Request for Reconsideration

A company requested reconsideration of a previous decision which dismissed its protest against the award of two contracts issued by the Defense Logistics Agency. The record showed that the company initially argued that the solicitation could not be properly performed by a firm which did not hold a franchise for automotive parts. GAO dismissed the argument because it does not review protests against affirmative determinations of responsibility unless the protester shows either that the solicitation contained a definitive responsibility criterion which was not applied or that the procuring officials committed fraud. In its reconsideration, the protester asserted that: the tight delivery schedule of the invitation for bids should have been treated as a definitive criterion of responsibility; GAO should find that the contracting officer failed to comply with internal Department of Defense and Army practices and procedures regarding preaward surveys; the contracting officer's noncompliance with applicable regulations constituted fraud or bad faith; and the awardee falsely certified that it was a regular dealer for purposes of the Walsh-Healey Act. GAO held that the delivery schedule is not a definitive responsibility criterion. A definitive responsibility criterion involves a specific and objective standard of responsibility, compliance with which cannot be waived by the contracting officer. Additionally, GAO held that, with regard to the protester's contention that the alleged inadequacy of the preaward survey was evidence of fraud or bad faith by the contracting agency, the record indicated that the surveying activity was asked to determine whether the awardee could furnish the entire line of materials listed in the solicitation within a required delivery schedule and if the awardee had sufficient credit to perform the contract. The preaward survey concluded that the awardee had these capabilities. GAO concluded that the contracting officials did not act fraudulently or in bad faith. Further, regarding the allegation that the awardee falsely certified that it was a regular dealer for purposes of the Walsh-Healey Act, GAO held that it was not its function to determine whether a firm was properly certified under the Act. Accordingly, GAO found no basis to alter its initial decision, which was affirmed.