B-172675, AUG 9, 1971

B-172675, AUG 9, 1971

BID PROTEST - BIDDER RESPONSIBILITY - TIME OF DETERMINATION DECISION DENYING REQUEST THAT COMP. GEN. RECONSIDER THE PROTEST BY JIMMIE MUSCATELLO'S AGAINST REJECTION OF ITS LOW BID FOR SHIRTS UNDER IFB ISSUED BY BUREAU OF PROCUREMENT, DEPARTMENT OF GENERAL SERVICES, GOVERNMENT OF THE DISTRICT OF COLUMBIA. THE DETERMINATION OF NONRESPONSIBILITY BY THE PROCURING AGENCY IS NOT SUBJECT TO QUESTION BY THIS OFFICE. THE CRITICAL DATE FOR SUCH A DETERMINATION WAS THE DATE OF THE AWARD AND IF, AS HERE, AWARD HAS BEEN MADE TO THE LOWEST RESPONSIBLE BIDDER, NO CORRECTIVE ACTION IS POSSIBLE IN THE CASE OF A LOWER NONRESPONSIBLE BIDDER WHO, AFTER AWARD, CONTENDS IT IS A RESPONSIBLE BIDDER.

TO FAULKNER & SHANDS:

WE REFER TO YOUR LETTER OF JULY 14, 1971, REQUESTING THAT WE RECONSIDER OUR DECISION DATED JUNE 29, 1971, DENYING THE PROTEST OF JIMMIE MUSCATELLO'S AGAINST THE REJECTION OF ITS LOW BID FOR SHIRTS UNDER ITEMS 74 THROUGH 85 IN INVITATION NO. 84-087-1-0463-BS, ISSUED BY THE BUREAU OF PROCUREMENT, DEPARTMENT OF GENERAL SERVICES, GOVERNMENT OF THE DISTRICT OF COLUMBIA. YOU FURTHER STATE THAT YOU HAVE BEEN INFORMED THAT THE BUREAU OF PROCUREMENT INTENDS TO ENTER INTO NEGOTIATIONS WITH THE CONTRACTOR (LEVANTHAL BROTHERS & COMPANY, INC.) TO CHANGE THE WEIGHT OF THE SHIRT MATERIAL FROM 3.6 OUNCES TO 4.1 OUNCES. YOU MAINTAIN THAT TO ALLOW SUCH NEGOTIATIONS WOULD BE UNCONSCIONABLE, AND THAT THE CONTRACT SHOULD BE AWARDED TO MUSCATELLO'S OR THE PROCUREMENT RESOLICITED. UPON REVIEW, WE CONCLUDE THAT THE AWARD MADE TO LEVANTHAL SHOULD NOT BE DISTURBED. OUR JUNE 29 DECISION DEALT WITH MUSCATELLO'S COMPLAINT THAT IT WAS IN FACT A RESPONSIBLE BIDDER NOTWITHSTANDING THE FINDING TO THE CONTRARY MADE BY THE BUREAU OF PROCUREMENT. WE CONCLUDED, IN OUR JUNE 29 DECISION, AFTER A CAREFUL REVIEW OF THE ENTIRE RECORD, THAT THE DETERMINATION OF NONRESPONSIBILITY WAS NOT SUBJECT TO QUESTION BY OUR OFFICE. THEREAFTER, THE DISTRICT OF COLUMBIA AWARDED THE CONTRACT TO LEVANTHAL AS THE LOWEST RESPONSIBLE BIDDER UNDER THE INVITATION.

IT IS NOW REQUESTED THAT WE, IN EFFECT, FIND MUSCATELLO'S A RESPONSIBLE BIDDER FOR THIS PROCUREMENT SINCE IT CAN MEET THE REQUIRED DELIVERY SCHEDULE. HOWEVER, THE CRITICAL DATE FOR SUCH A DETERMINATION IS THE DATE OF AWARD AND IF, AS HERE, AWARD HAS BEEN MADE TO THE LOWEST RESPONSIBLE BIDDER, NO CORRECTIVE ACTION IS POSSIBLE IN THE CASE OF A LOWER NONRESPONSIBLE BIDDER WHO, AFTER AWARD, CONTENDS THAT IT IS IN FACT A RESPONSIBLE BIDDER.

SINCE WE CONCLUDE THAT NO LEGAL BASIS EXISTS TO CANCEL THE CONTRACT, A RESOLICITATION OF THE PROCUREMENT IS NOT POSSIBLE.

CONCERNING THE NEGOTIATIONS BEING UNDERTAKEN BY THE BUREAU OF PROCUREMENT WITH THE CONTRACTOR TO PROVIDE FOR SHIRT MATERIAL WEIGHING 4.1 OUNCES, WE ARE ADVISED THAT SUCH NEGOTIATIONS WERE BEGUN AFTER AWARD AT THE REQUEST BY THE METROPOLITAN POLICE DEPARTMENT. THE CONTRACTOR, WE UNDERSTAND, HAS AGREED TO MAKE THIS CHANGE, AS WELL AS SEVERAL OTHER VERY MINOR CHANGES IN THE SHIRT CONSTRUCTION, WITH NO ADDITIONAL COST TO THE DISTRICT OF COLUMBIA. SUCH CHANGES WOULD SEEM TO BE AUTHORIZED UNDER PARAGRAPH 15 OF THE GENERAL CONDITIONS OF THE CONTRACT, WHICH PROVIDES THAT "THE PROCUREMENT OFFICER MAY, AT ANY TIME, BY WRITTEN ORDER, *** MAKE CHANGES IN THE CONTRACT WITHIN THE GENERAL SCOPE THEREOF." THE ADMINISTRATION OF THE LEVANTHAL CONTRACT AND THE APPLICATION OF THE CHANGES CLAUSE TO PARTICULAR MATTERS IS WITHIN THE RESPONSIBILITY OF THE DISTRICT OF COLUMBIA GOVERNMENT AND IS NOT SUBJECT TO THE DIRECTION OR CONTROL BY OUR OFFICE.

ACCORDINGLY, THE DECISION OF JUNE 29, 1971, IS AFFIRMED.