B-198985, JUL 3, 1980

B-198985, JUL 3, 1980

DIGEST: 1. PROTEST QUESTIONING RESPONSIVENESS OF LOW BID IS SUMMARILY DENIED SINCE PROTESTER HAS PRESENTED NO EVIDENCE THAT LOW BIDDER TOOK EXCEPTION TO ANY SOLICITATION REQUIREMENTS. 2. PROTEST CONCERNING LOW RESPONSIVE BIDDER'S ABILITY TO MEET CONTRACTUAL REQUIREMENTS AT BID PRICE IS NOT FOR CONSIDERATION AS GAO WILL NOT REVIEW AFFIRMATIVE DETERMINATION OF RESPONSIBILITY EXCEPT IN CIRCUMSTANCES NOT APPLICABLE HERE.

Z.A.N. COMPANY:

Z.A.N. COMPANY PROTESTS THE PROPOSED AWARD OF A CONTRACT TO GUYTRONICS, INC. (GUYTRONICS), UNDER SOLICITATION NO. DAAB07-80-B-0113, ISSUED BY THE UNITED STATES ARMY COMMUNICATIONS AND ELECTRONICS MATERIEL READINESS COMMAND, FORT MONMOUTH, NEW JERSEY. Z.A.N. COMPANY ALLEGES THAT THE GUYTRONICS BID IS NONRESPONSIVE AND THAT GUYTRONICS IS NONRESPONSIBLE.

WE REQUESTED ADDITIONAL DETAILS FROM THE PROTESTER ON JUNE 5, 1980. RESPONSE, Z.A.N. COMPANY MERELY RESTATED ITS ORIGINAL BASES FOR PROTEST BUT DID NOT PROVIDE US WITH ANY MORE DETAIL. THE ONLY SUPPORT OFFERED BY Z.A.N. COMPANY FOR ITS ALLEGATIONS IS THE FACT THAT GUYTRONICS' BID WAS SUBSTANTIALLY LOWER THAN Z.A.N. COMPANY'S BID. APPARENTLY, Z.A.N. COMPANY BELIEVES THAT GUYTRONICS DOES NOT INTEND TO MEET THE SOLICITATION REQUIREMENTS AS STATED OR THAT GUYTRONICS WILL NOT BE ABLE TO PRODUCE THE REQUESTED ITEMS AT SUCH A LOW PRICE.

THIS CASE IS ONE IN WHICH IT IS CLEAR FROM THE PROTESTER'S INITIAL SUBMISSION THAT THE PROTEST IS WITHOUT LEGAL MERIT, AND WE WILL DECIDE THE MATTER ON THE BASIS OF THIS SUBMISSION WITHOUT REQUESTING AN AGENCY REPORT. SEE E.G. FIRE & TECHNICAL EQUIPMENT CORP., B-192408, AUGUST 4, 1978, 78-2 CPD 91.

Z.A.N. COMPANY PRESENTS NO EVIDENCE THAT GUYTRONICS' BID ACTUALLY INDICATES THAT THE FIRM HAS TAKEN EXCEPTION TO ANY OF THE SOLICITATION'S REQUIREMENTS. THE BID THEREFORE MUST BE CONSIDERED "RESPONSIVE," I.E., IT REPRESENTS AN OFFER TO PERFORM THE EXACT THING CALLED FOR IN THE SOLICITATION. INDUSTRIAL MAINTENANCE SERVICES, INC., B-195216, JUNE 29, 1979, 79-1 CPD 476. THEREFORE, THE PROTEST IS DENIED ON THIS POINT.

WHETHER GUYTRONICS HAS THE ABILITY TO PERFORM THE CONTRACT AT ITS BID PRICE IS A MATTER OF THE FIRM'S RESPONSIBILITY. WE HAVE BEEN INFORMALLY ADVISED BY THE ARMY THAT GUYTRONICS HAS BEEN DETERMINED TO BE A RESPONSIBLE FIRM. OUR OFFICE DOES NOT REVIEW PROTESTS AGAINST AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY UNLESS EITHER FRAUD ON THE PART OF PROCURING OFFICIALS IS ALLEGED, OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. MEYER INDUSTRIES, INC., B-192128, JULY 21, 1978, 78-2 CPD 60. NEITHER EXCEPTION IS APPLICABLE HERE.

ACCORDINGLY, ACCEPTANCE BY THE ARMY OF GUYTRONICS' BID WOULD EFFECTIVELY BIND THE FIRM TO PERFORM IN ACCORDANCE WITH THE INVITATION'S REQUIREMENTS AT THE CONTRACT PRICES. EDW. KOCHARIAN & COMPANY, INC., 58 COMP.GEN. 214 (1979), 79-1 CPD 20. WHETHER OR NOT GUYTRONICS SUPPLIES ITEMS CONFORMING TO THE CONTRACT REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION AND IS NOT RELEVANT TO THE PROPRIETY OF THE AWARD. THE NEDLOG COMPANY, B-195963, JANUARY 10, 1980, 80-1 CPD 31.

THE PROTEST IS SUMMARILY DENIED IN PART AND DISMISSED IN PART.