B-182772, DEC 17, 1974

B-182772: Dec 17, 1974

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EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. NO FRAUD IS ALLEGED. PROTEST IS SUMMARILY DISMISSED. DOES NOT HAVE SUFFICIENTLY QUALIFIED PERSONNEL TO PERFORM THE CONTRACT AND IS THEREFORE UNQUALIFIED TO RECEIVE THE AWARD. THE COURTS HAVE HELD THAT A PARTY ALLEGING ARBITRARY ACTION BY AN AGENCY MUST MEET A HIGH STANDARD OF PROOF BY SHOWING THAT SUCH ARBITRARY ACTION AS ALLEGED DID IN FACT EXIST. THE COURT HAS OBSERVED THAT CRITERIA FOR DETERMINING BIDDER RESPONSIBILITY "ARE NOT READILY SUSCEPTIBLE TO REASONED JUDICIAL REVIEW.". A PRACTICAL MATTER A BIDDER PROTESTING THE AFFIRMATIVE RESPONSIBILITY OF A COMPETITOR IS NOT IN A POSITION TO MEET THIS HIGH STANDARD OF PROOF AS CONTRASTED TO THE DEGREE OF FIRST HAND KNOWLEDGE AND ACCESS TO THE LOW BIDDER'S PLANT AND RECORDS WHICH THE GOVERNMENT HAS.

B-182772, DEC 17, 1974

SINCE PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION HAS BEEN DISCONTINUED, EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD, AND NO FRAUD IS ALLEGED, PROTEST IS SUMMARILY DISMISSED.

UNIVERSAL SERVICE, INC.:

UNIVERSAL SERVICES PROTESTS THE SELECTION OF CONTINENTAL SERVICES FOR AWARD OF DEFENSE SUPPLY AGENCY CONTRACT NO. 600-75C-0031, ON THE BASIS THAT CONTINENTAL ALLEGEDLY DOES NOT MEET THE QUALIFICATIONS OF A RESPONSIBLE CONTRACTOR, AND DOES NOT HAVE SUFFICIENTLY QUALIFIED PERSONNEL TO PERFORM THE CONTRACT AND IS THEREFORE UNQUALIFIED TO RECEIVE THE AWARD.

IN ESSENCE THE PROTESTER QUESTIONS THE RESPONSIBILITY OF THE LOW BIDDER AND ITS ELIGIBILITY FOR CONTRACT AWARD.

THIS OFFICE HAS DISCONTINUED ITS PRIOR PRACTICE OF REVIEWING BID PROTEST INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. MATTER OF CENTRAL METAL PRODUCTS, INC., B-181724, JULY 26, 1974, 54 COMP. GEN. . THE STANDARDS FOR RESPONSIBLE PROSPECTIVE CONTRACTORS AND THE REQUIREMENTS AND PROCEDURES FOR RESPONSIBILITY DETERMINATIONS ESSENTIALLY INVOLVE A MATTER OF BUSINESS JUDGMENT. SEE FEDERAL PROCUREMENT REGULATIONS 1 1.1200 ET SEQ. AND ARMED SERVICES PROCUREMENT REGULATION 1-900 ET SEQ. THE COURTS HAVE HELD THAT A PARTY ALLEGING ARBITRARY ACTION BY AN AGENCY MUST MEET A HIGH STANDARD OF PROOF BY SHOWING THAT SUCH ARBITRARY ACTION AS ALLEGED DID IN FACT EXIST. KECO INDUSTRIES V. UNITED STATES, 428 F.2D 1233, 1240 (CT. CL. 1970). MOREOVER, THE COURT HAS OBSERVED THAT CRITERIA FOR DETERMINING BIDDER RESPONSIBILITY "ARE NOT READILY SUSCEPTIBLE TO REASONED JUDICIAL REVIEW." KECO INDUSTRIES V. UNITED STATES, 492 F.2D 1200, 1205 (CT. CL. 1974). A PRACTICAL MATTER A BIDDER PROTESTING THE AFFIRMATIVE RESPONSIBILITY OF A COMPETITOR IS NOT IN A POSITION TO MEET THIS HIGH STANDARD OF PROOF AS CONTRASTED TO THE DEGREE OF FIRST HAND KNOWLEDGE AND ACCESS TO THE LOW BIDDER'S PLANT AND RECORDS WHICH THE GOVERNMENT HAS.

FOR THESE REASONS WE DO NOT BELIEVE AFFIRMATIVE RESPONSIBILITY DETERMINATIONS SHOULD BE QUESTIONED BY THIS OFFICE EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. NO FRAUD HAVING BEEN ALLEGED FOR DEMONSTRATED, WE MUST DECLINE TO FURTHER CONSIDER THE MATTER.