B-217588, JAN 24, 1985, 85-1 CPD 99

B-217588, JAN 24, 1985, 85-1 CPD 99

CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO - AFFIRMATIVE FINDING ACCEPTED DIGEST: 1. ALLEGATION THAT AWARDEE LACKS INTEGRITY CONSTITUTES A PROTEST AGAINST AN AFFIRMATIVE DETERMINATION RESPONSIBILITY THAT GAO WILL NOT REVIEW IN THE ABSENCE OF A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF THE CONTRACTING OFFICER OR A FAILURE TO APPLY DEFINITIVE CRITERIA OF RESPONSIBILITY. CONTRACTS - PROTESTS - INTERESTED PARTY REQUIREMENT - TRADE ASSOCIATIONS, ETC. 2. A TRADE ASSOCIATION THAT HAS FILED A PROTEST ON BEHALF OF ITS MEMBERS IS NOT AN INTERESTED PARTY UNDER GAO BID PROTEST PROCEDURES WHERE NO MEMBER OF THE TRADE ASSOCIATION HAS A DIRECT OR SUBSTANTIAL INTEREST IN THE PROCUREMENT.

NORTHWEST FOREST WORKERS ASSOCIATION:

THE NORTHWEST FOREST WORKERS ASSOCIATION PROTESTS THE AWARD OF A CONTRACT TO TEPA JALISCO, INC. UNDER INVITATION FOR BIDS NO. OR910-IFB3 13, ISSUED BY BUREAU OF LAND MANAGEMENT (BLM), DEPARTMENT OF THE INTERIOR, FOR TREE PLANTING IN COOS BAY, OREGON.

WE DISMISS THE PROTEST.

THE PROTESTER, A TRADE ASSOCIATION REPRESENTING WORKER COOPERATIVES, SEVERAL OF WHICH SUBMITTED BIDS IN RESPONSE TO THE SOLICITATION, CONTENDS THAT THE AWARDEE DOES NOT HAVE A SATISFACTORY RECORD OF BUSINESS INTEGRITY AND ETHICS, CITING A 1974 CRIMINAL CONVICTION OF ITS PRESIDENT, A 1983 PENALTY FOR VIOLATION OF STATE LABOR LAW, AND OTHER CHARGES. THE WORKERS ASSOCIATION ALSO ALLEGES THAT TEPA JALISCO'S PERFORMANCE ON A CURRENT CONTRACT WITH THE BLM IS SERIOUSLY DEFICIENT.

WE WILL NOT CONSIDER THESE CONTENTIONS. IN ORDER TO HAVE A PROTEST CONSIDERED BY OUR OFFICE, A PARTY MUST BE "INTERESTED" UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.1(A) (1984). IN DETERMINING WHETHER A PARTY IS SUFFICIENTLY INTERESTED, OUR OFFICE EXAMINES THE PARTY'S STATUS IN RELATION TO THE PROCUREMENT AND THE NATURE OF THE ISSUES INVOLVED. THERM-AIR MFG. CO., INC., 59 COMP.GEN. 255 (1980), 80-1 CPD PARA. 119. DETERMINING WHETHER A TRADE ASSOCIATION QUALIFIES AS AN INTERESTED PARTY, WE FOCUS UPON THE INTEREST ITS CONSTITUENT MEMBERS MAY HAVE IN THE PROCUREMENT. SEE ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS, B-199548, SEPT. 15, 1980, 80-2 CPD PARA. 196, REV'D ON OTHER GROUNDS, B-199548.2, AUG. 13, 1982, 82-2 CPD PARA. 128. HERE, THE WORKERS ASSOCIATION DOES NOT ASSERT THAT ANY OF ITS MEMBERS IS THE SECOND OR THIRD LOW BIDDER, SO AS TO BE IN LINE FOR AWARD IF WE WERE TO SUSTAIN THE PROTEST. HENCE, WE MUST CONCLUDE THAT NO INDIVIDUAL MEMBER OF THE TRADE ASSOCIATION ITSELF HAS THE REQUISITE DIRECT AND SUBSTANTIAL INTEREST NECESSARY TO MAINTAIN A PROTEST. SEE INTERNATIONAL BUSINESS INVESTMENTS, B-202164.2, JUNE 8, 1981, 81-1 CPD PARA. 459. IF NONE OF THE MEMBERS OF A TRADE ASSOCIATION IS AN INTERESTED PARTY, THE TRADE ASSOCIATION ITSELF CANNOT BE CONSIDERED AN INTERESTED PARTY. COMMITTEE OF DOMESTIC STEEL WIRE ROPE & SPECIALTY CABLE MANUFACTURERS, B-208801, SEPT. 15, 1982, 82-2 CPD PARA. 231.

MOREOVER, THE PROTESTER'S ALLEGATION THAT TEPA JALISCO LACKS BUSINESS INTEGRITY AND ETHICS CONSTITUTES A CHALLENGE TO AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WHICH OUR OFFICE WILL NOT REVIEW IN THE ABSENCE OF A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS OR A FAILURE TO APPLY DEFINITIVE RESPONSIBILITY CRITERIA. JOHN C. HOLLAND ENTERPRISES, B-216250, SEPT. 24, 1984, 84-2 CPD PARA. 336. NEITHER EXCEPTION APPLIES HERE.

WE ALSO WILL NOT REVIEW THE ALLEGATION THAT TEPA JALISCO IS NOT ACTUALLY COMPLYING WITH ITS OBLIGATIONS DURING THE PERFORMANCE OF A CURRENT CONTRACT, SINCE THIS IS A MATTER OF CONTRACT ADMINISTRATION. OUR BID PROTEST PROCEDURES ARE RESERVED FOR CONSIDERING WHETHER AN AWARD OF A CONTRACT COMPLIES WITH STATUTORY, REGULATORY, AND OTHER LEGAL REQUIREMENTS, NOT WITH POSTAWARD PERFORMANCE. ASC MEDICAR SERVICE, INC., B-213724, DEC. 30, 1983, 84-1 CPD PARA. 45.

WE THEREFORE DISMISS THE PROTEST.