B-228101.4, Oct 7, 1987, 87-2 CPD 342

B-228101.4: Oct 7, 1987

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Fixed-price bid from a responsible bidder is not legally objectionable and does not provide a basis of protest. The General Accounting Office will not review it absent a showing that such determination may have been made fraudulently or in bad faith or that definitive responsibility criteria in the solicitation were not met. BPC's basis for protest is that the contracting officer acted in bad faith in determining the "definitive responsibilities" of Anti-Pest to perform the pest control services as specified in the solicitation. BPC is questioning the ability of Anti-Pest to perform the contract in compliance with the solicitation's requirements at the prices offered. The fact that a bidder may have submitted a below-cost bid does not provide a sustainable basis of protest.

B-228101.4, Oct 7, 1987, 87-2 CPD 342

PROCUREMENT - Contractor Qualification - Responsibility - Contracting Officer Findings - Affirmative Determination - GAO Review PROCUREMENT - Sealed Bidding - Below-cost Bids - Contract Award - Propriety DIGEST: Agency's acceptance of a below-cost, fixed-price bid from a responsible bidder is not legally objectionable and does not provide a basis of protest. When a contracting officer makes an affirmative determination of responsibility, the General Accounting Office will not review it absent a showing that such determination may have been made fraudulently or in bad faith or that definitive responsibility criteria in the solicitation were not met.

Best Pest Control Co.:

Best Pest Control Co. (BPC) protests the Department of the Army's failure to award it a contract under solicitation No. DAKF-19-87-B-0025, for pest control services at Fort Riley, Kansas. The Army made the award to Anti- Pest Company, Inc. which BPC contends submitted unrealistically low prices. We dismiss the protest.

BPC's basis for protest is that the contracting officer acted in bad faith in determining the "definitive responsibilities" of Anti-Pest to perform the pest control services as specified in the solicitation. BPC is questioning the ability of Anti-Pest to perform the contract in compliance with the solicitation's requirements at the prices offered.

The fact that a bidder may have submitted a below-cost bid does not provide a sustainable basis of protest, Marine Electric Railway Products Division, Inc., B-227308, June 17, 1987, 87-1 CPD Para. 609, nor is there anything legally objectionable in the submission and acceptance of a below-cost offer under a solicitation for a fixed-price contract. firm's ability to perform the contract at the offered price is a matter of responsibility for the contracting agency to determine before award. Our Office does not review an affirmative determination of responsibility absent a showing of possible fraud or bad faith by government officials or that definitive responsibility criteria have not been met. Keyes Fibre Co. B-225509, Apr. 7, 1987, 87-1 CPD Para. 383; see also Land O'Frost, B-225478.2, Mar. 3, 1987, 87-1 CPD Para. 241.

In this connection BPC asserts that the Army acted in bad faith with respect to definitive responsibility criteria by accepting Anti-Pest's allegedly below-cost bid without requiring information from Anti-Pest concerning how it planned to comply with the solicitation's specifications. The protester misconstrues the nature of definitive responsibility criteria.

Definitive responsibility criteria are specific and objective standards, such as a requirement to have a certain specific level of experience, set forth in the solicitation which must be met as a prerequisite to award. These standards are established by the contracting agency to determine a firm's ability to perform, and are in addition to general standards of responsibility. See Quality Transport Services, Inc., B-225611, Mar. 26, 1987, 87-1 CPD Para. 346; see also Consulting and Program Management, B-225369, Feb. 27, 1987, 87-1 CPD Para. 229. Although BPC alleges that the contracting officer's affirmative determination of responsibility was inadequate, it has not shown that the solicitation contained definitive responsibility criteria. In fact, BPC's complaint appears to concern only the general standards of responsibility, such as adequate resources, which are prescribed in the Federal Acquisition Regulation, 48 C.F.R. Sec. 9.104-1 (1986).

The protest is dismissed.