[Protests of Army Nonresponsibility Determinations]

Two firms protested Army determinations that they were nonresponsible under various solicitations for the repair and renovation of military buildings. GAO noted that: (1) one protester was found nonresponsible based on a preaward survey that concluded that it had an unsatisfactory performance record on past and current government contracts; (2) the other protester was found nonresponsible because it was affiliated with the firm that had unsatisfactory contract performance; and (3) prior to making the nonresponsibility determinations, the contracting officer conducted an investigation into the negative preaward survey findings and determined that there were performance difficulties on six of the eight contracts reviewed. GAO found that: (1) one protester had not proved that the nonresponsibility determination was based on the agency's bad faith; (2) there was a reasonable basis for the preaward survey findings and the contracting officer's decisions; (3) the record was well documented as to the nature and extent of the deficiencies found; and (4) previous preaward survey results did not provide an adequate basis to question subsequent negative responsibility determinations. GAO also found that: (1) a contracting officer's nonresponsibility determination is not reasonable where it is based primarily on a preaward survey team's unreasonable or unsupported conclusions; (2) affiliation is not a consideration in determining responsibility; and (3) there was no indication that the preaward survey included any investigations of the affiliate's own past performance or revealed any information that would adequately support a negative determination. Accordingly, the protests were denied in part and dismissed in part.