Matter of: CDM Federal Programs Corporation File: B-249022 Date: June 23, 1992

B-249022: Jun 23, 1992

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PROCUREMENT Contractor Qualification Responsibility Contracting officer findings Affirmative determination GAO review Whether a low bidder will not be able to perform the contract with the supplier listed on the bid does not concern bid responsiveness. Which is not subject to General Accounting Office review absent a showing of bad faith or fraud by the agency. Or that definitive responsibility criteria may have been misapplied. Which are owned by Calgon Carbon Corporation. Since Metcalf is required to use the Calgon equipment until replacement equipment is operational. Finding that Metcalf's bid was responsive and Metcalf was responsible. CDM essentially argues that either Metcalf's bid is nonresponsive because it did not list Calgon as a manufacturer/supplier of carbon.

Matter of: CDM Federal Programs Corporation File: B-249022 Date: June 23, 1992

PROCUREMENT Contractor Qualification Responsibility Contracting officer findings Affirmative determination GAO review Whether a low bidder will not be able to perform the contract with the supplier listed on the bid does not concern bid responsiveness, but rather relates to bidder responsibility, which is not subject to General Accounting Office review absent a showing of bad faith or fraud by the agency, or that definitive responsibility criteria may have been misapplied.

Attorneys

DECISION CDM Federal Programs Corporation protests the award to Metcalf and Eddy Services, Inc. under invitation for bids (IFB) No. DACW09-91-B- 0011 issued by the Department of the Army, South Pacific Division, Corps of Engineers, for the operation and maintenance of the Stringfellow Pretreatment Plant, Riverside, California, and Richmond Mutual Water Company, Los Elmonte, California. CDM argues that Metcalf's apparent low bid should be rejected because it allegedly cannot meet a material requirement of the IFB.

We dismiss the protest.

The Corps of Engineers issued the IFB on July 15, 1991, and opened bids on August 29. Metcalf submitted the low bid of $9,070,858 and CDM submitted the second low bid of $9,695,135. The IFB required continued use of the current water treatment facilities and equipment, which are owned by Calgon Carbon Corporation, until other equipment can be substituted. The IFB also required bidders to list their carbon manufacturer/supplier. Metcalf's bid listed Northwestern Carbon as its carbon manufacturer/supplier.

On September 10, CDM protested to the Corps of Engineers, alleging that since Calgon only permits use of Calgon carbon in Calgon-owned equipment, and since Metcalf is required to use the Calgon equipment until replacement equipment is operational, Metcalf would not be able to operate the Calgon equipment because Metcalf's bid proposed to use Northwestern supplied carbon. CDM thus argued that Metcalf's bid could not fulfill the requirements of the IFB and should be rejected.

On May 27, 1992, the Corps of Engineers denied CDM's protest, finding that Metcalf's bid was responsive and Metcalf was responsible. The Corps of Engineers found that Metcalf's bid obligated Metcalf to procure use of Calgon's facilities and equipment until Metcalf replaced them.

Furthermore, the Corps of Engineers determined that if Metcalf needed to use Calgon carbon while using Calgon's equipment, then the IFB permitted Metcalf to supplement its carbon manufacturer/supplier list within 15 days of award. CDM protested the Corps of Engineers decision to our Office on June 10. CDM essentially argues that either Metcalf's bid is nonresponsive because it did not list Calgon as a manufacturer/supplier of carbon, or, alternatively, that Metcalf is nonresponsible because it will not be able to operate the Calgon facilities and equipment with Northwestern carbon.

A bid is responsive as submitted when it offers to perform the exact thing called for in the IFB, and acceptance of the bid will bind the contractor to perform in accordance with all the IFB's material terms and conditions. Stay, Inc., B-237073, Dec. 22, 1989, 89-2 CPD Para. 586. Unless something on the face of the bid either limits, reduces or modifies the obligation of the prospective contractor to perform in accordance with the terms of the IFB, the bid is responsive; the determination as to whether a bid is responsive must be based solely on the bid documents themselves as they appear at the time of bid opening. Mobility Sys. and Equip. Co., B-243332, Apr. 25, 1991, 91-1 CPD Para. 412.

CDM does not assert that Metcalf took exception, on the face of its bid, to the requirement that the contractor begin performance using Calgon's facilities and equipment. CDM also does not assert that the IFB itself requires the bidder to use Calgon carbon. Thus, CDM's essential argument is that Metcalf's bid is nonresponsive for not complying with the IFB requirement regarding the identification of carbon suppliers because it has not listed Calgon as a supplier, since, according to CDM, that is the only acceptable source of carbon for use on Calgon equipment.

Generally, a requirement that a bidder list subcontractors in its bid involves a matter of responsibility because it relates to the agency's need to evaluate the subcontractor's qualifications or the bidder's ability to meet equal employment opportunity and minority business requirements. See A. Metz, Inc., B-213518, Apr. 6, 1984, 84-1 CPD Para. 386; Titan Southern States Constr. Corp., B-189844, Nov. 15, 1977, 77-2 CPD Para. 371. Normally, the only time a subcontractor listing requirement will be treated as a matter of responsiveness is when the requirement is intended to prevent "bid shopping," that is, the seeking after award by the prime contractor of lower-priced subcontractors than those originally considered in the prime contractor's bid. Id.

Here, the IFB specifically permits post-bid-opening substitution of the carbon supplier listed on the bid. Thus, it is apparent that the IFB carbon supplier listing requirement is a responsibility matter and is not intended to prevent bid shopping, since it expressly permits the substitution of suppliers after bid opening. See Seaward Corp., B-237107.2, June 13, 1990, 90-1 CPD Para. 552. Accordingly, CDM's contention concerning the absence of Calgon in Metcalf's identification of carbon supplier is not an issue of responsiveness; rather, it is a challenge to Metcalf's responsibility. See Adrian Supply Co., B-239681, Aug. 28, 1990, 90-2 CPD Para. 170, aff'd, Adrian Supply Co.--Recon., 70 Comp.Gen. 208 (1991), 91-1 CPD Para. 79 (where bidder designates a manufacturer in its bid who does not make a product that meets the IFB requirements, and the designation of the manufacturer is for a purpose that concerns the bidder's responsibility, the bid is nonetheless responsive so long as it does not otherwise take exception to the IFB.) A determination that a bidder is capable of performing a contract is based, in large measure, on subjective judgments which generally are not susceptible to reasoned review. Thus, an agency's affirmative determination of a contractor's responsibility will not be reviewed by our Office, absent a showing of possible fraud or bad faith on the part of procurement officials, or that definitive responsibility criteria in the solicitation may have been misapplied. 4 C.F.R. Sec. 21.3(m)(5); King-Fisher Co., B-236687.2, Feb. 12, 1990, 90-1 CPD Para. 177. Since CDM has not alleged fraud or bad faith, and since definitive responsibility criteria are not at issue in this protest, the protest provides no basis for us to review Metcalf's responsibility.

The protest is dismissed.