B-172252, APR 22, 1971

B-172252, APR 22, 1971

BID PROTEST - BIDDER RESPONSIBILITY - FINANCIAL CAPABILITY DECISION DENYING PROTEST AGAINST PARTIAL AWARD OF A CONTRACT TO EVERGREEN HELICOPTER SERVICE, INC., BY THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR. MATTERS OF BIDDER'S RESPONSIBILITY MAY BE DETERMINED AFTER BID OPENING AND IS PRIMARILY WITHIN THE DISCRETION OF THE CONTRACTING OFFICER. WHILE SUCCESSFUL BIDDER'S COMPLIANCE WITH STATE LAWS CONCERNING THE DOING OF BUSINESS MAY BE ONE FACTOR FOR CONSIDERATION IN DETERMINING RESPONSIBILITY, THE COMP. GEN. CANNOT SAY THAT A FINDING OF NONCONFORMANCE WOULD REQUIRE A FINDING OF NONRESPONSIBILITY. FURTHER, THE RECORD SUPPORTS THE CONTRACTING OFFICER'S DETERMINATION THAT EVERGREEN IS FINANCIALLY RESPONSIBLE.

TO H. RUSSEL HOLLAND AND RISHER M. THORNTON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 19, 1971, PROTESTING ON BEHALF OF ANCHORAGE HELICOPTER SERVICE, INCORPORATED, AGAINST THE PROPOSED AWARD OF A CONTRACT TO EVERGREEN HELICOPTERS, INCORPORATED, BY THE BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR, PURSUANT TO SOLICITATION NO. P-1-146.

BY LETTER DATED MARCH 15, 1971, THE COGNIZANT CONTRACTING OFFICER REQUESTED OUR OPINION AS TO THE PROPER AWARD OR AWARDS TO BE MADE UNDER THE SOLICITATION. ON MARCH 23, 1971, WE ADVISED HIM THAT ON THE RECORD BEFORE US IT APPEARED THAT AWARDS SHOULD BE MADE ON THE BASIS OF THE LOW SEPARATE BIDS, INCLUDING EVERGREEN'S BIDS ON ITEMS 1, 2, 3 AND 4 AND ANCHORAGE'S BID ON ITEM 7, RATHER THAN ON EVERGREEN'S "ALL OR NONE" BID. IN REACHING THIS CONCLUSION, WE DENIED EVERGREEN'S PROTEST TO THE CONTRACTING OFFICER THAT ANCHORAGE'S BID WAS NONRESPONSIVE TO SECTION D OF THE SOLICITATION, CONCERNING PROOF OF OWNERSHIP OR AVAILABILITY OF HELICOPTERS. IN THIS CONNECTION, WE POINTED OUT THAT SINCE SECTION D CONCERNED BIDDER RESPONSIBILITY RATHER THAN BID RESPONSIVENESS, ANCHORAGE'S FAILURE TO COMPLY LITERALLY THEREWITH WAS NOT A PROPER BASIS FOR REJECTION, CITING 49 COMP. GEN. 553, 556 (1970).

ONE BASIS FOR ANCHORAGE'S PROTEST IS THAT EVERGREEN'S BID ON ITEM 2 WAS NONRESPONSIVE BECAUSE THE FEDERAL AVIATION AGENCY CERTIFICATE SUBMITTED WITH ITS BID DESCRIBED THE HELICOPTER AS A 205A RATHER THAN 205A1 AS REQUIRED.

SUBSEQUENT INVESTIGATION BY THE CONTRACTING OFFICER DISCLOSED THAT THE FAA CERTIFICATE WAS IN ERROR AND THE HELICOPTER IS IN FACT A 205A1. SINCE THIS IS A MATTER RELATED TO RESPONSIBILITY AS OPPOSED TO RESPONSIVENESS, THE CONTRACTING OFFICER'S INVESTIGATION AND DETERMINATION OF EVERGREEN'S ABILITY TO COMPLY AFTER BID OPENING WAS PROPER. 49 COMP. GEN. 553, 556 (1970), SUPRA.

ANCHORAGE ALSO CONTENDS THAT EVERGREEN IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR BECAUSE IT DOES NOT HAVE A RECORD OF INTEGRITY IN BUSINESS. THIS CONTENTION IS BASED ON THE CLAIM THAT EVERGREEN HAS BEEN DOING BUSINESS IN ALASKA WITHOUT HAVING A BUSINESS LICENSE AND WITHOUT COMPLYING WITH THE STATE LAWS CONCERNING OPERATIONS BY FOREIGN CORPORATIONS.

THE CONTRACTING OFFICER REPORTS THAT IN VIEW OF HIS KNOWLEDGE OF EVERGREEN'S PERFORMANCE ON PREVIOUS CONTRACTS HE IS SATISFIED AS TO ITS RESPONSIBILITY, INCLUDING BUSINESS INTEGRITY, WITHIN THE MEANING OF SECTION 1-1.310-5 OF THE FEDERAL PROCUREMENT REGULATIONS. WE HAVE CONSISTENTLY HELD THAT THE QUESTION OF A BIDDER'S RESPONSIBILITY IS A MATTER PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER. 45 COMP. GEN. 4 (1965). IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION, WE WOULD NOT BE JUSTIFIED IN SUBSTITUTING OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER. 43 COMP. GEN. 257 (1963). ALTHOUGH THE QUESTION OF EVERGREEN'S COMPLIANCE WITH STATE LAWS CONCERNING THE DOING OF BUSINESS MAY BE ONE FACTOR FOR CONSIDERATION IN DETERMINING ITS RESPONSIBILITY, WE CANNOT SAY THAT A FINDING OF NONCONFORMANCE WOULD REQUIRE A NEGATIVE DETERMINATION WITHOUT CONSIDERATION OF THE PARTICULAR CIRCUMSTANCES AND CONSIDERATION OF THE OTHER FACTORS BEARING ON THE QUESTION OF RESPONSIBILITY.

AS A FINAL MATTER, YOU RAISE A QUESTION AS TO WHETHER THE CONTRACTING OFFICER VERIFIED EVERGREEN'S FINANCIAL RESPONSIBILITY. THE CONTRACTING OFFICER REPORTS THAT THE FIRST NATIONAL BANK OF MCMINNVILLE WAS CONTACTED ON THE QUESTION OF FINANCIAL RESPONSIBILITY. THE BANK REPORTED THAT IT HAD COMMITTED $575,000 TO EVERGREEN TO GUARANTEE OPERATIONS ON ANY CONTRACT AWARDED. THEREFORE, THE CONTRACTING OFFICER DETERMINED EVERGREEN FINANCIALLY RESPONSIBLE.

ACCORDINGLY, THERE IS NO BASIS UPON WHICH OUR OFFICE MAY PROPERLY OBJECT TO AN AWARD TO EVERGREEN.