[Protest of Proposed GSA Contract Award for Courthouse Construction]
Highlights
A firm protested a General Services Administration (GSA) proposed contract award for courthouse construction, contending that: (1) GSA improperly waived the discrepancy in the awardee's bid bond; and (2) it was unable to adequately compete for award, since it adhered to the bid bond requirement. GAO held that the: (1) contracting officer properly waived the discrepancy in the awardee's bid bond, since its bid bond amount was greater than the difference between its bid and the next low bid; and (2) protester failed to provide evidence that it was prejudiced by its adherence to the bonding requirement. Accordingly, the protest was denied.
B-199058, JUL 1, 1980
DIGEST: PROTEST THAT POTENTIAL AWARDEE WILL NOT DELIVER EQUIPMENT MEETING SPECIFICATIONS WILL NOT BE CONSIDERED SINCE IT INVOLVES CHALLENGE TO CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF AWARDEE'S RESPONSIBILITY, WHICH GAO DOES NOT REVIEW EXCEPT IN CIRCUMSTANCES NOT APPLICABLE HERE.
CLARK DIVISION OF EUCLID DESIGNS & DEVELOPMENT CO.:
THE CLARK DIVISION OF EUCLID DESIGNS AND DEVELOPMENT CO. (EUCLID) PROTESTS THE POSSIBLE AWARD OF A CONTRACT TO BOSTON INSULATED WIRE (BOSTON) UNDER SOLICITATION NO. N00104-80-B-0687, ISSUED BY THE DEPARTMENT OF THE NAVY FOR THE PROCUREMENT OF CABLE ASSEMBLIES MANUFACTURED WITH AN EXTRUDED COVERING OF FLOATATION MATERIAL. EUCLID CONTENDS THAT BOSTON'S EXTRUDED FLOATATION MATERIAL WILL NOT MEET THE SPECIFICATIONS.
EUCLID DOES NOT ASSERT THAT BOSTON IN ITS BID TOOK ANY EXCEPTION TO THE SPECIFICATIONS. RATHER, EUCLID STATES THAT THE GOVERNMENT CANNOT KNOW THAT BOSTON'S MATERIAL WILL MEET THE SPECIFICATIONS BECAUSE THE MATERIAL HAS NEVER BEEN TESTED. BOSTON, HOWEVER, BY SUBMITTING A SIGNED BID HAS COMMITTED ITSELF TO SUPPLYING ITEMS WHICH CONFORM TO THE SPECIFICATIONS. WHETHER BOSTON CAN OR WILL PROVIDE SUCH ITEMS IS A QUESTION WHICH THE CONTRACTING OFFICER MUST DECIDE IN DETERMINING THE RESPONSIBILITY OF BOSTON AS A PROSPECTIVE CONTRACTOR. IN ESSENCE, EUCLID'S OBJECTION IS TO THE NAVY'S POSSIBLE AFFIRMATIVE DETERMINATION THAT BOSTON IS RESPONSIBLE.
WE DO NOT REVIEW AFFIRMATIVE DETERMINATIONS OF BIDDER RESPONSIBILITY, HOWEVER, SINCE THOSE ARE BASICALLY SUBJECTIVE BUSINESS JUDGMENTS. THE ONLY EXCEPTIONS ARE WHERE FRAUD IS ALLEGED ON THE PART OF THE PROCURING AGENCY OR WHERE THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED. AEROSONIC CORPORATION, B-193469, JANUARY 19, 1979, 79-1 CPD 35. NEITHER EXCEPTION APPLIES HERE. CONSEQUENTLY, THIS PROTEST IS NOT FOR OUR REVIEW AND THE PROTEST IS DISMISSED.