B-215415, NOV 14, 1984, 84-2 CPD 530

B-215415: Nov 14, 1984

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THIS OFFICE WILL NOT QUESTION A NONRESPONSIBILITY DETERMINATION UNLESS THE PROTESTER DEMONSTRATES BAD FAITH BY THE AGENCY OR A LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION. TRACOR CHALLENGES THE AGENCY'S DETERMINATION THAT TRACOR WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THIS PROCUREMENT. TRACOR'S PAST PERFORMANCE RECORD AND FINANCIAL CAPACITY WERE DETERMINED TO BE ADEQUATE. TRACOR'S PROPOSED STAFFING WAS DEEMED TO BE INADEQUATE TO PERFORM THE REQUIRED WORK. IN DISCUSSIONS BETWEEN NIDA AND TRACOR IT BECAME APPARENT THAT TRACOR WAS UNWILLING TO PROVIDE WHAT NIDA CONSIDERED TO BE REQUIRED AND NECESSARY STAFFING LEVELS UNLESS TRACOR'S BID PRICE COULD BE INCREASED. TRACOR'S UNWILLINGNESS TO PROVIDE NECESSARY STAFFING AT ITS BID PRICE LED NIDA TO DETERMINE THAT TRACOR WAS NOT RESPONSIBLE.

B-215415, NOV 14, 1984, 84-2 CPD 530

CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO - NONRESPONSIBILITY FINDING DIGEST: A CONTRACTING OFFICER HAS BROAD DISCRETION IN DETERMINING A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY, AND THIS OFFICE WILL NOT QUESTION A NONRESPONSIBILITY DETERMINATION UNLESS THE PROTESTER DEMONSTRATES BAD FAITH BY THE AGENCY OR A LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION.

TRACOR JITCO, INC.:

TRACOR JITCO, INC. (TRACOR), PROTESTS THE REJECTION OF ITS LOW BID AND THE AWARD OF A CONTRACT TO BIONETICS CORPORATION UNDER INVITATION FOR BIDS (IFB) NO. 271-84-2003, ISSUED BY THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, NATIONAL INSTITUTE ON DRUG ABUSE (NIDA), FOR ANIMAL CARE AND SUPPORT SERVICES. TRACOR CHALLENGES THE AGENCY'S DETERMINATION THAT TRACOR WAS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THIS PROCUREMENT.

WE DENY THE PROTEST.

TRACOR SUBMITTED THE LOWEST PRICED, RESPONSIBLE BID. IN THE PERFORMANCE OF A PREAWARD SURVEY ON TRACOR, THE AGENCY REQUESTED THAT THE PROTESTER FURNISH REFERENCES FOR PAST PERFORMANCE, FINANCIAL INFORMATION, AND RESUMES AND LETTERS OF COMMITMENT FOR PROPOSED PERSONNEL. TRACOR'S PAST PERFORMANCE RECORD AND FINANCIAL CAPACITY WERE DETERMINED TO BE ADEQUATE; HOWEVER, TRACOR'S PROPOSED STAFFING WAS DEEMED TO BE INADEQUATE TO PERFORM THE REQUIRED WORK. IN DISCUSSIONS BETWEEN NIDA AND TRACOR IT BECAME APPARENT THAT TRACOR WAS UNWILLING TO PROVIDE WHAT NIDA CONSIDERED TO BE REQUIRED AND NECESSARY STAFFING LEVELS UNLESS TRACOR'S BID PRICE COULD BE INCREASED. TRACOR'S UNWILLINGNESS TO PROVIDE NECESSARY STAFFING AT ITS BID PRICE LED NIDA TO DETERMINE THAT TRACOR WAS NOT RESPONSIBLE.

TRACOR ARGUES THAT PARAGRAPH "F-3" OF THE SOLICITATION ESTABLISHED THE NECESSARY STAFFING LEVELS AND THAT NIDA IMPROPERLY INTERPRETED THAT CLAUSE WHEN IT FOUND THAT TRACOR WAS UNWILLING TO MEET THE CONTRACT STAFFING REQUIREMENTS. PARAGRAPH "F-3," IN RELEVANT PART, STATES:

"SERVICES TO BE PERFORMED

"THE CONTRACTOR SHALL FURNISH ANIMAL CARETAKER SERVICES ON A DAILY BASIS (7 DAYS PER WEEK BETWEEN 8:00 A.M. AND 4:30 P.M.) FOR THE ARC EXPERIMENTAL ANIMALS. ADDITIONALLY, THE CONTRACTOR SHALL FURNISH SERVICES DURING OFF HOURS ON AN AS-NEEDED BASIS (E.G., FOR ADMINISTRATION OF THERAPEUTIC MEDICATIONS TO SICK ANIMALS, OR FOR CHRONIC DRUG INJECTIONS IN EXPERIMENTAL ANIMALS). THESE SERVICES SHALL BE PROVIDED BY A STAFF OF ANIMAL CARETAKERS SUFFICIENTLY TRAINED AND QUALIFIED TO PROVIDE COMPREHENSIVE PROFESSIONAL AND HUMANE CARE FOR THE ARC EXPERIMENTAL ANIMAL POPULATION. THE CONTRACTOR SHALL PROVIDE ON THE-JOB SUPERVISION OF THE ANIMAL CARETAKERS. THE SUPERVISOR MUST BE CERTIFIED BY THE AMERICAN ASSOCIATION FOR LABORATORY ANIMAL SCIENCE AT THE REGISTERED LABORATORY ANIMAL TECHNOLOGIST LEVEL; ALL OTHER CONTRACT PERSONNEL INVOLVED IN ANIMAL CARE SERVICES MAY BE (BUT DO NOT NECESSARILY HAVE TO BE) CERTIFIED BY AALAS. TWO OR MORE PERSONNEL FOR PRIMATE CARE SHALL BE ASSIGNED ON A PERMANENT BASIS AND SHOULD HAVE TRAINING WITH PRIMATE SPECIES. THE CONTRACTOR SHALL ALSO PROVIDE FOR THE MAINTENANCE OF ALL ANIMAL CARE EQUIPMENT."

THE CONTRACTING OFFICER CONCLUDED THAT TRACOR WAS NONRESPONSIBLE BECAUSE IT DID NOT PROPOSE TO PROVIDE SUPERVISION OF CARETAKERS 7 DAYS PER WEEK FROM 8 A.M. TO 4:30 P.M., AND IT DID NOT PROPOSE THAT TWO OF THE CARETAKERS WOULD HAVE PRIMATE TRAINING AS REQUIRED BY PARAGRAPH "F 3," ABOVE.

TRACOR CONTENDS THAT UNDER THE TERMS OF THE ABOVE-QUOTED CLAUSE, IT NEED ONLY PROVIDE ONE SUPERVISOR FOR A NORMAL (40-HOUR) WORKWEEK. DISAGREE. THE SOLICITATION IS CLEAR THAT THE CONTRACT SERVICES ARE TO BE PROVIDED BY "ANIMAL CARETAKERS" 7 DAYS PER WEEK BETWEEN THE HOURS OF 8 A.M. AND 4:30 P.M. AND THAT THE "CONTRACTOR SHALL PROVIDE ON-THE-JOB SUPERVISION OF THE ANIMAL CARETAKERS." SINCE THE CLAUSE DOES NOT EXCLUDE THE SUPERVISOR FROM THE 7-DAY REQUIREMENT, WE CONCLUDE THAT TRACOR'S INTERPRETATION WAS INCORRECT.

TRACOR ALSO ARGUES THAT THE SOLICITATION DID NOT MANDATE THAT THE ANIMAL CARETAKERS HAVE EXPERIENCE WITH PRIMATE SPECIES, BUT ONLY THAT THEY "SHOULD" IS INTERPRETED AS "MUST," IT MEETS THIS REQUIREMENT BECAUSE IT DID PROPOSE TWO ANIMAL CARETAKERS WITH THE REQUISITE EXPERIENCE.

TRACOR ARGUES THAT THE SOLICITATION REFLECTS ONLY A PREFERENCE FOR ANIMAL CARETAKERS WITH PRIMATE CARE TRAINING RATHER THAN REQUIRING SUCH TRAINING BECAUSE PARAGRAPH "F-3" STATES THAT CARETAKERS "SHOULD" HAVE TRAINING IN PRIMATE CARE. GIVEN THE CLEAR IMPORTANCE OF PRIMATE IN THE PARAGRAPH, AS WELL AS THE EMPHASIS ON TRAINING, WE FIND THAT THE ONLY REASONABLE INTERPRETATION IS THAT THE STATED PERSONS MUST HAVE TRAINING IN PRIMATE CARE. FURTHER, WHILE TRACOR SAYS IT PROPOSED TWO CARETAKERS WITH PRIMATE TRAINING, THE CONTRACTING OFFICER REPORTS THAT THE STAFF RESUMES SUBMITTED BY TRACOR SHOW ONLY THE ONE SUPERVISOR PROPOSED HAD THE REQUISITE PRIMATE TRAINING.

TRACOR ARGUES THAT THE AGENCY'S REJECTION OF ONE OF ITS PROPOSED ANIMAL CARETAKERS WAS UNREASONABLE, ARBITRARY, AND CAPRICIOUS. WE DO NOT AGREE. THE RESUME OF THE PROPOSED CARETAKER INDICATED THAT SHE HAD NO EXPERIENCE IN THIS AREA OF WORK. THE SOLICITATION REQUIRED THAT THE CARETAKERS BE SUFFICIENTLY TRAINED AND QUALIFIED TO PROVIDE COMPREHENSIVE PROFESSIONAL AND HUMANE CARE FOR THE ANIMAL POPULATION. THE CONTRACTING OFFICER CONCLUDED THAT WHILE THE PROPOSED CARETAKER COULD EVENTUALLY ACQUIRE THE NECESSARY SKILLS, SHE COULD NOT PROVIDE THE NECESSARY ANIMAL CARE SERVICES IN THE EARLY PART OF THE CONTRACT PERIOD. WE FIND THAT THE CONTRACTING OFFICER'S DETERMINATION WAS REASONABLE.

THE REGULATIONS PROVIDE THAT AGENCIES SHALL AWARD CONTRACTS ONLY TO RESPONSIBLE PROSPECTIVE CONTRACTORS. FEDERAL PROCUREMENT REGULATIONS (FPR), 41 C.F.R. SEC. 1-1.1202(A) (1984). RESPONSIBILITY REFERS TO A PROSPECT CONTRACTOR'S ABILITY AND WILLINGNESS TO PERFORM THE CONTRACT. CONTRACTING OFFICER IS REQUIRED TO MAKE A DETERMINATION OF NONRESPONSIBILITY IF THERE ARE DOUBTS CONCERNING A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY. FPR, 41 C.F.R. SEC. 1-1.1202(D) (1984). RESPONSIBILITY DETERMINATION IS ESSENTIALLY A FORECAST BASED ON THE CONTRACTING OFFICER'S HOOD-FAITH EXERCISE OF BUSINESS JUDGMENT. SEE COMMUNITY ECONOMIC DEVELOPMENT CORPORATION, B-211170, AUG. 23, 1983, 83 2 CPD PARA. 235.

A CONTRACTING OFFICER HAS BROAD DISCRETION IN DETERMINING A PROSPECTIVE CONTRACTOR'S RESPONSIBILITY, AND THIS OFFICE WILL NOT QUESTION A NONRESPONSIBILITY DETERMINATION UNLESS THE PROTESTER DEMONSTRATES BAD FAITH BY THE AGENCY OR A LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION. S.A.F.E. EXPORT CORPORATION, B-209491; B-209492, AUG. 2, 1983, 83-2 CPD PARA. 153. FROM OUR REVIEW OF THE RECORD, THERE IS NO EVIDENCE OF BAD FAITH BY THE AGENCY AND WE FIND THAT THE NONRESPONSIBILITY DETERMINATION WAS RATIONALLY BASED.

IN ITS RESPONSE TO THE AGENCY REPORT, TRACOR ARGUES THAT PARAGRAPH "F-3" IS SUBJECT TO MORE THAN ONE INTERPRETATION AND, THEREFORE, DOES NOT ADEQUATELY STATE THE GOVERNMENT'S NEEDS. AS DISCUSSED ABOVE, WE FIND THIS CONTENTION LACKS MERIT.

THE PROTEST IS DENIED.