B-223577, SEP 16, 1986, 86-2 CPD 308
Highlights
PROTEST CHALLENGING PROPOSED AWARDEE'S ABILITY TO COMPLY WITH SOLICITATION REQUIREMENTS CONCERNS CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF THE AWARDEE'S RESPONSIBILITY WHICH GENERAL ACCOUNTING OFFICE (GAO) WILL NOT REVIEW ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF PROCURING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA MAY NOT HAVE BEEN APPLIED. WHETHER A CONTRACTOR ACTUALLY PERFORMS IN ACCORDANCE WITH SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION WHICH GENERAL ACCOUNTING OFFICE WILL NOT REVIEW. BRUNSWICK CONTENDS THAT PERRY AUSTEN WILL BE UNABLE TO COMPLY WITH THE REQUIREMENTS OF THE SOLICITATION. BIDS WERE RECEIVED FROM BRUNSWICK AND PERRY AUSTEN.
B-223577, SEP 16, 1986, 86-2 CPD 308
CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO - AFFIRMATIVE FINDING ACCEPTED DIGEST: 1. PROTEST CHALLENGING PROPOSED AWARDEE'S ABILITY TO COMPLY WITH SOLICITATION REQUIREMENTS CONCERNS CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF THE AWARDEE'S RESPONSIBILITY WHICH GENERAL ACCOUNTING OFFICE (GAO) WILL NOT REVIEW ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF PROCURING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA MAY NOT HAVE BEEN APPLIED. CONTRACTS - PROTESTS - AUTHORITY TO CONSIDER - CONTRACT ADMINISTRATION MATTERS 2. WHETHER A CONTRACTOR ACTUALLY PERFORMS IN ACCORDANCE WITH SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION WHICH GENERAL ACCOUNTING OFFICE WILL NOT REVIEW.
BRUNSWICK CORPORATION:
BRUNSWICK CORPORATION PROTESTS THE PROPOSED AWARD BY THE ARMY OF A CONTRACT FOR THE REPLACEMENT OF 16 BOWLING LANE BEDS AND APPROACHES AT FORT HUACHUCA BOWLING CENTER TO PERRY AUSTEN INTERNATIONAL, INC. UNDER INVITATION FOR BIDS (IFB) NO. DAEA 18-86-B-0055. BRUNSWICK CONTENDS THAT PERRY AUSTEN WILL BE UNABLE TO COMPLY WITH THE REQUIREMENTS OF THE SOLICITATION. WE DISMISS THE PROTEST.
THE IFB REQUIRES IN PART THAT THE CONTRACTOR PROVIDE AND INSTALL TWO VINYL ON STEEL GUTTERS IN EACH LANE AND VINYL ON STEEL BALL RETURN CAPPING FOR EIGHT SUBSURFACE BALL RETURNS. THE IFB ALSO REQUIRES THAT THE EQUIPMENT AND MATERIALS FURNISHED MATCH THE REMAINING EIGHT LANES. BIDS WERE RECEIVED FROM BRUNSWICK AND PERRY AUSTEN; PERRY AUSTEN SUBMITTED THE LOWER BID.
BRUNSWICK ARGUES THAT PERRY AUSTEN CANNOT COMPLY WITH THE REQUIREMENTS FOR VINYL ON STEEL GUTTERS AND CAPPINGS AND THAT THE LANES WHICH IT OFFERS WILL NOT MATCH THE EXISTING LANES.
SINCE PERRY AUSTEN TOOK NO EXCEPTION TO ANY PROVISIONS OF THE IFB, ITS BID ON ITS FACE IS RESPONSIVE. SEE BENDER SHIPBUILDING & REPAIR CO., INC., B-219629.2, OCT. 25, 1985, 85-2 CPD PARA. 462. BRUNSWICK'S CONTENTION THAT PERRY AUSTEN WILL NOT BE ABLE TO COMPLY WITH THE IFB REQUIREMENTS THUS CONCERNS A MATTER OF BIDDER RESPONSIBILITY, THAT IS, A BIDDER'S ABILITY TO PERFORM ALL THE CONTRACT REQUIREMENTS. NICOLET BIOMEDICAL INSTRUMENTS, B-219234, AUG. 28, 1985, 85-2 CPD PARA. 239. BEFORE AWARDING A CONTRACT, THE CONTRACTING AGENCY MUST FIND THAT THE PROPOSED AWARDEE IS A RESPONSIBLE BIDDER. SEE FEDERAL ACQUISITION REGULATION, 48 C.F.R. SECTION 9.103(B) (1985). OUR OFFICE DOES NOT REVIEW SUCH AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY IN THE ABSENCE OF A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF THE PROCURING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA MAY NOT HAVE BEEN APPLIED. BID PROTEST REGULATIONS, 4 C.F.R. SECTION 21.3(F)(5) (1986); DOMAR INDUSTRIES, B-209861, DEC. 30, 1982, 82-2 CPD PARA. 589. NO SUCH ALLEGATIONS HAVE BEEN MADE HERE. FURTHER, WHETHER A CONTRACTOR ACTUALLY PERFORMS IN ACCORDANCE WITH THE IFB REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION, WHICH WE WILL NOT REVIEW. 4 C.F.R. SECTION 21.3(F)(1); NICOLET BIOMEDICAL INSTRUMENTS, B-219234, SUPRA.
THE PROTEST IS DISMISSED.