B-182071, OCT 8, 1974

B-182071: Oct 8, 1974

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ALLEGATION THAT LOW BIDDER DOES NOT HAVE SUFFICIENT FINANCIAL RESOURCES TO ABSORB OUT OF POCKET LOSSES RESULTING FROM PERFORMANCE OF CONTRACT AT QUOTED PRICE WILL NOT BE CONSIDERED SINCE GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. 2. AN ATTEMPTED "BUY-IN" DOES NOT AFFORD A BASIS FOR REJECTION OF A BID AND AN AWARD MAY NOT BE WITHHELD MERELY BECAUSE THE LOW BID WHICH IS OTHERWISE ACCEPTABLE IS BELOW-COST. 3. PROTESTER'S CONTENTIONS CONCERNING ALLEGED MODIFICATIONS TO CONTRACT WHICH WOULD INCREASE COSTS TO GOVERNMENT AND ALLOW BIDDER TO RECOUP ALLEGED LOSSES ARE NOT MATTERS FOR GAO RESOLUTION UNDER BID PROTEST PROCEDURES AND WILL NOT BE CONSIDERED ON MERITS.

B-182071, OCT 8, 1974

1. ALLEGATION THAT LOW BIDDER DOES NOT HAVE SUFFICIENT FINANCIAL RESOURCES TO ABSORB OUT OF POCKET LOSSES RESULTING FROM PERFORMANCE OF CONTRACT AT QUOTED PRICE WILL NOT BE CONSIDERED SINCE GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. 2. AN ATTEMPTED "BUY-IN" DOES NOT AFFORD A BASIS FOR REJECTION OF A BID AND AN AWARD MAY NOT BE WITHHELD MERELY BECAUSE THE LOW BID WHICH IS OTHERWISE ACCEPTABLE IS BELOW-COST. 3. PROTESTER'S CONTENTIONS CONCERNING ALLEGED MODIFICATIONS TO CONTRACT WHICH WOULD INCREASE COSTS TO GOVERNMENT AND ALLOW BIDDER TO RECOUP ALLEGED LOSSES ARE NOT MATTERS FOR GAO RESOLUTION UNDER BID PROTEST PROCEDURES AND WILL NOT BE CONSIDERED ON MERITS. APPROPRIATENESS OF MODIFICATIONS TO A CONTRACT AND AMOUNTS PAID OR RECEIVED THEREFOR ARE PRIMARILY CONTRACT ADMINISTRATION FUNCTIONS AND ARE THE RESPONSIBILITY OF CONTRACTING AGENCY.

KELLY SERVICES:

REQUEST FOR PROPOSALS (RFP) NO. DAAH03-74-R-0222, ISSUED BY THE U.S. ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, SOLICITED PROPOSALS FOR CHOIR DIRECTOR SERVICES, ORGANIST SERVICES AND FOR THE SERVICES OF PART-TIME CLERGY AND RETREAT MASTERS. KELLY SERVICES (KELLY) PROTESTS THE AWARD OF A CONTRACT TO JAMES T. GOYER ASSOCIATES (GOYER), ON THE BASIS THAT GOYER HAS NOT ESTABLISHED ITSELF AS A QUALIFIED BIDDER WITH SUFFICIENT FINANCIAL RESOURCES TO ABSORB THE LOSS WHICH THE PROTESTER ALLEGES GOYER WILL INCUR IF THE CONTRACT IS AWARDED AT THE QUOTED PRICE. MOREOVER, THE PROTESTER QUESTIONS WHETHER IT IS THE GOVERNMENT'S PROCUREMENT POLICY TO ALLOW PROSPECTIVE CONTRACTORS TO "BUY-IN". IN THIS CONNECTION, KELLY ASSERTS THAT THE CONTRACTOR MAY BE PERMITTED TO RECOUP ITS LOSSES THROUGH THE GOVERNMENT'S ACQUISITION OF ADDITIONAL CONTRACT REQUIREMENTS.

IN REGARD TO THE ABILITY OF GOYER TO ABSORB AN ALLEGED OUT-OF-POCKET LOSS RESULTING FROM CONTRACT PERFORMANCE, THE PROTESTER IS IN ESSENCE QUESTIONING THE RESPONSIBILITY OF THE LOW BIDDER AND ITS ELIGIBILITY FOR CONTRACT AWARD. THIS OFFICE HAS DISCONTINUED ITS 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. 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. 54 COMP. GEN. , B-181724, JULY 26, 1974. SINCE NO FRAUD HAS BEEN ALLEGED OR DEMONSTRATED, WE MUST DECLINE TO FURTHER CONSIDER THE MATTER.

IN OBJECTING TO THE POSSIBILITY OF A "BUY-IN", KELLY ALSO STATES THAT CHANGES MAY BE MADE TO THE CONTRACT IN THE FORM OF AN AUTHORIZATION AUTHORIZATION FOR ADDITIONAL REHEARSAL TIME, THUS INCREASING THE GOVERNMENT'S COSTS THEREUNDER. KELLY CONTENDS THAT SUCH SERVICES COULD BE PROVIDED BY GOYER AT A MORE PROFITABLE RATE WHICH WOULD ENABLE THE CONTRACTOR TO RECOUP ANY LOSSES INCURRED UNDER THE ORIGINAL CONTRACTUAL REQUIREMENTS.

THIS OFFICE HAS HELD THAT AN ATTEMPTED "BUY-IN" DOES NOT AFFORD A BASIS FOR REJECTION OF A BID AND THAT AN AWARD MAY NOT BE WITHHELD OR DISTURBED MERELY BECAUSE THE LOW BID IS BELOW-COST. 53 COMP. GEN. ***; B-179406, FEBRUARY 14, 1974; 50 COMP. GEN. 788 (1971). MOREOVER, THE APPROPRIATENESS OF MODIFICATIONS TO A CONTRACT, AND THE AMOUNTS PAID OR RECEIVED THEREFOR, PERTAINS TO CONTRACT ADMINISTRATION WHICH IS PRIMARILY A FUNCTION AND RESPONSIBILITY OF THE CONTRACTING AGENCY, AND IS NOT ORDINARILY REGARDED AS A MATTER FOR RESOLUTION UNDER OUR BID PROTEST PROCEDURES PURSUANT TO WHICH WE CONSIDER THE PROPRIETY OF THE AWARD, OR PROPOSED AWARD, OF A CONTRACT. B-173916, APRIL 20, 1972. ACCORDINGLY, KELLY'S CONTENTIONS CONCERNIG KELLY'S CONTENTIONS CONCERNING THE MODIFICATIONS TO THE SUBJECT CONTRACT WILL NOT BE CONSIDERED ON THEIR MERITS BY OUR OFFICE.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR OUR OFFICE TO TO QUESTION THE AWARD TO GOYER.