B-164913, OCT. 25, 1968

B-164913: Oct 25, 1968

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RUBIN AND SHAPIRO: REFERENCE IS MADE TO YOUR PROTEST. THE SOLICITATION IS NO. 2PBO-RC-492. INCLUDED INFORMATION TO THE EFFECT THAT PLANS FOR AIR CONDITIONING THE ENTIRE WAREHOUSE AREA IN THE BUILDING HAD BEEN DEVELOPED DURING THE PREVIOUS YEAR BUT WERE BEING HELD IN ABEYANCE PENDING ERECTION BY THE OWNER-LESSOR OF AN ADDITION TO THE BUILDING IN ORDER TO PROVIDE MORE SPACE FOR IRS. IT WAS NECESSARY FOR IRS TO CONDUCT CERTAIN OFFICE OPERATIONS IN A PORTION OF THE WAREHOUSE SPACE. THAT IT HAD ALREADY BEEN NECESSARY IN 1968 TO AUTHORIZE EARLY DISMISSAL OF THE 200 EMPLOYEES WHO WERE HOUSED IN THE 15. THAT UNLESS REMEDIAL ACTION WAS TAKEN NO LATER THAN JUNE 21 THE PRODUCTION OF THE PARTICULAR OFFICE OPERATION WOULD CONTINUE TO SUFFER.

B-164913, OCT. 25, 1968

TO TECHNER, RUBIN AND SHAPIRO:

REFERENCE IS MADE TO YOUR PROTEST, BY LETTER OF JULY 23, 1968, AND SUBSEQUENT CORRESPONDENCE, IN BEHALF OF MARVIN E. KANZE, INC. (KANZE), AGAINST THE AWARD BY THE GENERAL SERVICES ADMINISTRATION (GSA) OF A CONTRACT TO DEVELOPMENT COMPANY OF AMERICA (DEVELOPMENT) FOR INSTALLATION, RENTAL, MAINTENANCE AND SERVICE OF AN AIR CONDITIONING PLANT IN A BUILDING WHICH DEVELOPMENT LEASES TO THE UNITED STATES FOR OCCUPANCY BY INTERNAL REVENUE SERVICE (IRS), PHILADELPHIA, PENNSYLVANIA. THE SOLICITATION IS NO. 2PBO-RC-492, DATED JUNE 20, 1968, AND ISSUED BY THE PUBLIC BUILDINGS SERVICE, BUILDINGS MANAGEMENT DIVISION, GSA, NEW YORK, NEW YORK.

ON JUNE 11, 1968, THE BUILDINGS MANAGEMENT DIVISION, PUBLIC BUILDINGS SERVICE, GSA, NEW YORK, RECEIVED A TELEPHONIC REQUEST FROM THE IRS REGIONAL OFFICE IN PHILADELPHIA FOR THE IMMEDIATE INSTALLATION OF TEMPORARY AIR CONDITIONING IN 15,000 SQUARE FEET OF WAREHOUSE SPACE IN THE IRS BUILDING. A TELEGRAM DATED JUNE 12 FROM IRS, CONFIRMING THE REQUEST, INCLUDED INFORMATION TO THE EFFECT THAT PLANS FOR AIR CONDITIONING THE ENTIRE WAREHOUSE AREA IN THE BUILDING HAD BEEN DEVELOPED DURING THE PREVIOUS YEAR BUT WERE BEING HELD IN ABEYANCE PENDING ERECTION BY THE OWNER-LESSOR OF AN ADDITION TO THE BUILDING IN ORDER TO PROVIDE MORE SPACE FOR IRS; THAT DUE TO THE FACT THAT THE EXPANDED FACILITIES WOULD NOT BE COMPLETED UNTIL MID 1970, IT WAS NECESSARY FOR IRS TO CONDUCT CERTAIN OFFICE OPERATIONS IN A PORTION OF THE WAREHOUSE SPACE; THAT IT HAD ALREADY BEEN NECESSARY IN 1968 TO AUTHORIZE EARLY DISMISSAL OF THE 200 EMPLOYEES WHO WERE HOUSED IN THE 15,000 SQUARE FEET OF WAREHOUSE SPACE INVOLVED; AND THAT UNLESS REMEDIAL ACTION WAS TAKEN NO LATER THAN JUNE 21 THE PRODUCTION OF THE PARTICULAR OFFICE OPERATION WOULD CONTINUE TO SUFFER.

ON JUNE 20, A FINDINGS AND DETERMINATION WAS ISSUED BY THE ACTING CHIEF OF THE BUILDINGS MANAGEMENT DIVISION AND THE PROCUREMENT (CONTRACTING) OFFICER OF THE GSA NEW YORK OFFICE AUTHORIZING THE NEGOTIATION OF THE PROCUREMENT PURSUANT TO THE PUBLIC EXIGENCY AUTHORITY IN SECTION 302 (C) (2) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 41 U.S.C. 252 (C) (2). THE DOCUMENT SET FORTH THE FACTS PERTAINING TO THE PROCUREMENT, STATED THAT ADVERTISING COULD NOT BE ACCOMPLISHED IN LESS THAN 25 DAYS, A DELAY WHICH THE PUBLIC EXIGENCY WOULD NOT PERMIT, AND INDICATED THAT AN INVITATION TO BID WOULD BE SUBMITTED TO SIX CONTRACTORS SOLICITING THE PROCUREMENT REQUIREMENT FOR THE BEST POSSIBLE PRICE TO THE GOVERNMENT.

THE SUBJECT SOLICITATION WAS ISSUED ON GSA FORM 1467, INVITATION, BID, AND AWARD (CONTRACT FOR BUILDING SERVICES), AND CALLED FOR BIDS TO BE SUBMITTED BY THE CLOSE OF BUSINESS ON JULY 5, 1968. ATTACHED TO, AND MADE PART OF, THE SOLICITATION WERE GSA FORM 1467A, BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (CONTRACT FOR BUILDING SERVICES), AND GSA FORM1468, GENERAL PROVISIONS (CONTRACT FOR BUILDING SERVICES). ALSO INCLUDED IN THE SOLICITATION WERE THREE PAGES OF SUPPLEMENTAL TERMS AND CONDITIONS, ARTICLE 16 OF WHICH WAS AN EXAMINATION OF RECORDS CLAUSE, SIMILAR TO THE CLAUSE SET FORTH IN FEDERAL PROCUREMENT REGULATION (FPR) 1-7.101-10 AND REQUIRED BY FPR 1-3.814-2 (E) TO BE USED IN NEGOTIATED CONTRACTS, PROVIDING FOR ACCESS TO THE RECORDS OF THE CONTRACTOR BY THE COMPTROLLER GENERAL OF THE UNITED STATES UNTIL THE EXPIRATION OF THREE YEARS AFTER FINAL PAYMENT UNDER THE CONTRACT AND INCLUSION OF A SIMILAR PROVISION IN ANY SUBCONTRACTS.

THE FACE SHEET OF GSA FORM 1467 INDICATED THAT BIDS WOULD BE OPENED AT THE CLOSE OF BUSINESS ON JULY 5, 1968. HOWEVER, IMMEDIATELY BELOW THIS INFORMATION, IN THE PRINTED NOTATION WHICH ADS,"SEALED BIDS FOR FURNISHING THE BUILDING SERVICES DESCRIBED IN THE ATTACHED CONTRACT REQUIREMENTS WILL BE RECEIVED IN THE BID RECEIVING OFFICE UNTIL THE DATE AND TIME SPECIFIED ABOVE AND AT THAT TIME PUBLICLY OPENED," THE LAST FIVE WORDS WERE BLOCKED OUT.

PAGE 7 OF THE SOLICITATION CARRIED A BIDDER QUALIFICATIONS PROVISION, WHICH REQUIRED, AMONG OTHER THINGS, THAT EACH BIDDER HAVE QUALIFIED SERVICE PERSONNEL LOCATED WITHIN ONE HOUR OF THE IRS BUILDING TO ANSWER EMERGENCY CALLS. PAGE 7 ALSO CARRIED A NOTATION MAKING PARAGRAPHS 5, 6 AND 7 OF GSA FORM 1467A, RELATING TO THE SUBMISSION OF BIDS, FAILURE TO BID, AND WITHDRAWAL OF BIDS, RESPECTIVELY, INAPPLICABLE TO THE PROCUREMENT.

THE SOLICITATION WAS NOT PUBLICLY ADVERTISED, BUT WAS DISTRIBUTED TO ONLY SIX FIRMS, FIVE OF WHICH, INCLUDING KANZE, WERE LOCATED IN OR NEAR PHILADELPHIA. THE SIXTH FIRM, BEE-KAY PARTNERSHIP, WAS ADDRESSED IN CARE OF DEVELOPMENT, WESTMINSTER, MARYLAND.

BY THE CLOSE OF BUSINESS JULY 5, ONLY KANZE HAD RESPONDED TO THE SOLICITATION. ACCORDINGLY, IN AN EFFORT TO ASCERTAIN WHETHER ANY OTHER OFFERS WOULD BE FORTHCOMING, THE PROCUREMENT OFFICE COMMUNICATED WITH EACH OF THE OTHER SOLICITED FIRMS ON JULY 8. FOUR OF THE FIRMS SIGNIFIED THAT THEY WERE NOT INTERESTED IN THE PROCUREMENT AND THEREFORE WOULD NOT SUBMIT OFFERS. DEVELOPMENT, THE TRADE NAME FOR SCOTT S. BAIR OF BEE-KAY PARTNERSHIP, ADVISED THAT ITS OFFER WAS IN THE MAIL, AND THE OFFER WAS IN FACT RECEIVED BY GSA ON JULY 9.

KANZE QUOTED A MONTHLY RENTAL OF $1,800 TO PROVIDE THE REQUESTED EQUIPMENT AND SERVICES FOR THE CONTRACT PERIOD OF ONE YEAR, AND DEVELOPMENT QUOTED A MONTHLY RENTAL OF $1,387.90, OR MORE THAN 20 PERCENT LESS, FOR THE SAME TERM. IN THE LIGHT OF THE SUBSTANTIAL PRICE DIFFERENTIAL BETWEEN THE TWO OFFERS, WHICH LED THE CONTRACTING OFFICER TO BELIEVE THAT THERE WAS NO REASONABLE PROSPECT THAT KANZE WOULD REDUCE ITS PRICE TO A LEVEL COMPETITIVE WITH DEVELOPMENT'S PRICE, AND IN VIEW OF THE URGENCY OF THE PROCUREMENT, AWARD WAS MADE TO DEVELOPMENT BY TELEGRAM DATED JULY 10, WHICH ALSO AUTHORIZED DEVELOPMENT TO PROCEED WITH THE WORK WITHOUT AWAITING FORMAL NOTICE OF AWARD. THE RECORD INDICATES THAT BY JULY 12 DEVELOPMENT HAD COMMENCED INSTALLATION OF THE EQUIPMENT AND BY JULY 15 THE EQUIPMENT WAS IN OPERATION. THE FORMAL CONTRACT DOCUMENT WAS ISSUED BY THE PROCUREMENT OFFICE ON JULY 24. THE RECORD FURTHER INDICATES THAT TO MEET THE EMERGENCY SERVICE REQUIREMENT DEVELOPMENT HAS ENGAGED A SUBCONTRACTOR WHO IS LOCATED WITHIN REASONABLE PROXIMITY OF THE IRS BUILDING.

BY WAY OF BACKGROUND INFORMATION, YOU STATE THAT THE HISTORY OF THE PROCUREMENT DATES BACK A CONSIDERABLE PERIOD OF TIME AND INVOLVES MANY TELEPHONE CONVERSATIONS BETWEEN GSA AND KANZE AND THAT THE SPECIFICATIONS INCLUDED IN THE SOLICITATION WERE DICTATED TO GSA PERSONNEL BY KANZE. THIS CONNECTION, YOU HAVE FURNISHED A COPY OF A LETTER DATED MAY 31, 1968, ADDRESSED TO THE IRS (NOT GSA) IN PHILADELPHIA, AND A COPY OF A LETTER DATED JUNE 3, 1968, ADDRESSED TO DEVELOPMENT, IN EACH OF WHICH KANZE OUTLINED A PROPOSAL FOR AIR CONDITIONING THE WAREHOUSE SPACE IN QUESTION AND QUOTED A RENTAL RATE OF $1,800 PER MONTH FOR A 12 - MONTH PERIOD.

THE SUBSTANCE OF YOUR PROTEST IS (1) THERE WAS NO INDICATION IN THE SOLICITATION THAT IT WAS OTHER THAN AN INVITATION FOR BIDS, INFORMATION THAT THE PROCUREMENT WAS NEGOTIATED BEING FIRST OBTAINED BY YOU IN A TELEPHONE CONVERSATION OF JULY 15 WITH THE CONTRACTING OFFICER; (2) WHETHER THE PROCUREMENT WAS ADVERTISED OR NEGOTIATED, THE LATE BID PROVISIONS IN THE SOLICITATION GOVERN AND PRECLUDE ACCEPTANCE OF DEVELOPMENT'S LATE OFFER, WHICH, YOU CONTEND, COULD NOT HAVE BEEN MAILED IN TIME TO REACH THE PROCURING ACTIVITY BY JULY 5; (3) IF THE PROCUREMENT WAS NEGOTIATED, KANZE SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO CHANGE ITS PRICE AFTER THE LATE OFFER BY DEVELOPMENT WAS RECEIVED; (4) IF URGENCY WAS A FACTOR, AWARD SHOULD HAVE BEEN MADE TO KANZE WITHOUT DELAY UNTIL RECEIPT OF THE DEVELOPMENT OFFER; AND (5) IN ANY EVENT, DEVELOPMENT WAS NOT RESPONSIVE TO THE SOLICITATION REQUIREMENT THAT THE SUCCESSFUL BIDDER HAVE AN ORGANIZATION CAPABLE OF DOING EMERGENCY WORK WITHIN ONE HOUR OF THE WORK SITE, A REQUIREMENT WHICH YOU CLAIM MAY NOT BE MET BY ENGAGING A QUALIFIED SUBCONTRACTOR. ACCORDINGLY, YOU CONTEND THAT THE AWARD VIOLATES THE INTEGRITY OF BASIC PROCUREMENT PRINCIPLES, AND YOU THEREFORE REQUEST THAT THE CONTRACT WITH DEVELOPMENT BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT.

GSA, WHOSE REPORT DATED SEPTEMBER 27, 1968, HAS BEEN MADE AVAILABLE TO YOU, STATES THAT GSA FORM 1467, ALTHOUGH DESIGNED PRIMARILY FOR PROCUREMENT BY FORMAL ADVERTISING, IS APPROPRIATE FOR USE IN NEGOTIATION. FURTHER, GSA VIEWS THE DELETION FROM THE FACE OF THE FORM OF THE WORDS RELATING TO PUBLIC OPENING OF BIDS AT THE CLOSING TIME DESIGNATED ON THE SAME PAGE AS AN INDICATION THAT A PUBLIC BID OPENING, AS REQUIRED FOR ADVERTISED PROCUREMENTS UNDER FEDERAL PROCUREMENT REGULATIONS (FPR) 1- 2.402, WAS NOT CONTEMPLATED.

GSA PROCUREMENT REGULATIONS (GSPR), PUBLISHED AT 41 CFR 5, WHICH IMPLEMENT THE FPR AND FORM A PART OF THE FPR SYSTEM, PROVIDE THAT GSA FORMS 1467, 1467A AND 1468, WHICH ARE USED IN FORMALLY ADVERTISED PUBLIC BUILDINGS SERVICE PROCUREMENTS, MAY ALSO BE USED FOR NEGOTIATED CONTRACTS IF APPROPRIATE CHANGES ARE MADE, ONE EXAMPLE BEING DELETION OF THE REFERENCE TO SEALED BIDS AND PUBLIC OPENING AND SUBSTITUTION OF APPROPRIATE WORDING. 41 CFR 5B-16.7002. THE USE OF SUCH FORMS FOR THE PROCUREMENT IN QUESTION, THEREFORE, MAY NOT BE VIEWED AS IMPROPER. HOWEVER, WE BELIEVE THAT IN THIS CASE, IN ADDITION TO THE SIMPLE ALTERATION WHICH WAS MADE ON THE FACE OF FORM 1467 AND THE INCLUSION OF THE EXAMINATION OF RECORDS CLAUSE IN THE SOLICITATION TERMS, THE USE OF A NOTATION ON FORM 1467 TO THE EFFECT THAT NEGOTIATION PROCEDURES WERE APPLICABLE AND THAT THE TERM "OFFER" OR "PROPOSAL" SHOULD BE SUBSTITUTED WHERE APPROPRIATE FOR THE TERM "BID" WOULD HAVE LEFT NO DOUBT AS TO THE NATURE OF THE PROCUREMENT. BE THAT AS IT MAY, THE PROCUREMENT WAS NOT ADVERTISED, AND PROPER AUTHORIZATION FOR THE USE OF NEGOTIATION WAS ISSUED PURSUANT TO THE PROCUREMENT STATUTE AND FPR 1-3.202 (B) (1). IN ANY EVENT, WE HAVE HELD THAT A FORMALLY ADVERTISED INVITATION FOR BIDS DOES NOT PRECLUDE NEGOTIATION OF A CONTRACT WITH OTHER THAN THE LOWEST BIDDER, WHERE THE PROCURING AGENCY HAS DISCRETIONARY NEGOTIATING AUTHORITY APPLICABLE TO THE PARTICULAR PROCUREMENT. SEE 20 COMP. GEN. 194; 31 ID. 347.

UNDER GSPR 5-3.802 (G), APPLICABLE TO NEGOTIATED PROCUREMENT, AN OFFER RECEIVED AFTER THE TIME FIXED FOR RECEIPT MAY BE CONSIDERED PROVIDED NO AWARD HAS BEEN MADE AND THE CONTRACTING OFFICER DETERMINES THAT SUCH ACTION WOULD BE IN THE INTEREST OF THE GOVERNMENT. INASMUCH AS THE LATE OFFER IN THIS CASE WAS RECEIVED BEFORE AWARD AND WAS MORE THAN 20 PERCENT LOWER IN PRICE THAN THE SOLE TIMELY SUBMITTED OFFER, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER'S DETERMINATION THAT CONSIDERATION OF THE LATE OFFER WAS IN THE GOVERNMENT'S INTEREST WAS NOT WITHOUT A SUBSTANTIAL BASIS. NOR DO WE BELIEVE THAT POSTPONEMENT OF THE AWARD PENDING RECEIPT OF THE LATE OFFER WAS INCONSISTENT WITH THE URGENCY OF THE PROCUREMENT SINCE THE CONTRACTING OFFICER WAS AWARE, ONLY ONE WORKING DAY AFTER THE CLOSING DATE FOR RECEIPT OF OFFERS, THAT ANOTHER OFFER WAS EN ROUTE TO GSA, SUCH OFFER WAS RECEIVED ON THE FOLLOWING DAY, AND THE AWARD WAS MADE ON THE THIRD DAY. MOREOVER, THERE CANNOT BE OVER-LOOKED THE FACT THAT PERFORMANCE WAS COMPLETED BY JULY 15, OR 25 DAYS AFTER THE SOLICITATION WAS ISSUED AND WITHIN THE MINIMUM PERIOD IN WHICH PROCUREMENT BY FORMAL ADVERTISING COULD HAVE BEEN ACCOMPLISHED.

AS TO THE MATTER OF RESOLICITING KANZE TO AFFORD IT AN OPPORTUNITY TO BETTER ITS PRICE FOLLOWING RECEIPT OF THE DEVELOPMENT OFFER, YOU ARE ADVISED THAT THERE IS NO SUCH REQUIREMENT IN THE FPR, NOR DOES THE PERTINENT STATUTE IMPOSE ANY PROCEDURAL REQUIREMENTS UPON THE NEGOTIATING AUTHORITY CONFERRED BY SECTION 302 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT (41 U.S.C. 252). FURTHER, EVEN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 3-506, RELATING TO LATE PROPOSALS AND MODIFICATIONS, EXEMPTS FROM THE PROHIBITION AGAINST CONSIDERATION OF LATE PROPOSALS CASES IN WHICH ONLY ONE TIMELY PROPOSAL IS RECEIVED, AND THE RESOLICITATION REQUIREMENT IN THAT REGULATION, WHICH APPLIES ONLY WHEN THE SECRETARY CONCERNED HAS DETERMINED THAT CONSIDERATION OF A LATE PROPOSAL IS IN THE INTEREST OF THE GOVERNMENT, SPECIFICALLY REFERS TO PROCUREMENTS IN WHICH TIMELY PROPOSALS (PLURAL) HAVE BEEN RECEIVED. ACCORDINGLY, ONLY ONE TIMELY OFFER HAVING BEEN RECEIVED IN THIS CASE, THE CONTRACTING OFFICER'S DECISION TO CONSIDER THE LATE OFFER FROM DEVELOPMENT DID NOT PER SE REQUIRE THAT KANZE BE NOTIFIED OF THE OFFER AND AFFORDED AN OPPORTUNITY TO SUBMIT EITHER A REPRICED OR SECOND OFFER.

AS TO THE POSSIBLE CONDUCT OF NEGOTIATIONS WITH BOTH OFFERORS, FPR 1- 3.805 REQUIRES WRITTEN OR ORAL DISCUSSIONS WITH RESPONSIBLE OFFERORS ONLY WHEN THE OFFERS OR PROPOSALS ARE WITHIN A COMPETITIVE RANGE. HERE, THE CONTRACTING OFFICER HAS STATED THAT IN VIEW OF THE PRICE DIFFERENTIAL (MORE THAN 20 PERCENT) BETWEEN THE TWO OFFERS HE CONCLUDED THAT KANZE'S OFFER WAS NOT COMPETITIVE AND THAT IT WAS UNLIKELY THAT KANZE WOULD REDUCE ITS PRICE TO A LEVEL COMPETITIVE WITH DEVELOPMENT'S PRICE. FURTHER, AS GSA HAS NOTED, THE FACT THAT KANZE HAD PREVIOUSLY QUOTED THE SAME PRICE TO IRS AND TO DEVELOPMENT APPEARS TO SUBSTANTIATE THE CONTRACTING OFFICER'S JUDGMENT ALTHOUGH THE CONTRACTING OFFICER WAS NOT AWARE OF YOUR EARLIER OFFERS TO IRS AND DEVELOPMENT. IN THE CIRCUMSTANCES, THE CONTRACTING OFFICER'S DECISION NOT TO CONDUCT NEGOTIATIONS, WAS, IN OUR OPINION, A PROPER EXERCISE OF THE DISCRETION GRANTED TO HIM UNDER THE PROCUREMENT REGULATIONS. AS TO THE EFFECT OF THE SOLICITATION REQUIREMENT THAT AN OFFEROR HAVE A NECESSARY ORGANIZATION FOR PERFORMANCE OF EMERGENCY SERVICE WITHIN ONE HOUR OF THE WORK SITE (PHILADELPHIA), OUR OFFICE HAS CONSISTENTLY POINTED OUT THAT A REQUIREMENT THAT A BIDDER HAVE FACILITIES LOCATED IN A CERTAIN AREA RELATES TO A BIDDER'S RESPONSIBILITY, NOT TO THE RESPONSIVENESS OF A BID. B-162250, SEPTEMBER 21, 1967; B-147728, JANUARY 31, 1962; B-146323, SEPTEMBER 18, 1961. FURTHER, GSPR 5B 3.805, WHICH RELATES TO NEGOTIATION OF PUBLIC BUILDINGS SERVICE CONTRACTS, NOT ONLY AUTHORIZES CONSIDERATION OF OTHER THAN LOCAL CONTRACTORS WITH PREVIOUS GOVERNMENT CONTRACT EXPERIENCE BUT SPECIFICALLY PROVIDES THAT DETERMINATIONS OF RESPONSIBILITY OF PROSPECTIVE CONTRACTORS SHALL BE MADE IN ACCORDANCE WITH FPR 1-1.310. UNDER FPR 1-1.310-5 (A) (2), PROBABLE SUBCONTRACTOR ARRANGEMENTS MAY BE CONSIDERED BY THE CONTRACTING OFFICER IN DETERMINING WHETHER A PROSPECTIVE BIDDER HAS THE NECESSARY EXPERIENCE, ORGANIZATION, TECHNICAL QUALIFICATIONS, SKILLS, AND FACILITIES, OR HAS THE ABILITY TO OBTAIN THEM. HOWEVER, WHEN A PROSPECTIVE CONTRACTOR CANNOT MEET THE STANDARD IN FPR 1-1.310-5 (A) (2) EXCEPT BY MEANS OF PROPOSED SUBCONTRACTING, HE SHALL NOT BE CONSIDERED TO BE RESPONSIBLE UNLESS RECENT PERFORMANCE HISTORY INDICATES AN ACCEPTABLE PURCHASING AND SUBCONTRACTING SYSTEM OR PROSPECTIVE MAJOR SUBCONTRACTORS ARE DETERMINED BY THE CONTRACTING OFFICER TO SATISFY THAT STANDARD. FPR 1 1.310-11.

UNDER SUCH REGULATIONS, THE USE OF A QUALIFIED SUBCONTRACTOR TO MEET THE EMERGENCY SERVICE REQUIREMENT WAS PERMISSIBLE. GSA, WHICH, AS THE CONTRACTING AGENCY, BEARS THE PRIMARY RESPONSIBILITY FOR DETERMINING WHETHER DEVELOPMENT WAS RESPONSIBLE, HAS STATED THAT THE EMERGENCY SERVICE REQUIREMENT IN THIS CASE HAS BEEN SATISFACTORILY FULFILLED BY THE ENGAGEMENT BY DEVELOPMENT OF A SUBCONTRACTOR LOCATED IN REASONABLE PROXIMITY TO THE IRS BUILDING. WE HAVE NO INFORMATION OF RECORD OR OTHER BASIS FOR QUESTIONING GSA'S DETERMINATION IN THIS MATTER. ACCORDINGLY, AND FOR THE OTHER REASONS SET FORTH ABOVE, WE SEE NO LEGAL BASIS TO QUESTION THE VALIDITY OF THE AWARD TO DEVELOPMENT. YOUR PROTEST IS THEREFORE DENIED.