B-135439, MAY 14, 1958, 37 COMP. GEN. 756

B-135439, MAY 14, 1958, 37 COMP. GEN. 756

BIDDERS - QUALIFICATIONS - PRIOR UNSATISFACTORY SERVICE AN ADMINISTRATIVE DETERMINATION THAT A LOW BIDDER WAS NOT A RESPONSIBLE BIDDER ON THE BASIS OF SERIOUSLY DELINQUENT WORK UNDER A RECENT SIMILAR CONTRACT, WHICH WAS TERMINATED FOR DEFAULT, APPEARS PROPER UNDER 10 U.S.C. 2305 WHICH REQUIRES ONLY THAT CONTRACTS BE AWARDED TO THE LOWEST RESPONSIBLE BIDDER.

TO C. NORMAN BRYANT, MAY 14, 1958:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 7, 1958, PROTESTING AGAINST THE ACTION OF THE DISTRICT PUBLIC WORKS OFFICE, BUREAU OF YARDS AND DOCKS, IN REJECTING YOUR BID AND AWARDING CONTRACT NO. NBY-15189 TO THE NEXT LOWEST BIDDER, AMERICAN SHEET METAL CORPORATION, NORFOLK, VIRGINIA.

THE RECORD INDICATES THAT BY SPECIFICATION NO. 15189/57 AND ADDENDA 1 AND 2, THE DISTRICT PUBLIC WORKS OFFICE, BUREAU OF YARDS AND DOCKS, NORFOLK, VIRGINIA, REQUESTED BIDS--- TO BE OPENED FEBRUARY 4, 1958--- FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR ROOFING AND MISCELLANEOUS REPAIRS TO BUILDING CA-37 AT THE NAVAL BASE ( NAVAL RETRAINING COMMAND), NORFOLK, VIRGINIA. THE ABSTRACT OF BIDS SHOWS THAT IN RESPONSE TO THE INVITATION NINE BIDDERS SUBMITTED BIDS RANGING FROM $4,929 TO $8,949.

IT IS REPORTED THAT THE LOWEST BID, WHICH WAS SUBMITTED BY THE J. W. ALLISON ROOFING COMPANY, WAS REJECTED BECAUSE OF THE BIDDER'S FAILURE TO FURNISH BID SECURITY AND TO ACKNOWLEDGE THE TWO ADDENDA; AND THAT THE BUREAU OF YARDS AND DOCKS CONSIDERED IT TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO REJECT YOUR SECOND LOW BID ON THE BASIS OF A FINDING THAT YOU ARE NOT A RESPONSIBLE CONTRACTOR. THE RECORD INDICATES THAT THE ADMINISTRATIVE FINDING THAT YOU ARE NOT A RESPONSIBLE CONTRACTOR WAS BASED ON THE FACT THAT YOUR PERFORMANCE UNDER A PREVIOUS CONTRACT FOR SIMILAR WORK HAD BEEN SERIOUSLY DELINQUENT IN SEVERAL RESPECTS, NAMELY, CONTRACT NO. NOY-93556, WHICH WAS TERMINATED FOR DEFAULT ON DECEMBER 26, 1957.

GOVERNMENT CONTRACTS ENTERED INTO AFTER ADVERTISING FOR BIDS PURSUANT TO SECTION 3 OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, NOW SECTION 2305, TITLE 10, U.S.C. NEED NOT BE AWARDED TO BIDDERS NOT QUALIFIED TO PERFORM THE NECESSARY SERVICES. THAT SECTION REQUIRES THAT SUCH CONTRACTS BE AWARDED ONLY TO THE LOWEST RESPONSIBLE BIDDER IN EACH CASE. SPECIFICALLY PROVIDES THAT AWARDS SHALL BE MADE "TO THE RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION AND WILL BE THE MOST ADVANTAGEOUS TO THE UNITED STATES, PRICE AND OTHER FACTORS CONSIDERED.'

WHILE IT LONG HAS BEEN HELD THAT THE LOW BID OF A RESPONSIBLE BIDDER MAY NOT BE REJECTED MERELY BECAUSE SUCH BIDDER HAS DEFAULTED UNDER A PRIOR SIMILAR CONTRACT (15 COMP. GEN. 149), IT IS RECOGNIZED, OF COURSE, THAT THERE MAY BE CASES IN WHICH THE PRIOR DEFAULT OF A BIDDER PROPERLY MAY AND SHOULD BE CONSIDERED IN CONNECTION WITH THE AWARD OF FUTURE GOVERNMENT CONTRACTS AND THAT IN SOME SUCH CASES THE CIRCUMSTANCES MAY JUSTIFY THE ACTUAL REJECTION OF THE BID SUBMITTED BY A DEFAULTING BIDDER. 27 COMP. GEN. 621, 625.

THE DETERMINATION OF THE QUALIFICATIONS OF BIDDERS IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS FOR THE DETERMINATION, WE ARE NOT REQUIRED TO OBJECT TO THE ACTION TAKEN THEREON. SINCE THE DEPARTMENT OF THE NAVY HAS DETERMINED, AFTER CAREFUL AND FULL CONSIDERATION OF YOUR PERFORMANCE UNDER A RECENT SIMILAR CONTRACT, THAT YOU ARE NOT A RESPONSIBLE BIDDER AND SINCE THERE IS NO INDICATION OF BAD FAITH OR LACK OF FACTS IN SUPPORT OF SUCH DETERMINATION, NO BASIS APPEARS FOR OBJECTING TO THE ADMINISTRATIVE ACTION TAKEN IN THE MATTER.