B-182306, OCT 15, 1974

B-182306: Oct 15, 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 PROTEST ALLEGES OR DEMONSTRATES ACTIONS BY PROCURING OFFICIALS IN RELATION THERETO WHICH ARE TANTAMOUNT TO FRAUD. WE HAVE BEEN INFORMALLY ADVISED THAT WHILE NIH REVIEW OF CONSOLIDATED ELEVATOR 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.

B-182306, OCT 15, 1974

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

OTIS ELEVATOR COMPANY:

BY MAIL GRAM OF SEPTEMBER 26, 1974, OTIS ELEVATOR COMPANY (OTIS) PROTESTS AGAINST THE AWARD OF A CONTRACT TO CONSOLIDATED ELEVATOR COMPANY, INCORPORATED, LOW BIDDER UNDER INVITATION FOR BIDS (IFB) NO. NIH-75B - (67) - 31CC, ISSUED BY THE NATIONAL INSTITUTES OF HEALTH (NIH), U.S. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, WASHINGTON, D.C., FOR ELEVATOR MAINTENANCE SERVICE. OTIS CONTENDS THAT CONSOLIDATED ELEVATOR LACKS THE CAPABILITY TO PERFORM THE CONTRACT SERVICES AS OUTLINED IN THE IFB, AND ACCORDINGLY SHOULD BE DETERMINED NONRESPONSIBLE AND INELIGIBLE TO RECEIVE THE AWARD UNDER THE ABOVE SOLICITATION.

WE HAVE BEEN INFORMALLY ADVISED THAT WHILE NIH REVIEW OF CONSOLIDATED ELEVATOR IS UNDER WAY, NO DETERMINATION OF RESPONSIBILITY HAS YET BEEN MADE UNDER THIS IFB.

OTIS ESSENTIALLY QUESTIONS THE RESPONSIBILITY OF CONSOLIDATED ELEVATOR. HOWEVER, OUR OFFICE HAS DISCONTINUED ITS PRIOR PRACTICE OF REVIEWING PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. MATTER OF UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, 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. THEREFORE, SINCE OTIS QUESTIONS THE RESPONSIBILITY OF CONSOLIDATED ELEVATOR BUT DOES NOT ALLEGE OR DEMONSTRATE FRAUD BY PROCURING OFFICIALS IN THE DETERMINATION THEREOF, WE MUST DECLINE TO FURTHER CONSIDER THE MATTER. HOWEVER, SINCE THE CONTRACTING OFFICER HAS YET TO MAKE A DETERMINATION CONCERNING THE LOW BIDDER'S RESPONSIBILITY, ANY INFORMATION CONCERNING THE PROTESTER'S CONTENTIONS SHOULD BE FURNISHED TO THE CONTRACTING AGENCY. SEE MATTER OF COMMERCIAL OFFICE FURNITURE COMPANY, B-182115, SEPTEMBER 16, 1974.