B-183470, APR 21, 1975

B-183470: Apr 21, 1975

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NO FRAUD IS ALLEGED. PROTEST IS NOT FOR CONSIDERATION. OBJECTION TO RFP TERMS FILED AFTER CLOSING DATE FOR RECEIPT OF PROPOSALS IS UNTIMELY UNDER 4 C.F.R. BECAUSE PAST CONTRACTORS HAVE BEEN DELINQUENT IN FAILING TO MEET SIMILAR REQUIREMENTS. THERE WILL BE A LOSS OF MOMENTUM IN MEETING THE GOVERNMENT'S NEEDS FOR AN ESSENTIAL ITEM AND A LOSS OF KISCO'S SKILLED WORKFORCE WHICH IS CURRENTLY PERFORMING THE PREDECESSOR CONTRACT. SUCH DETERMINATIONS ARE LARGELY WITHIN THE DISCRETION OF THE PROCUREMENT OFFICIALS WHO MUST BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF A CONTRACTOR'S NONRESPONSIBILITY. KISCO'S PROTEST IS NOT FOR CONSIDERATION BY OUR OFFICE. WE HAVE FORWARDED A COPY OF THE PROTEST TO THE CONTRACTING AGENCY.

B-183470, APR 21, 1975

SINCE PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY HAS BEEN DISCONTINUED, EXCEPT FOR ACTIONS BY PROCUREMENT OFFICIALS TANTAMOUNT TO FRAUD, AND NO FRAUD IS ALLEGED, PROTEST IS NOT FOR CONSIDERATION. ALSO, OBJECTION TO RFP TERMS FILED AFTER CLOSING DATE FOR RECEIPT OF PROPOSALS IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974 ED.).

KISCO COMPANY, INC.:

KISCO COMPANY, INC. (KISCO), PROTESTS AGAINST AWARD TO ANY OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAA25-75-R-0242, ISSUED BY FRANKFORD ARSENAL, DEPARTMENT OF THE ARMY. KISCO ALLEGES THAT NO OTHER OFFEROR CAN MEET THE RFP REQUIREMENTS OF SUBMISSION OF A FIRST ARTICLE WITHIN 90 DAYS AND DELIVERY OF FIRST MONTH'S REQUIREMENT IN 6-1/2 MONTHS, BECAUSE PAST CONTRACTORS HAVE BEEN DELINQUENT IN FAILING TO MEET SIMILAR REQUIREMENTS, AND ANY OTHER POTENTIAL OFFERORS UNDER THE CURRENT SOLICITATION COULD NOT OBTAIN SPECIAL PURPOSE EQUIPMENT AND TOOLING NECESSARY TO MEET THE REQUIREMENTS. KISCO ALLEGES THAT IT ALONE CAN MEET THE DELIVERY REQUIREMENTS EITHER WITH OR WITHOUT A WAIVER OF THE FIRST ARTICLE REQUIREMENT.

KISCO ALSO EXPRESSES THE VIEW THAT ANY PREAWARD SURVEY WOULD REQUIRE PARTICIPATION BY FRANKFORD ARSENAL PERSONNEL, SINCE PERSONNEL FROM THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR) ACTING ALONE CANNOT PERFORM A PROPER SURVEY. ALSO, KISCO STATES THAT IF IT DOES NOT RECEIVE THE AWARD, THERE WILL BE A LOSS OF MOMENTUM IN MEETING THE GOVERNMENT'S NEEDS FOR AN ESSENTIAL ITEM AND A LOSS OF KISCO'S SKILLED WORKFORCE WHICH IS CURRENTLY PERFORMING THE PREDECESSOR CONTRACT.

KISCO'S PROTEST GOES ESSENTIALLY TO THE QUESTION OF WHETHER ANY OTHER OFFEROR UNDER THE RFP COULD BE FOUND TO BE A RESPONSIBLE PROSPECTIVE CONTRACTOR. IN THIS REGARD, OUR OFFICE HAS DISCONTINUED THE PRACTICE OF REVIEWING BID PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. SUCH DETERMINATIONS ARE LARGELY WITHIN THE DISCRETION OF THE PROCUREMENT OFFICIALS WHO MUST BEAR THE BRUNT OF ANY DIFFICULTIES EXPERIENCED BY REASON OF A CONTRACTOR'S NONRESPONSIBILITY. IF THE CONTRACTING OFFICER IN THE PRESENT CASE FINDS ANOTHER OFFEROR TO BE RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED ABSENT A SHOWING OF FRAUD. SEE MATTER OF TELECTRO SYSTEMS CORP., B-183397, MARCH 21, 1975.

ACCORDINGLY, KISCO'S PROTEST IS NOT FOR CONSIDERATION BY OUR OFFICE. HOWEVER, WE HAVE FORWARDED A COPY OF THE PROTEST TO THE CONTRACTING AGENCY, AND IT IS ASSUMED THAT THE AGENCY WILL CONSIDER KISCO'S VIEWS IN MAKING A PREAWARD SURVEY AND RESPONSIBILITY DETERMINATION.

KISCO ALSO OBJECTS TO THE RFP'S PROVISION THAT PROGRESS PAYMENTS WILL BE AVAILABLE ONLY IF AWARD IS MADE WITH A FIRST ARTICLE REQUIREMENT. SINCE KISCO'S PROTEST WAS FILED SUBSEQUENT TO THE CLOSING DATE FOR BEST AND FINAL OFFERS, THIS OBJECTION IS UNTIMELY, BECAUSE PROTESTS AGAINST APPARENT SOLICITATION IMPROPRIETIES MUST BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SEE 4 C.F.R. SEC. 20.2(A) (1974 ED.).