B-181828, DEC 12, 1974

B-181828: Dec 12, 1974

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ALLEGATION THAT EQUIPMENT PROPOSED TO BE USED BY LOW BIDDER WILL NOT BE ABLE TO PERFORM REQUIRED SERVICES IN EXACT CONFORMITY WITH INVITATION'S SPECIFICATIONS WILL NOT BE CONSIDERED SINCE PROTESTER IN ESSENCE IS QUESTIONING THE RESPONSIBILITY OF THE BIDDER TO PERFORM AND GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICERS' AFFIRMATIVE RESPONSIBILITY DETERMINATIONS EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. 2. FOUR BIDS WERE RECEIVED AND OPENED JUNE 3. WAS THE APPARENT LOW RESPONSIVE. 600.00 WAS AWARDED TO GSM ON JUNE 29. BOW FIRST CONTENDS THAT A VERY POOR TECHNICAL EVALUATION WAS MADE OF THE LOW BIDDER AND SUGGESTS THAT EVEN AFTER AWARD.

B-181828, DEC 12, 1974

1. ALLEGATION THAT EQUIPMENT PROPOSED TO BE USED BY LOW BIDDER WILL NOT BE ABLE TO PERFORM REQUIRED SERVICES IN EXACT CONFORMITY WITH INVITATION'S SPECIFICATIONS WILL NOT BE CONSIDERED SINCE PROTESTER IN ESSENCE IS QUESTIONING THE RESPONSIBILITY OF THE BIDDER TO PERFORM AND GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICERS' AFFIRMATIVE RESPONSIBILITY DETERMINATIONS EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. 2. FAILURE OF BIDDER TO SUBMIT WITH BID CATALOGS DESCRIBING EQUIPMENT AND SERVICES RELATED TO PROCUREMENT IN ACCORDANCE WITH SOLICITATION'S DATA SUBMISSION REQUIREMENT, DOES NOT RENDER BID NONRESPONSIVE, INASMUCH AS INFORMATION RELATES NOT TO WHETHER SERVICES OFFERED CONFORM TO GOVERNMENT'S NEEDS AS STATED IN IFB, BUT TO BIDDER'S RESPONSIBILITY, WHICH MAY BE DETERMINED ON BASIS OF INFORMATION SUBMITTED AFTER BID OPENING.

BOW INDUSTRIES, INCORPORATED:

INVITATION FOR BIDS (IFB) NO. 166-74-HEW-OS, ISSUED BY THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW), SOLICITED BIDS FOR A MAGNETIC TAPE MAINTENANCE PROGRAM TO CLEAN AND TEST FOR RELIABILITY, GOVERNMENT OWNED TAPES HOUSED IN THE DATA MANAGEMENT CENTER LIBRARY. IN RESPONSE TO THE SUBJECT IFB, FOUR BIDS WERE RECEIVED AND OPENED JUNE 3, 1974, AS SCHEDULED. AFTER EVALUATING THE FOUR BIDS, THE CONTRACTING OFFICER DETERMINED THAT GSM & ASSOCIATES (GSM), WAS THE APPARENT LOW RESPONSIVE, RESPONSIBLE BIDDER. ACCORDINGLY, CONTRACT HEW-OS-74-307 IN THE AMOUNT OF $42,600.00 WAS AWARDED TO GSM ON JUNE 29, 1974.

BY LETTER DATED JULY 12, 1974, BOW INDUSTRIES, INCORPORATED (BOW), THE THIRD LOW BIDDER, PROTESTED THE AWARD OF THE SUBJECT CONTRACT TO GSM.

BOW FIRST CONTENDS THAT A VERY POOR TECHNICAL EVALUATION WAS MADE OF THE LOW BIDDER AND SUGGESTS THAT EVEN AFTER AWARD, HEW DOES NOT KNOW WHAT EQUIPMENT GSM INTENDS TO USE TO SATISFY THE TECHNICAL REQUIREMENTS OF THE CONTRACT. IN THIS REGARD, THE PROTESTER ALLEGES THAT THE TAPE EVALUATOR WHICH GSM PROPOSES TO USE AS ITS ONLY PIECE OF TAPE MAINTENANCE EQUIPMENT FOR PERFORMANCE OF THE REQUIRED SERVICES IS INCAPABLE OF WINDING TAPE IN ACCORDANCE WITH THE INVITATION'S SPECIFICATIONS. IT IS THE ADMINISTRATIVE POSITION THAT GSM IS A RESPONSIBLE CONTRACTOR AND THAT THE EQUIPMENT WHICH IT PROPOSES TO USE IN THE PROCUREMENT WILL ENABLE GSM TO PERFORM THE REQUIRED SERVICES IN CONFORMITY WITH THE SPECIFICATIONS.

THE PROTESTER, IN ALLEGING THAT THE EQUIPMENT OFFERED BY GSM WILL NOT BE ABLE TO PERFORM THE REQUIRED SERVICES IN CONFORMANCE WITH THE INVITATION'S SPECIFICATIONS, IS IN ESSENCE QUESTIONING THE RESPONSIBILITY (ABILITY) OF THE LOW BIDDER AND ITS ELIGIBILITY FOR CONTRACT AWARD. IN THIS REGARD, WE HAVE CONSISTENTLY HELD THAT THE QUESTION OF A BIDDER'S ABILITY TO PERFORM A PROPOSED CONTRACT, AS OPPOSED TO ITS COMPLIANCE WITH THE MATERIAL TERMS AND CONDITIONS OF AN INVITATION FOR BIDS, IS A QUESTION OF BIDDER RESPONSIBILITY RATHER THAN OF BID RESPONSIVENESS. B-166144, MARCH 20, 1969. WE HAVE DISCONTINUED OUR PRIOR PRACTICE OF REVIEWING BID PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR SINCE ANY SUCH DETERMINATION IS LARGELY WITHIN THE DISCRETION OF THE PROCURING OFFICIALS WHO MUST SUFFER ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S NONRESPONSIBILITY. MATTER OF UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, 53 COMP. GEN. , B-177512, JUNE 7, 1974. IF PURSUANT TO THE APPLICABLE REGULATIONS THE CONTRACTING OFFICER FINDS THE PROPOSED CONTRACTOR RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. MATTER OF CENTRAL METALS PRODUCTS, INC. 54 COMP. GEN. , B-181724, JULY 26, 1974. SINCE NO FRAUD HAS BEEN ALLEGED OR DEMONSTRATED, WE MUST DECLINE TO FURTHER CONSIDER THE MATTER.

SECONDLY, THE PROTESTER ALLEGES THAT TITLE 41, CODE OF FEDERAL REGULATIONS SEC. 1-2.404.2(A)(1973 ED.) WAS VIOLATED IN THAT AN ESSENTIAL REQUIREMENT OF THE INVITATION WAS NOT SUPPLIED BY ANY OTHER BIDDER EXCEPT BOW AND ACCORDINGLY, ALL THE OTHER BIDS SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE. THE BASIS FOR THIS CONTENTION WAS THE FAILURE OF THE OTHER BIDDERS TO SUBMIT WITH THEIR RESPECTIVE BIDS THE DATA REQUIRED BY ARTICLE III OF THE IFB'S SPECIAL PROVISIONS ENTITLED "METHOD OF AWARD", WHICH READS IN PERTINENT PART:

"B. BIDDERS MUST ALSO SUPPLY TO THE GOVERNMENT, AS PART OF ITS PROPOSAL, CATALOGS DESCRIBING EQUIPMENT AND SERVICES RELATED TO THE WORK CALLED FOR IN THIS IFB."

WE DO NOT AGREE WITH THE PROTESTER'S CONTENTION THAT THE DATA REQUIRED BY ARTICLE III WAS TO ENABLE THE PROCURING ACTIVITY TO DETERMINE WHETHER THE SERVICES OFFERED CONFORMED TO THE GOVERNMENT'S NEEDS AND THAT GSM'S FAILURE TO SUBMIT THE INFORMATION RENDERED ITS BID NONRESPONSIVE.

WHILE THE REQUIREMENT FOR THE ABOVE INFORMATION WAS STATED IN MANDATORY TERMS, IT DOES NOT APPEAR THAT THIS INFORMATION WAS INTENDED TO OPERATE TO DEFINE OR LIMIT THE BIDDER'S OBLIGATIONS UNDER THE CONTRACT TO BE AWARDED. SEE 52 COMP. GEN. 389 (1972). INFORMATION PERTAINING TO THE EQUIPMENT AND SERVICES WHICH WILL BE UTILIZED BY THE BIDDER IN THE PERFORMANCE OF THE CONTRACT GENERALLY RELATES TO A PROSPECTIVE CONTRACTOR'S ABILITY TO PERFORM IN ACCORDANCE WITH THE CONTRACT TERMS AND NOT TO ITS LEGAL OBLIGATION TO PERFORM THE REQUIRED SERVICES IN EXACT CONFORMITY WITH THE INVITATION'S SPECIFICATIONS. SEE 53 COMP. GEN. 396 (1973). FURTHERMORE, WE HAVE CONSISTENTLY HELD THAT WHERE A REQUIREMENT FOR THE SUBMISSION OF DATA IS FOR THE PURPOSE OF DETERMINING THE CAPACITY OR RESPONSIBILITY OF A BIDDER RATHER THAN WHETHER THE PROPERTY OR SERVICES OFFERED CONFORM TO THE GOVERNMENT'S NEEDS AS STATED IN THE SOLICITATION, THE FAILURE OF THE BIDDER TO SUBMIT DATA IN ACCORDANCE WITH THE SOLICITATION'S DATA SUBMISSION REQUIREMENT IS NOT FATAL TO THE CONSIDERATION OF ITS BID, INASMUCH AS A BIDDER'S CAPACITY OR RESPONSIBILITY MAY BE DETERMINED ON THE BASIS OF INFORMATION SUBMITTED AFTER THE BID OPENING. MATTER OF STARR ELECTRIC COMPANY, B-181042, AUGUST 2, 1974. THUS, THE FAILURE OF THE BIDDER TO SUBMIT WITH HIS BID CATALOGS DESCRIBING EQUIPMENT AND SERVICES RELATED TO THE REQUIRED WORK, EVEN WHEN SPECIFIED BY THE INVITATION, AS IN THIS CASE, DID NOT RENDER HIS BID NONRESPONSIVE. SEE 42 COMP. GEN. 464, 467 (1963).

FOR THE FOREGOING REASONS, WE CONCLUDE THAT NO LEGAL BASIS EXISTS FOR OBJECTING TO THE AWARD OF THE CONTRACT TO GSM AND THEREFORE, BOW'S PROTEST IS DENIED.