B-209915.2, JUN 8, 1983
Highlights
PRIOR DECISION DECLINING TO REVIEW AFFIRMATIVE DETERMINATION OF RESPONSIBILITY IS AFFIRMED. WE DISMISSED THE PROTEST BECAUSE IT CONSTITUTED A CHALLENGE TO AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WHICH WILL NOT BE REVIEWED BY OUR OFFICE IN THE ABSENCE OF A SHOWING THAT THE AGENCY ACTED FRAUDULENTLY OR IN BAD FAITH OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION HAVE NOT BEEN MET. NEITHER EXCEPTION WAS APPLICABLE. BETTENCOURT HAD AN INTEREST IN COTA AND WERE INVOLVED IN CRIMINAL JUDICIAL PROCEEDINGS. DEFINITIVE RESPONSIBILITY CRITERIA ARE SPECIFIC AND OBJECTIVE STANDARDS ESTABLISHED BY AN AGENCY FOR A PARTICULAR PROCUREMENT FOR THE MEASUREMENT OF A BIDDER'S ABILITY TO PERFORM THE CONTRACT.
B-209915.2, JUN 8, 1983
DIGEST: CONVICTION FOR CRIMINAL ACTS IN CONNECTION WITH PRIOR GOVERNMENT CONTRACTS OF AN INDIVIDUAL WHO HAS OR HAD AN INTEREST IN A BIDDING FIRM DETERMINED BY THE CONTRACTING OFFICER TO BE RESPONSIBLE DOES NOT, IN ITSELF, CONSTITUTE A FAILURE TO APPLY DEFINITIVE RESPONSIBILITY CRITERIA IN A SOLICITATION. PRIOR DECISION DECLINING TO REVIEW AFFIRMATIVE DETERMINATION OF RESPONSIBILITY IS AFFIRMED.
CARDINAL MOVING & STORAGE, INC. - RECONSIDERATION:
CARDINAL MOVING & STORAGE, INC. (CARDINAL), REQUESTS RECONSIDERATION OF OUR DECISION IN CARDINAL MOVING & STORAGE, INC., B-209915, DECEMBER 22, 1982, 82-1 CPD 2, IN WHICH WE DISMISSED CARDINAL'S PROTEST AGAINST AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF COTA TRANSFER AND STORAGE, INC. (COTA), UNDER INVITATION FOR BIDS (IFB) NO. N00228-82-B 8175 ISSUED BY THE DEPARTMENT OF THE NAVY.
WE AFFIRM OUR DECISION.
IN OUR DECISION, WE DISMISSED THE PROTEST BECAUSE IT CONSTITUTED A CHALLENGE TO AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WHICH WILL NOT BE REVIEWED BY OUR OFFICE IN THE ABSENCE OF A SHOWING THAT THE AGENCY ACTED FRAUDULENTLY OR IN BAD FAITH OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION HAVE NOT BEEN MET, AND NEITHER EXCEPTION WAS APPLICABLE. CARDINAL HAD ALLEGED ONLY THAT MR. AND MRS. BETTENCOURT HAD AN INTEREST IN COTA AND WERE INVOLVED IN CRIMINAL JUDICIAL PROCEEDINGS.
IN THE REQUEST FOR RECONSIDERATION, CARDINAL STATES THAT ELISEU BETTENCOURT PLEADED GUILTY IN THE CRIMINAL PROCEEDING TO CHARGES OF ILLEGAL WEIGHING PROCEDURES ON GOVERNMENT CONTRACT MOVES AND CONTENDS THAT:
"THIS WOULD SEEM TO PROVIDE THE BASIS NEEDED TO INDICATE THE FAILURE OF THE CONTRACTOR TO SHOW DEFINITIVE RESPONSIBILITY, ESPECIALLY SINCE THE ILLEGAL PRACTICES HAD BEEN GOING ON FOR MANY MONTHS, AND IN FACT, FOR SEVERAL YEARS."
CARDINAL HAS NOT ALLEGED ANY ACTS OF THE CONTRACTING OFFICER WHICH CONSTITUTE OR AMOUNT TO EITHER FRAUD OR BAD FAITH. DEFINITIVE RESPONSIBILITY CRITERIA ARE SPECIFIC AND OBJECTIVE STANDARDS ESTABLISHED BY AN AGENCY FOR A PARTICULAR PROCUREMENT FOR THE MEASUREMENT OF A BIDDER'S ABILITY TO PERFORM THE CONTRACT. THESE SPECIAL STANDARDS OF RESPONSIBILITY LIMIT THE CLASS OF BIDDERS TO THOSE MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE QUALIFICATIONS NECESSARY FOR ADEQUATE CONTRACT PERFORMANCE, SUCH AS SPECIFIC EXPERIENCE REQUIREMENTS. A.R.&S.ENTERPRISES, INC., B-201924, JULY 7, 1981, 81-2 CPD 14. CARDINAL HAS NOT ALLEGED THE EXISTENCE OF ANY SUCH CRITERIA IN THIS IFB. THE CRIMINAL ACTS OF AN INDIVIDUAL WHO HAS OR HAD AN INTEREST IN A BIDDING FIRM DO NOT, IN THEMSELVES, INVOLVE DEFINITIVE RESPONSIBILITY CRITERIA.
IN ANY EVENT, WE ARE ADVISED BY NAVY THAT THE CONTRACT WAS AWARDED ON NOVEMBER 3, 1982, AND THE PLEA OF GUILTY TO CRIMINAL ACTIVITIES IN CONNECTION WITH PRIOR CONTRACTS WITH THE GOVERNMENT WAS NOT ENTERED UNTIL APRIL 1, 1983, WELL AFTER THE AFFIRMATIVE RESPONSIBILITY DETERMINATION AND AWARD TO COTA.
SINCE NO ERROR OF FACT OR LAW HAS BEEN SHOWN, OUR DECISION IS AFFIRMED.