B-182711, DEC 12, 1974

B-182711: Dec 12, 1974

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ALLEGATION OF LACK OF FINANCIAL CAPABILITY OF APPARENT LOW BIDDER IS NOT FOR CONSIDERATION. EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. A PREAWARD SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE. THIS RECOMMENDATION WAS BASED UPON. DETERMINED THAT ATEC WAS A RESPONSIBLE BIDDER. OUR 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.

B-182711, DEC 12, 1974

ALLEGATION OF LACK OF FINANCIAL CAPABILITY OF APPARENT LOW BIDDER IS NOT FOR CONSIDERATION, 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.

TECHNOLOGY INCORPORATED:

TECHNOLOGY INCORPORATED (TI) HAS PROTESTED THE MAKING OF ANY AWARD TO ATEC, INC. (ATEC), THE APPARENT LOW BIDDER, UNDER INVITATION FOR BIDS NO. N62467-74-B-0661, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND (NAVFAC), CHARLESTON, SOUTH CAROLINA.

TI QUESTIONS THE FINANCIAL RESPONSIBILITY OF ATEC, CONTENDING THAT THE FINANCIAL DATA PUBLISHED BY ATEC AND FURNISHED FOR EVALUATION PURPOSES RAISES SERIOUS DOUBT ABOUT ATEC'S FINANCIAL RESOURCES WITH REGARD TO ITS ABILITY TO PERFORM UNDER THIS PROCUREMENT. A PREAWARD SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE, HOUSTON, ON NOVEMBER 15, 1974, WHICH RECOMMENDED TO THE CONTRACTING OFFICER THAT ATEC SHOULD RECEIVE THE AWARD. THIS RECOMMENDATION WAS BASED UPON, AMONG OTHER FACTORS, FINANCIAL CAPABILITY. THE CONTRACTING OFFICER, RELYING UPON THIS RECOMMENDATION, DETERMINED THAT ATEC WAS A RESPONSIBLE BIDDER.

OUR 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. 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. (SEE KECO INDUSTRIES, INC. V. UNITED STATES, DECIDED FEBRUARY 20, 1974, UNITED STATES COURT OF CLAIMS NO. 173-69, WHEREIN THE COURT, IN REVIEWING A DISAPPOINTED BIDDER'S CLAIM FOR BID PREPARATION EXPENSES, OBSERVES THAT CRITERIA FOR DETERMINING BIDDER RESPONSIBILITY "ARE NOT READILY SUSCEPTIBLE TO REASONED JUDICIAL REVIEW.") MATTER OF UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, B-177512, JUNE 7, 1974, 53 COMP. GEN. .

ACCORDINGLY, WE MUST DECLINE TO CONSIDER THIS PROTEST ON ITS MERITS.