B-225582.2, JAN 13, 1987, 87-1 CPD 55
Highlights
GENERAL ACCOUNTING OFFICE WILL NOT CONSIDER COMPLAINT THAT PROTESTER LOST THE COMPETITION BECAUSE IN PREPARING ITS BID IT USED A HIGH QUOTATION FROM A PROSPECTIVE SUBCONTRACTOR THE PROTESTER LATER DISCOVERED WAS AFFILIATED WITH THE FIRM THAT SUBMITTED THE LOW BID. THEREFORE IS NOT A MATTER TO BE RESOLVED THROUGH THE BID PROTEST PROCESS. DECISION AS TO WHETHER A PROSPECTIVE CONTRACTOR IS RESPONSIBLE IS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER. GAO WILL NOT REVIEW AN AFFIRMATIVE DETERMINATION IN THAT REGARD EXCEPT IN LIMITED CIRCUMSTANCES. BLAIR ASSERTS THAT WHILE PREPARING ITS BID BLAIR WAS CONVINCED BY GENERAL SWITCHGEAR. BLAIR STATES THAT IT DISCOVERED AFTER BID OPENING THAT GENERAL SWITCHGEAR WAS AFFILIATED WITH ESE.
B-225582.2, JAN 13, 1987, 87-1 CPD 55
PROCUREMENT - BID PROTEST - PRIVATE DISPUTES - GAO REVIEW DIGEST: 1. GENERAL ACCOUNTING OFFICE WILL NOT CONSIDER COMPLAINT THAT PROTESTER LOST THE COMPETITION BECAUSE IN PREPARING ITS BID IT USED A HIGH QUOTATION FROM A PROSPECTIVE SUBCONTRACTOR THE PROTESTER LATER DISCOVERED WAS AFFILIATED WITH THE FIRM THAT SUBMITTED THE LOW BID. SINCE THE GOVERNMENT HAD NO PART IN THE SUBCONTRACTOR'S ACTIONS OR THE PROTESTER'S BIDDING DECISION, THE MATTER ESSENTIALLY INVOLVES A DISPUTE BETWEEN PRIVATE PARTIES, AND THEREFORE IS NOT A MATTER TO BE RESOLVED THROUGH THE BID PROTEST PROCESS. PROCUREMENT - CONTRACTOR QUALIFICATION - RESPONSIBILITY - CONTRACTING OFFICER FINDINGS - AFFIRMATIVE DETERMINATION - GAO REVIEW 2. DECISION AS TO WHETHER A PROSPECTIVE CONTRACTOR IS RESPONSIBLE IS WITHIN THE DISCRETION OF THE CONTRACTING OFFICER, AND GAO WILL NOT REVIEW AN AFFIRMATIVE DETERMINATION IN THAT REGARD EXCEPT IN LIMITED CIRCUMSTANCES.
BLAIR ELECTRICAL CONSTRUCTION, INC.:
BLAIR ELECTRICAL CONSTRUCTION, INC., PROTESTS THE AWARD OF A CONTRACT TO ELECTRICAL SYSTEMS ENGINEERING (ESE), THE LOW BIDDER UNDER DEPARTMENT OF THE NAVY INVITATION FOR BIDS (IFB) NO. N62474-86-B-8077. BLAIR ASSERTS THAT WHILE PREPARING ITS BID BLAIR WAS CONVINCED BY GENERAL SWITCHGEAR, A POTENTIAL SUBCONTRACTOR, TO USE GENERAL SWITCHGEAR'S QUOTATION IN LIEU OF A LOWER ONE FROM ANOTHER SUBCONTRACTOR. BLAIR STATES THAT IT DISCOVERED AFTER BID OPENING THAT GENERAL SWITCHGEAR WAS AFFILIATED WITH ESE, AND PROTESTS THAT IT WOULD HAVE SUBMITTED A BID LOWER THAN ESE'S HAD IT USED THE LOWER QUOTATION, I.E., BLAIR WOULD HAVE WON THE COMPETITION BUT FOR THE UNFAIR COMPETITIVE ACTIONS OF GENERAL SWITCHGEAR AND ESE.
WE WILL NOT CONSIDER THE PROTEST. CLEARLY, THE GOVERNMENT HAD NO PART IN GENERAL SWITCHGEAR'S ACTIONS OR IN BLAIR'S DECISION TO USE A HIGHER SUBCONTRACTOR QUOTATION THAT IT OTHERWISE WOULD HAVE. AS SUCH, THE MATTER INVOLVES A DISPUTE BETWEEN PRIVATE PARTIES FOR RESOLUTION THROUGH LITIGATION, NOT THE BID PROTEST PROCESS. SEE MONARCH ENGINEERING CO., B-218374, JUNE 21, 1985, 85-1 CPD PARA. 709; DELROCCO & SONS, INC., B-218314, MAR. 22, 1985, 85-1 CPD PARA. 339.
TO THE EXTENT BLAIR'S ALLEGATION MIGHT HAVE AN IMPACT ON ESE'S ELIGIBILITY FOR AWARD, IT INVOLVES ESE'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR. FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 9.104 (1985). THE DECISION AS TO WHETHER A FIRM IS RESPONSIBLE IS WITH THE DISCRETION OF THE CONTRACTING OFFICER, AND OUR OFFICE WILL NOT REVIEW AN AFFIRMATIVE DETERMINATION IN THAT REGARD EXCEPT IN LIMITED CIRCUMSTANCES. 4 C.F.R. SEC. 21.3(F)(5) (1986).
THE PROTEST IS DISMISSED.