B-183526, APR 18, 1975

B-183526: Apr 18, 1975

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PROTEST THAT CONTRACTOR IS NONRESPONSIBLE BECAUSE OF LACK OF EQUIPMENT AND FACILITIES TO PERFORM WORK WILL NOT BE CONSIDERED. EXCEPT FOR ACTIONS BY PROCUREMENT OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. THE CONTRACT WAS AWARDED BY THE CONTRACTING ACTIVITY. ALTHOUGH MYERS INITIALLY WAS ADVISED BY OUR OFFICE THAT THE MATTER WOULD BE DEVELOPED WITH THE CONTRACTING AGENCY. UPON FURTHER REVIEW IT APPEARS THAT THE BASIS FOR THE PROTEST IS THAT THE CONTRACTOR IS A NONRESPONSIBLE BIDDER BECAUSE IT POSSESSES NEITHER THE EQUIPMENT NOR THE FACILITIES TO PERFORM THE WORK. MYERS ALSO NOTED THAT THE PRESIDENT OF ONE PRINCIPAL TO THE JOINT VENTURE WAS FORMERLY A CONTRACTING OFFICER WITH DSA. SINCE THE DETERMINATION IS LARGELY WITHIN THE DISCRETION OF THE PROCUREMENT OFFICIALS WHO MUST BEAR ANY DIFFICULTIES EXPERIENCED BY REASON OF A CONTRACTOR'S NONRESPONSIBILITY.

B-183526, APR 18, 1975

PROTEST THAT CONTRACTOR IS NONRESPONSIBLE BECAUSE OF LACK OF EQUIPMENT AND FACILITIES TO PERFORM WORK WILL NOT BE CONSIDERED, SINCE PRACTICE OF REVIEWING PROTESTS AGAINST CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION HAS BEEN DISCONTINUED, EXCEPT FOR ACTIONS BY PROCUREMENT OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD.

MYERS DRUM COMPANY:

MYERS DRUM COMPANY (MYERS) PROTESTED UNDER INVITATION FOR BIDS NO. DSA 400-75-B-2323-0001 AGAINST THE AWARD TO ANOTHER FIRM (A JOINT VENTURE) OF A CONTRACT FOR THE RECONDITIONING OF GOVERNMENT-OWNED STEEL DRUMS. THE CONTRACT WAS AWARDED BY THE CONTRACTING ACTIVITY, THE DEFENSE SUPPLY AGENCY (DSA) DEFENSE GENERAL SUPPLY CENTER, ON MARCH 12, 1974.

ALTHOUGH MYERS INITIALLY WAS ADVISED BY OUR OFFICE THAT THE MATTER WOULD BE DEVELOPED WITH THE CONTRACTING AGENCY, UPON FURTHER REVIEW IT APPEARS THAT THE BASIS FOR THE PROTEST IS THAT THE CONTRACTOR IS A NONRESPONSIBLE BIDDER BECAUSE IT POSSESSES NEITHER THE EQUIPMENT NOR THE FACILITIES TO PERFORM THE WORK. MYERS ALSO NOTED THAT THE PRESIDENT OF ONE PRINCIPAL TO THE JOINT VENTURE WAS FORMERLY A CONTRACTING OFFICER WITH DSA.

OUR OFFICE HAS DISCONTINUED THE PRACTICE OF REVIEWING BID PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A CONTRACTOR, SINCE THE DETERMINATION IS LARGELY WITHIN THE DISCRETION OF THE PROCUREMENT OFFICIALS WHO MUST BEAR ANY DIFFICULTIES EXPERIENCED BY REASON OF A CONTRACTOR'S NONRESPONSIBILITY. IF THE CONTRACTING OFFICER FINDS THE CONTRACTOR RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED EXCEPT FOR ACTIONS BY PROCUREMENT OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. MATTER OF UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, 53 COMP. GEN. 931 (1974).

SINCE FRAUD HAS NOT BEEN ALLEGED OR DEMONSTRATED, WE MUST DECLINE TO CONSIDER THE PROTEST UPON ITS MERITS. MATTER OF EXOTECH SYSTEMS, INC., B- 181416, NOVEMBER 22, 1974. 54 COMP. GEN. . ..END :