B-182115, SEP 16, 1974

B-182115: Sep 16, 1974

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PROTEST WILL NOT BE CONSIDERED SINCE GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS AGAINST ANOTHER BIDDER'S RESPONSIBILITY. UNLESS PROTESTER ALLEGES OR DEMONSTRATES ACTIONS BY PROCURING OFFICIALS IN RELATION THERETO WHICH ARE TANTAMOUNT TO FRAUD. WE HAVE BEEN INFORMALLY ADVISED THAT WHILE GSA REVIEW OF BOTH BIDDERS IS UNDER WAY. AS SUCH A DETERMINATION IS LARGELY WITHIN THE DISCRETION OF THE CONTRACTING OFFICER. THIS OFFICE HAS CONCLUDED THAT A CONTRACTING OFFICER'S DETERMINATION OF A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY EFFECTED PURSUANT TO APPLICABLE REGULATION SHOULD NOT BE DISTURBED EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. THAT THE PROTESTER'S CONTENTIONS REGARDING THE LOW BIDDERS HAVE BEEN FURNISHED TO THE CONTRACTING AGENCY.

B-182115, SEP 16, 1974

WHERE PROTESTER ALLEGES THAT LOW BIDDERS SHOULD BE DETERMINED TO BE NONRESPONSIBLE DUE TO ALLEGED LACK OF CAPABILITY TO SUPPLY GOVERNMENT NEEDS, PROTEST WILL NOT BE CONSIDERED SINCE GAO HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS AGAINST ANOTHER BIDDER'S RESPONSIBILITY, UNLESS PROTESTER ALLEGES OR DEMONSTRATES ACTIONS BY PROCURING OFFICIALS IN RELATION THERETO WHICH ARE TANTAMOUNT TO FRAUD. SEE B-177512, JUNE 7, 1974, 53 COMP. GEN. .

COMMERCIAL OFFICE FURNITURE COMPANY:

BY LETTER OF AUGUST 27, 1974, COMMERCIAL OFFICE FURNITURE COMPANY (COMMERCIAL) PROTESTS AGAINST THE AWARD OF ANY CONTRACTS TO EITHER ART METAL, U.S.A., INCORPORATED, OR THE SUPREME EQUIPMENT AND SYSTEMS CORPORATION, LOW BIDDERS UNDER INVITATION FOR BIDS (IFB) NO. FPF0S5 29625A, ISSUED BY THE FEDERAL SUPPLY SERVICE (FPO), GENERAL SERVICES ADMINISTRATION (GSA), WASHINGTON, D. C. FOR LATERAL FILING CABINETS. COMMERCIAL CONTENDS THAT BOTH FIRMS LACK THE CAPABILITY TO SUPPLY THE LATERAL FILING CABINETS REQUIRED BY GSA, AND ACCORDINGLY SHOULD BE DETERMINED NONRESPONSIBLE AND INELIGIBLE TO RECEIVE AWARDS UNDER THE ABOVE SOLICITATION.

WE HAVE BEEN INFORMALLY ADVISED THAT WHILE GSA REVIEW OF BOTH BIDDERS IS UNDER WAY, NO DETERMINATION OF RESPONSIBILITY HAS YET BEEN MADE UNDER THIS IFB.

COMMERCIAL ESSENTIALLY QUESTIONS THE RESPONSIBILITY OF BOTH ART METAL AND SUPREME. HOWEVER, OUR OFFICE HAS DISCONTINUED ITS PRIOR PRACTICE OF REVIEWING PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. B-177512, JUNE 7, 1974, 53 COMP. GEN. . AS SUCH A DETERMINATION IS LARGELY WITHIN THE DISCRETION OF THE CONTRACTING OFFICER, AND AS THE CONTRACTING ACTIVITY MUST BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S LACK OF ABILITY, THIS OFFICE HAS CONCLUDED THAT A CONTRACTING OFFICER'S DETERMINATION OF A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY EFFECTED PURSUANT TO APPLICABLE REGULATION SHOULD NOT BE DISTURBED EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. ALTHOUGH THE CONTRACTING OFFICER HAS YET TO MAKE A DETERMINATION CONCERNING THE RESPONSIBILITY OF EITHER ART METAL OR SUPREME, THE OPERATION OF THE PRINCIPLE ENUNCIATED IN B-177512, SUPRA, DOES NOT DEPEND ON WHETHER THE CONTRACTING OFFICER HAS MADE A DETERMINATION OF RESPONSIBILITY BUT WHETHER THE SUBJECT PROTEST IN FACT QUESTIONS ANOTHER BIDDER'S RESPONSIBILITY. THEREFORE, SINCE COMMERCIAL QUESTIONS THE RESPONSIBILITY OF ART METAL AND SUPREME BUT DOES NOT ALLEGE OR DEMONSTRATE FRAUD BY PROCURING OFFICIALS IN THE DETERMINATION THEREOF, WE MUST DECLINE TO FURTHER CONSIDER THE MATTER. WE NOTE, HOWEVER, THAT THE PROTESTER'S CONTENTIONS REGARDING THE LOW BIDDERS HAVE BEEN FURNISHED TO THE CONTRACTING AGENCY.