF YOUR BID IS THAT ONE OF THE OFFICIALS RESPONSIBLE FOR THE IMPROPER PRACTICES REFERRED TO IN THE FIRST TWO SPECIFICATIONS IS STILL A PARTNER IN YOUR FIRM. THE FACT THAT AN OFFICIAL WHO ALLEGEDLY COMMITTED A VIOLATION IS STILL WITH THE FIRM IS NOT ITSELF SUFFICIENT JUSTIFICATION TO HOLD THAT THE BIDDER IS NOT RESPONSIBLE.

THE SIXTH GROUND FOR REJECTION OF YOUR BID WAS THAT INDIVIDUALS WITH THE BACKGROUND DESCRIBED IN THE FIRST TWO CHARGES SHOULD NOT BE ALLOWED TO PERFORM CUSTODIAL SERVICES IN THE RESTRICTED AREA COVERED BY THE IMMEDIATE CONTRACT. NO EVIDENCE HAS BEEN PRESENTED THAT ANYONE ASSOCIATED WITH YOUR FIRM IS A SECURITY RISK, AND THIS CHARGE APPEARS TO ADD NOTHING TO THE FIRST TWO.

THE SEVENTH REASON ASSIGNED FOR DISQUALIFYING YOU WAS THAT IN CONNECTION WITH A CONTRACT AWARDED AT FORT MONMOUTH IN 1956 OUR OFFICE, BY DECISION B -128504, DATED AUGUST 21, 1956, SUSTAINED AN ADMINISTRATIVE DETERMINATION THAT YOU WERE NOT RESPONSIBLE. THE RESPONSIBILITY OF A BIDDER IS TO BE DETERMINED AT THE TIME OF EACH AWARD. A PRIOR DETERMINATION OF NONRESPONSIBILITY IS NOT DETERMINATIVE OF A SUBSEQUENT QUESTION OF RESPONSIBILITY.

IN THE ADMINISTRATIVE REPORT FURNISHED TO OUR OFFICE, THE DEPUTY ASSISTANT SECRETARY (LOGISTICS) HAS RECOGNIZED THAT THE FACTS INDICATE A SUBSTANTIAL DISAGREEMENT ON THE QUESTION OF YOUR RESPONSIBILITY. IN OUR OPINION, YOUR ADMITTED VIOLATIONS HAVE NOT AFFECTED YOUR ABILITY, CAPACITY AND DEPENDABILITY TO PERFORM ANY CONTRACTS AWARDED TO YOU BY THE GOVERNMENT, AND THE OTHER CHARGES OF THE CONTRACTING OFFICER WOULD NOT PRECLUDE A CONCLUSION THAT YOU ARE RESPONSIBLE.

IN VIEW OF THE TIME THAT HAS ELAPSED SINCE THE AWARD TO ASBURY PARK WINDOW CLEANING CO., WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN REQUIRING CANCELLATION OF THE AWARDED CONTRACT. HOWEVER, THIS MATTER IS BEING BROUGHT TO THE ATTENTION OF THE SECRETARY OF THE ARMY FOR SUCH ACTION AS MAY BE NECESSARY TO INSURE THAT IN THE FUTURE AWARDS WILL BE MADE PROPERTY.