B-214293, JUL 31, 1984, 84-2 CPD
Highlights
CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION DID NOT LACK ANY REASONABLE BASIS WHEN IT WAS BASED ON NEGATIVE REPORT OF BIDDER'S QUALITY CONTROL SYSTEM. POSITIVE RATINGS - PREVIOUSLY ASSIGNED TO BIDDER FOR PRODUCING PRODUCTS WHICH ARE DIFFERENT FROM ONE BEING PROCURED - ARE NOT CONTROLLING FOR RESPONSIBILITY DECISION MADE IN PROTESTED PROCUREMENT. PRC WAS THE LOW BIDDER FOR ITEMS 3-14. WAS DETERMINED NONRESPONSIBLE. THE PROTEST IS DENIED. GSA'S "QUALITY ASSURANCE SPECIALISTS" VISITED THE PRC FACILITY WHERE THE IFB ITEMS WERE TO BE PRODUCED AND INTERVIEWED PRC'S EMPLOYEES ABOUT THE PERFORMANCE CAPABILITIES OF PRC. THE GSA CONTRACTING OFFICER DETERMINED THAT PRC WAS NOT RESPONSIBLE.
B-214293, JUL 31, 1984, 84-2 CPD
CONTRACTORS - RESPONSIBILITY - ADMINISTRATIVE DETERMINATION - NONRESPONSIBILITY FINDING - SUPPORTED BY RECORD DIGEST: 1. CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION DID NOT LACK ANY REASONABLE BASIS WHEN IT WAS BASED ON NEGATIVE REPORT OF BIDDER'S QUALITY CONTROL SYSTEM, PRODUCTION CAPACITY, AND PURCHASING ABILITY. CONTRACTORS - RESPONSIBILITY - DETERMINATION - FACTORS FOR CONSIDERATION - PREVIOUS RATING, ETC. 2. POSITIVE RATINGS - PREVIOUSLY ASSIGNED TO BIDDER FOR PRODUCING PRODUCTS WHICH ARE DIFFERENT FROM ONE BEING PROCURED - ARE NOT CONTROLLING FOR RESPONSIBILITY DECISION MADE IN PROTESTED PROCUREMENT.
PRODUCTS RESEARCH AND CHEMICAL CORPORATION:
PRODUCTS RESEARCH AND CHEMICAL CORPORATION (PRC) PROTESTS THE REJECTION OF ITS BID AND SUBSEQUENT AWARDS TO OTHER BIDDERS UNDER INVITATION FOR BIDS (IFB) NO. 8CFG-S1-20010, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) FOR "FLIGHT DECK" COMPOUND. PRC WAS THE LOW BIDDER FOR ITEMS 3-14, BUT WAS DETERMINED NONRESPONSIBLE. THE PROTESTER ASSERTS THAT THE GSA IMPROPERLY DETERMINED THE FIRM TO BE NONRESPONSIBLE FOR THIS PROCUREMENT.
THE PROTEST IS DENIED.
BECAUSE OF THE LARGE ESTIMATED DOLLAR VALUE OF THE ANTICIPATED AWARD, GSA REQUESTED A PLANT FACILITIES REPORT (PFR) BE PERFORMED TO DETERMINE WHETHER PRC COULD MEET ALL OF THE SOLICITATION REQUIREMENTS. SUBSEQUENTLY, GSA'S "QUALITY ASSURANCE SPECIALISTS" VISITED THE PRC FACILITY WHERE THE IFB ITEMS WERE TO BE PRODUCED AND INTERVIEWED PRC'S EMPLOYEES ABOUT THE PERFORMANCE CAPABILITIES OF PRC. THE SURVEY TEAM RECOMMENDED THAT PRC NOT BE AWARDED THE CONTRACT BECAUSE IT BELIEVED PRC HAD DEMONSTRATED INADEQUACY IN THE THREE AREAS OF: (1) QUALITY CONTROL SYSTEMS; (2) PRODUCTION CAPACITY; AND (3) PURCHASING ABILITY. BASED ON THE SURVEY TEAM'S RECOMMENDATION, THE GSA CONTRACTING OFFICER DETERMINED THAT PRC WAS NOT RESPONSIBLE.
PRC CONTENDS THAT THE CONTRACTING OFFICER ACTED UNREASONABLY IN FINDING PRC TO BE NONRESPONSIBLE ON THE BASIS OF THE PFR, WHICH IT CLAIMS IS ERRONEOUS ON ITS FACE.
WE HAVE HELD THAT THE DETERMINATION OF AN OFFEROR'S RESPONSIBILITY IS THE DUTY OF THE CONTRACTING OFFICER, WHO, IN MAKING THAT DETERMINATION, IS VESTED WITH A WIDE DEGREE OF DISCRETION AND BUSINESS JUDGMENT. OUR OFFICE WILL NOT QUESTION A NEGATIVE DETERMINATION OF RESPONSIBILITY UNLESS THE PROTESTER CAN DEMONSTRATE A LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION. CERTIFIED TESTING CORPORATION, B-212242, NOV. 8, 1983, 83-2 CPD PARA. 542. MOREOVER, CONTRACTING OFFICIALS MAY RELY ON THE RESULTS OF A PREAWARD SURVEY IN MAKING RESPONSIBILITY DETERMINATIONS, AND THEY HAVE NO OBLIGATION TO MAKE AN INDEPENDENT EVALUATION. SYSTEM DEVELOPMENT CORPORATION, B-212624, DEC. 5, 1983, 83-2, CPD PARA. 644.
BASED ON THE FINDING CONTAINED IN THE PREAWARD SURVEY THAT PRC WOULD BE INCAPABLE OF PERFORMING, THE CONTRACTING OFFICER'S DETERMINATION WAS ADEQUATELY SUPPORTED AND REASONABLE. THE PROTESTER HAS NOT PROVIDED ANY EVIDENCE TO REFUTE THIS DETERMINATION. FURTHER, THERE HAS BEEN NO SHOWING OF BAD FAITH BY THE CONTRACTING OFFICER.
AS TO PRC'S QUALITY CONTROL SYSTEM, THE PFR INSPECTION TEAM FOUND THAT COPIES OF SPECIFICATIONS AND WRITTEN PROCEDURES FOR INSPECTION AND TEST RESULTS WERE NOT AVAILABLE. ALTHOUGH PRC CLAIMS THAT GSA SHOULD HAVE CONTACTED PRC'S "RESEARCH AND DEVELOPMENT LABORATORY" FOR WRITTEN PROCEDURES, IT WAS PRC'S RESPONSIBILITY TO PROVIDE THIS INFORMATION - IF IT EXISTED - TO GSA SINCE THE BIDDER HAS THE BURDEN TO DEMONSTRATE ITS RESPONSIBILITY. SEE FEDERAL PROCUREMENT REGULATIONS (FPR), 41 C.F.R. SEC. 1-1.12.2(C) (1983).
PRC WAS ALSO FOUND INADEQUATE IN TWO OTHER AREAS: PRODUCTION CAPACITY AND PURCHASING ABILITY. WITH REGARD TO PRODUCTION CAPACITY, A DISPUTE EXISTS AS TO THE EXACT ITEM QUANTITY PRC CAN SUPPLY THE CONTRACTING AGENCY. HOWEVER, IN ITS SUBMISSIONS TO OUR OFFICE, THE PROTESTER ADMITS THAT WHILE IT HAS PRODUCED SIMILAR ITEMS IN VOLUME FOR MANY YEARS, IT DOES NOT PRODUCE THE SOLICITATION MATERIAL IN VOLUME. THEREFORE, GSA COULD NOT VERIFY THE PRODUCTION CLAIM. SINCE PRC'S PRODUCTION CAPACITY COULD NOT BE VERIFIED, GSA PROPERLY CONSIDERED THE CAPACITY TO BE INADEQUATE. ALSO, PRC FAILED TO PRESENT WRITTEN CONFIRMATION OF SUPPLIERS' COMMITMENTS TO PROVIDE RAW MATERIALS AND HAS ADMITTED THAT IT PRESENTLY HAS NO FIRM COMMITMENTS FROM SUPPLIERS. GSA CAN PROPERLY REQUIRE THAT THIS INFORMATION BE PROVIDED FOR A RESPONSIBILITY DETERMINATION. SEE FPR, 41 C.F.R. SEC. 1-1.1203-4 (1983), WHICH STATES, IN PERTINENT PART, THAT ACCEPTABLE EVIDENCE OF A BIDDER'S ABILITY TO OBTAIN SUCH THINGS AS RESOURCES SHALL NORMALLY BE AN EXPLICIT COMMITMENT FOR THOSE RESOURCES.
PRC ALSO CONTENDS THAT GSA IGNORED PREVIOUS "CAPABILITY RATINGS" GIVEN THE PROTESTER. WE NOTE THAT THE SURVEYS CONDUCTED INVOLVED PRODUCTS WHICH ARE DIFFERENT FROM THE ONE BEING PROCURED UNDER THE IFB. THEREFORE, WE DO NOT FIND THE RATINGS TO BE CONTROLLING FOR THIS NONRESPONSIBILITY DETERMINATION.
CONSEQUENTLY, WE CANNOT QUESTION THE CONTRACTING OFFICER'S NONRESPONSIBILITY DETERMINATION.
PROTEST DENIED.