B-187408, OCTOBER 5, 1976
Highlights
PROTEST THAT CONTRACTOR IS NONRESPONSIBLE BECAUSE OF LACK OF EXPERIENCE. OR FINANCIAL RESOURCES 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 OR THE FAILURE TO APPLY DEFINITIVE RESPONSIBILITY CRITERIA. THE BASIS FOR THE PROTEST IS THE ALLEGATION THAT FERRO AND ITS SUBCONTRACTOR MAY NOT HAVE THE EXPERIENCE. SINCE THESE ALLEGED DEFICIENCIES ARE ALL FACTORS IN A DETERMINATION OF A PROPOSED CONTRACTOR'S RESPONSIBILITY. THE PROTESTER IS. AFFIRMATIVE DETERMINATIONS ARE BASED IN LARGE MEASURE ON SUBJECTIVE JUDGMENTS WHICH ARE LARGELY WITHIN THE DISCRETION OF THE PROCURING OFFICIALS WHO MUST SUFFER ANY DIFFICULTIES RESULTING BY REASON OF A CONTRACTOR'S INABILITY TO PERFORM.
B-187408, OCTOBER 5, 1976
PROTEST THAT CONTRACTOR IS NONRESPONSIBLE BECAUSE OF LACK OF EXPERIENCE, FACILITIES, OR FINANCIAL RESOURCES 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 OR THE FAILURE TO APPLY DEFINITIVE RESPONSIBILITY CRITERIA.
KECO INDUSTRIES, INC.:
KECO, INDUSTRIES, INC., PROTESTS THE PROPOSED AWARD OF A CONTRACT TO FERRO MECHANICAL CORPORATION (FERRO) UNDER SOLICITATION NO. DSA 400-76 B- 3476 ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA. THE BASIS FOR THE PROTEST IS THE ALLEGATION THAT FERRO AND ITS SUBCONTRACTOR MAY NOT HAVE THE EXPERIENCE, FACILITIES, OR FINANCIAL RESOURCES TO PERFORM THE CONTRACT. SINCE THESE ALLEGED DEFICIENCIES ARE ALL FACTORS IN A DETERMINATION OF A PROPOSED CONTRACTOR'S RESPONSIBILITY, THE PROTESTER IS, IN ESSENCE, CHALLENGING THE RESPONSIBILITY OF FERRO.
WHILE IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER HAS AS YET MADE A DETERMINATION AS TO FERRO'S RESPONSIBILITY, IT SHOULD BE NOTED THAT THIS OFFICE DOES NOT REVIEW PROTESTS CONCERNING AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY, ABSENT ALLEGATIONS OF FRAUD ON THE PART OF CONTRACTING OFFICIALS OR OF THE FAILURE TO APPLY DEFINITIVE RESPONSIBILITY CRITERIA. CENTRAL METAL PRODUCTS, INC., 54 COMP.GEN. 66 (1974), 74-2 CPD 64; DATA TEST CORPORATION, 54 COMP.GEN. 499 (1974), 74-2 CPD 365, AFFIRMED 54 COMP.GEN. 715 (1975), 75-1 CPD 138. WHILE WE DO CONSIDER PROTESTS INVOLVING NEGATIVE DETERMINATIONS OF THE PROTESTER'S RESPONSIBILITY IN ORDER TO PROVIDE ASSURANCE AGAINST THE ARBITRARY REJECTION OF BIDS, AFFIRMATIVE DETERMINATIONS ARE BASED IN LARGE MEASURE ON SUBJECTIVE JUDGMENTS WHICH ARE LARGELY WITHIN THE DISCRETION OF THE PROCURING OFFICIALS WHO MUST SUFFER ANY DIFFICULTIES RESULTING BY REASON OF A CONTRACTOR'S INABILITY TO PERFORM.
SINCE THE PROTEST DOES NOT CONTAIN AN ALLEGATION OF FRAUD OR OF THE FAILURE TO APPLY DEFINITIVE RESPONSIBILITY CRITERIA, WE MUST DECLINE TO FURTHER CONSIDER THE MATTER.