B-196267, OCT 22, 1979

B-196267, OCT 22, 1979

DIGEST: PROSPECTIVE AWARDEE'S ABILITY TO COMPLY WITH CONTRACT TERMS IS MATTER OF RESPONSIBILITY, AND GAO DOES NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY EXCEPT UNDER CIRCUMSTANCES NOT APPLICABLE HERE.

NATIONAL ORGANIZATION SERVICE, INC.:

NATIONAL ORGANIZATION SERVICE, INC. (NATIONAL), PROTESTS THE PROPOSED AWARD OF A CONTRACT TO MARKETING INTERNATIONAL, INC. (MARKETING) UNDER INVITATION FOR BIDS (IFB) NO. N00140-79-B-1538 ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA, FOR A SUBSCRIPTION SERVICE FOR NAVY FIELD PURCHASING ACTIVITIES. NATIONAL STATES THAT THE SOLICITATION REQUIRES THE CONTRACTOR TO ENTER SUBSCRIPTIONS WITH PUBLISHERS PROMPTLY UPON THE RECEIPT OF ORDERS FOR ANY OF THE PUBLICATIONS LISTED THEREIN. HOWEVER, NATIONAL HAS PROVIDED LETTERS FROM A NUMBER OF THE PUBLISHERS TO THE EFFECT THAT MARKETING IS NOT AUTHORIZED TO SELL THEIR PUBLICATIONS. ON THAT BASIS THE PROTESTER CONTENDS THAT MARKETING "WOULD BE FORCED TO 'BOOTLEG' ORDERS OR UTILIZE A 'MIDDLEMAN' TO OBTAIN THE NECESSARY SUBSCRIPTIONS," AND COULD NOT THEREBY SATISFACTORILY PERFORM THE CONTRACT.

NATIONAL'S PROTEST CONCERNS MARKETING'S RESPONSIBILITY, SEE BALDT, INCORPORATED, B-194358, APRIL 5, 1979, 79-1 CPD 240, AND THE NAVY HAS INFORMALLY ADVISED US THAT THE FIRM HAS BEEN FOUND RESPONSIBLE. WE DO NOT REVIEW PROTESTS AGAINST AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY UNLESS EITHER FRAUD IS ALLEGED ON THE PART OF PROCURING OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. CENTRAL METALS PRODUCTS, INCORPORATED, 54 COMP. GEN. 66 (1974), 74-2 CPD 64; YARDNEY ELECTRIC CORPORATION, 54 COMP.GEN. 509 (1974), 74-2 CPD 376. NEITHER EXCEPTION IS APPLICABLE HERE.

THIS PROTEST THEREFORE IS DISMISSED.