B-213321, NOV 7, 1983

B-213321: Nov 7, 1983

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GAO WILL NOT REVIEW CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WHERE THE PROTESTER'S GROUNDS FOR DISPUTING THE DETERMINATION DO NOT SHOW THAT THERE WAS FRAUD OR BAD FAITH ON THE PART OF THE CONTRACTING OFFICIALS OR THAT THERE WERE DEFINITIVE RESPONSIBILITY CRITERIA WHICH HAD BEEN MISAPPLIED. 2. ALLEGATION OF COLLUSIVE BIDDING IS A MATTER FOR THE JUSTICE DEPARTMENT AND NOT FOR CONSIDERATION UNDER GAO'S BID PROTEST FUNCTION. THERE IS NO EVIDENCE. THAT THERE WAS ANY INTENT OR ACTION TAKEN TO COLLUDE WITH OTHERS TO SET PRICES OR RESTRAIN COMPETITION BY INDUCING OTHERS NOT TO BID. 4. IS UNTIMELY SINCE IT INVOLVES AN ALLEGED IMPROPRIETY APPARENT PRIOR TO BID OPENING WHICH MUST BE FILED PRIOR TO BID OPENING.

B-213321, NOV 7, 1983

DIGEST: 1. GAO WILL NOT REVIEW CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY WHERE THE PROTESTER'S GROUNDS FOR DISPUTING THE DETERMINATION DO NOT SHOW THAT THERE WAS FRAUD OR BAD FAITH ON THE PART OF THE CONTRACTING OFFICIALS OR THAT THERE WERE DEFINITIVE RESPONSIBILITY CRITERIA WHICH HAD BEEN MISAPPLIED. 2. ABSENT A FINDING OF NONRESPONSIBILITY, A BELOW-COST BID DOES NOT PROVIDE A BASIS TO CHALLENGE AN AWARD. 3. ALLEGATION OF COLLUSIVE BIDDING IS A MATTER FOR THE JUSTICE DEPARTMENT AND NOT FOR CONSIDERATION UNDER GAO'S BID PROTEST FUNCTION. FURTHER, THERE IS NO EVIDENCE, BASED ON THE FACTS ALLEGED, THAT THERE WAS ANY INTENT OR ACTION TAKEN TO COLLUDE WITH OTHERS TO SET PRICES OR RESTRAIN COMPETITION BY INDUCING OTHERS NOT TO BID. 4. PROTEST THAT SOLICITATION DOES NOT CONTAIN A PERFORMANCE BOND REQUIREMENT, FILED AFTER AWARD, IS UNTIMELY SINCE IT INVOLVES AN ALLEGED IMPROPRIETY APPARENT PRIOR TO BID OPENING WHICH MUST BE FILED PRIOR TO BID OPENING.

PORTLAND MAILING SERVICES, INC.:

PORTLAND MAILING SERVICES, INC. (PORTLAND) PROTESTS THE AWARD OF A CONTRACT TO DATA PROCESSING SERVICES (DPS) UNDER SOLICITATION NO. R6-83 209S ISSUED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE. PORTLAND ALLEGES THAT THE AWARD WAS IMPROPER BECAUSE DPS LACKS THE EXPERIENCE, FINANCIAL CAPACITY, FACILITIES, AND EXPERTISE NECESSARY TO PERFORM THE CONTRACT AND THAT THE CONTRACTING OFFICER FAILED TO INVESTIGATE ADEQUATELY DPS'S REPUTATION AND CAPABILITY. PORTLAND ALSO ASSERTS THAT DPS'S LOW BID PRICE WAS SIGNIFICANTLY BELOW THE BID PRICES OF MORE EXPERIENCED COMPETITORS AND THAT DPS VIOLATED THE SOLICITATION'S CERTIFICATION OF INDEPENDENT PRICE DETERMINATION. IN ADDITION, PORTLAND OBJECTS THAT THE SOLICITATION DID NOT REQUIRE A PERFORMANCE BOND.

WE DISMISS THE PROTEST.

PORTLAND HAS RAISED A NUMBER OF SPECIFIC ALLEGATIONS WHICH IT BELIEVES RAISE DOUBTS REGARDING WHETHER DPS HAS THE ABILITY TO PERFORM THE CONTRACT AND CONTENDS THAT THE CONTRACTING OFFICER SHOULD HAVE CONSULTED WITH THE BETTER BUSINESS BUREAU, THE SMALL BUSINESS ADMINISTRATION AND OTHERS IN ORDER TO ADEQUATELY INVESTIGATE DPS'S CAPABILITY. HOWEVER, AS A GENERAL RULE, A PREAWARD SURVEY IS NOT A LEGAL PREREQUISITE TO AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY, AND THE CONTRACTING OFFICER HAS BROAD DISCRETION IN DETERMINING WHETHER OR NOT TO CONDUCT A PREAWARD SURVEY. HARRIS SYSTEMS OF TEXAS, INC., ET AL., B-208670, B-208809, APRIL 13, 1983, 83-1 CPD 392. BY AWARDING THE CONTRACT TO DPS, THE CONTRACTING OFFICER HAS NECESSARILY MADE AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY. CAPITAL ENGINEERING AND MANUFACTURING COMPANY, B-209315, OCTOBER 22, 1982, 82-2 CPD 365. OUR OFFICE DOES NOT REVIEW PROTESTS AGAINST AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ABSENT AN ALLEGATION OF FRAUD ON THE PART OF PROCURING OFFICIALS, OR OF MISAPPLICATION OF DEFINITIVE RESPONSIBILITY CRITERIA CONTAINED IN THE SOLICITATION. HYBRID ABSTRACTS, B-207083, MAY 24, 1982, 82-1 CPD 488. NEITHER EXCEPTION IS APPLICABLE HERE.

PORTLAND ALLEGES THAT DPS'S BID PRICE IS SO LOW THAT IT CALLS INTO QUESTION DPS'S ABILITY TO PERFORM AT THAT PRICE. HOWEVER, THE QUESTION OF WHETHER A BID PRICE IS TOO LOW ALSO RELATES TO A BIDDER'S RESPONSIBILITY AND, ABSENT A DETERMINATION OF NONRESPONSIBILITY, THE SUBMISSION OF A BELOW-COST BID IS NOT A VALID BASIS UPON WHICH TO CHALLENGE AN AWARD. DADSON CORPORATION, B-210413, JUNE 7, 1983, 83-1 CPD 618.

PORTLAND STATES THAT AT BID OPENING, THE PRESIDENT OF DPS ALLUDED TO THE PRICES OF CERTAIN OTHER COMPANIES WHICH HE HAD EXPECTED TO SUBMIT BIDS UNDER THE SOLICITATION, WHICH PORTLAND ALLEGES INDICATES THAT DPS CONSULTED WITH OTHER FIRMS IN ARRIVING AT ITS PRICE, IN VIOLATION OF THE SOLICITATION'S CERTIFICATION OF INDEPENDENT PRICE DETERMINATION. THE PURPOSE OF THIS CERTIFICATION IS TO ASSURE THAT BIDDERS DO NOT COLLUDE TO SET PRICES OR RESTRICT COMPETITION BY INDUCING OTHERS NOT TO BID, WHICH WOULD CONSTITUTE A CRIMINAL OFFENSE. FURTHER, THERE IS NO EVIDENCE, BASED ON THE FACTS ALLEGED, THAT THERE WAS ANY INTENT OR ACTION TAKEN BY DPS TO COLLUDE WITH OTHERS TO SET PRICES OR RESTRAIN COMPETITION BY INDUCING OTHERS NOT TO BID. IN ANY EVENT, THE ALLEGED CONDUCT CONCERNS THE POSSIBLE VIOLATION OF A CRIMINAL STATUTE WHICH IS A MATTER FOR THE JUSTICE DEPARTMENT AND WHICH WE WILL NOT CONSIDER UNDER OUR BID PROTEST PROCEDURES. NORTHWEST JANITORIAL SERVICE, B-203258, MAY 28, 1981, 81-1 CPD 420.

FINALLY, PORTLAND'S ALLEGATION THAT THE CURRENT SOLICITATION FAILS TO REQUIRE A PERFORMANCE BOND, WHICH WAS REQUIRED UNDER LAST YEAR'S SOLICITATION, IS UNTIMELY. OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2(B)(1) (1983), REQUIRE THAT PROTESTS BASED ON SOLICITATION IMPROPRIETIES APPARENT PRIOR TO BID OPENING MUST BE FILED (RECEIVED) IN OUR OFFICE PRIOR TO BID OPENING. SINCE PORTLAND'S PROTEST WAS NOT FILED UNTIL AFTER AWARD, WE WILL NOT CONSIDER THE MERITS OF THIS ISSUE. GAS TURBINE CORPORATION, B-210411, MAY 25, 1983, 83-1 CPD 566.

WE DISMISS THE PROTEST.