B-219031, B-219031.2, JUN 13, 1985, 85-1 CPD 683

B-219031,B-219031.2: Jun 13, 1985

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CONTRACTING OFFICIALS HAVE BROAD DISCRETION AS TO WHETHER OR NOT TO CONDUCT PREAWARD SURVEYS AND TO WHAT DEGREE THEY WILL RELY ON THE SURVEYS. GAO WILL NOT REVIEW AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS THE PROTESTER SHOWS POSSIBLE FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION HAVE NOT BEEN PROPERLY APPLIED. NEWPORT CONTENDS THAT THE PREAWARD SURVEYS OF BOULEVARD WERE APPARENTLY CONDUCTED BY THE DEFENSE CONTRACTING ADMINISTRATION SERVICES (DCAS) PERSONNEL. "ARE NOT TO BE CONSIDERED TECHNICALLY QUALIFIED" TO CONDUCT THESE SURVEYS. NEWPORT IS QUESTIONING THE CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION THAT BOULEVARD IS A RESPONSIBLE CONTRACTOR.

B-219031, B-219031.2, JUN 13, 1985, 85-1 CPD 683

CONTRACTS - NEGOTIATION - PREAWARD SURVEYS - PROPRIETY DIGEST: 1. CONTRACTING OFFICIALS HAVE BROAD DISCRETION AS TO WHETHER OR NOT TO CONDUCT PREAWARD SURVEYS AND TO WHAT DEGREE THEY WILL RELY ON THE SURVEYS, AND GAO WILL NOT REVIEW AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS THE PROTESTER SHOWS POSSIBLE FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION HAVE NOT BEEN PROPERLY APPLIED. CONTRACTS - PROTESTS - ALLEGATIONS - BIAS - UNSUBSTANTIATED 2. THE PROTESTER BEARS A HEAVY BURDEN OF PROOF WHEN ALLEGING BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS; IT MUST SHOW BY VIRTUALLY IRREFUTABLE PROOF THAT THESE OFFICIALS HAD A SPECIFIC OR MALICIOUS INTENT TO INJURE THE PROTESTER.

NEWPORT OFFSHORE LTD.:

NEWPORT OFFSHORE LTD. (NEWPORT) PROTESTS THE AWARD OF TWO CONTRACTS TO BOULEVARD MARINE SERVICES (BOULEVARD) UNDER REQUESTS FOR PROPOSALS (RFP) NOS. N00140-85-R-BA06 AND N00140-85-R-BD45, ISSUED BY THE UNITED STATES NAVAL REGIONAL CONTRACTING CENTER DETACHMENT, NEWPORT, RHODE ISLAND (NAVY).

WE DISMISS THE PROTEST.

NEWPORT CONTENDS THAT THE PREAWARD SURVEYS OF BOULEVARD WERE APPARENTLY CONDUCTED BY THE DEFENSE CONTRACTING ADMINISTRATION SERVICES (DCAS) PERSONNEL, WHO, ACCORDING TO NEWPORT, "ARE NOT TO BE CONSIDERED TECHNICALLY QUALIFIED" TO CONDUCT THESE SURVEYS. ESSENTIALLY, NEWPORT IS QUESTIONING THE CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION THAT BOULEVARD IS A RESPONSIBLE CONTRACTOR.

CONTRACTING OFFICIALS HAVE BROAD DISCRETION AS TO WHETHER OR NOT TO CONDUCT PREAWARD SURVEYS, THE BREADTH OF THE SURVEYS AND THE DEGREE OF RELIANCE TO BE PLACED ON THE SURVEYS. CAROLINA WASTE SYSTEMS, INC., B-215689.3, JAN. 7, 1985, 85-1 CPD PARA. 22. THEREFORE, GAO WILL NOT REVIEW AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS THE PROTESTER SHOWS POSSIBLE FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION HAVE NOT BEEN PROPERLY APPLIED. CAROLINA WASTE SYSTEMS, INC., B-215689.3, SUPRA.

THE PROTESTER BEARS A HEAVY BURDEN OF PROOF WHEN ALLEGING BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS; IT MUST SHOW BY VIRTUALLY IRREFUTABLE PROOF THAT THESE OFFICIALS HAD A SPECIFIC OR MALICIOUS INTENT TO INJURE THE PROTESTER. EBONEX, INC., B-213023, MAY 2, 1984, 84-1 CPD PARA. 495. NEWPORT ASSERTS THAT IT HAD A CONTRACT TO PERFORM PAINTING SERVICES BUT, BEFORE THE EXPIRATION OF THE CONTRACT PERIOD, PERSONNEL FROM BOULEVARD WERE FOUND PERFORMING INTERIOR PAINTING SERVICES WHICH NEWPORT CONTENDS IT SHOULD HAVE PERFORMED. NEWPORT ARGUES THAT THIS INDICATES THE POSSIBILITY OF COLLUSION BETWEEN BOULEVARD AND THE NAVY CONTRACTING PERSONNEL. WE DISAGREE.

FIRST, WE NOTE THAT BOULEVARD HAD BEEN AWARDED A CONTRACT UNDER ONE OF THE SOLICITATIONS PRIOR TO COMMENCING WORK. FURTHER, NEWPORT'S ASSERTION APPEARS TO CONCERN A POSSIBLE DISPUTE RELATING TO NEWPORT'S CONTRACT WITH THE NAVY AND SHOULD BE RESOLVED WITH THE CONTRACTING OFFICER OR, IF THAT IS NOT POSSIBLE, UNDER THE DISPUTES CLAUSE OF THE CONTRACT, RATHER THAN AT GAO. SEE AMPLITRONICS, INC., B-214743, APR. 5, 1984, 84-1 CPD PARA. 384. WE DO NOT BELIEVE THAT THIS POSSIBLE CONTRACT DISPUTE CAN SERVE AS EVIDENCE OF BAD FAITH IN THE CONTRACTING OFFICER'S UNRELATED AFFIRMATIVE DETERMINATION OF BOULEVARD'S RESPONSIBILITY.

SINCE WE FIND THAT NEWPORT'S ARGUMENT OF BAD FAITH IS BASED ON ITS INADEQUATELY SUBSTANTIATED SUSPICIONS, NEWPORT HAS NOT MET ITS BURDEN OF PROOF AND, THEREFORE, THE PROTEST IS DISMISSED PURSUANT TO 4 C.F.R. SEC. 21.2(F)(5) (1985).