B-214850, APR 18, 1984

B-214850: Apr 18, 1984

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DIGEST: PROTEST COMPLAINING THAT BIDS LOWER THAN THE PROTESTER'S WERE BELOW COST IS DISMISSED SINCE A BID MAY NOT BE REJECTED MERELY BECAUSE IT IS TOO LOW AND THE PROTESTER HAS NOT ALLEGED EITHER FRAUD OR BAD FAITH. IN CONNECTION WITH THE CONTRACTING OFFICER'S DETERMINATION THAT ONE OF THE BIDDERS WAS RESPONSIBLE. CONTENDS THAT EACH OF THE FIVE LOWEST BIDS IS BELOW COST AND THAT NONE MAY BE ACCEPTED UNLESS GSA CAN DETERMINE THAT THE BID INCLUDES ALL REQUIRED COSTS. THE SUBMISSION OF A BELOW-COST BID IS NOT ILLEGAL. THE GOVERNMENT CANNOT WITHHOLD AN AWARD MERELY BECAUSE A RESPONSIVE LOW BID IS BELOW COST. WHETHER A BID PRICE IS SO LOW THAT THE BIDDER WILL NOT BE ABLE TO PERFORM THE CONTRACT SATISFACTORILY IS A QUESTION CONCERNING THE BIDDER'S RESPONSIBILITY.

B-214850, APR 18, 1984

DIGEST: PROTEST COMPLAINING THAT BIDS LOWER THAN THE PROTESTER'S WERE BELOW COST IS DISMISSED SINCE A BID MAY NOT BE REJECTED MERELY BECAUSE IT IS TOO LOW AND THE PROTESTER HAS NOT ALLEGED EITHER FRAUD OR BAD FAITH, OR THE MISAPPLICATION OF DEFINITIVE RESPONSIBILITY CRITERIA, IN CONNECTION WITH THE CONTRACTING OFFICER'S DETERMINATION THAT ONE OF THE BIDDERS WAS RESPONSIBLE.

BETA CONSTRUCTION COMPANY:

BETA CONSTRUCTION COMPANY PROTESTS THE AWARD BY THE GENERAL SERVICES ADMINISTRATION (GSA) OF A CONTRACT FOR PLAZA WATERPROOFING OF THE JAMES FORRESTAL BUILDING, WASHINGTON, D.C., TO ANY OF THE FIVE LOWEST BIDDERS UNDER INVITATION FOR BIDS (IFB) NO. GS-11B-28022. BETA, THE APPARENT SIXTH LOW BIDDER, CONTENDS THAT EACH OF THE FIVE LOWEST BIDS IS BELOW COST AND THAT NONE MAY BE ACCEPTED UNLESS GSA CAN DETERMINE THAT THE BID INCLUDES ALL REQUIRED COSTS. WE DISMISS THE PROTEST.

THE SUBMISSION OF A BELOW-COST BID IS NOT ILLEGAL, AND THE GOVERNMENT CANNOT WITHHOLD AN AWARD MERELY BECAUSE A RESPONSIVE LOW BID IS BELOW COST. SEE ELLSWORTH STREET ASSOCIATES, B-213211, OCTOBER 24, 1983, 83-2 CPD 488. WHETHER A BID PRICE IS SO LOW THAT THE BIDDER WILL NOT BE ABLE TO PERFORM THE CONTRACT SATISFACTORILY IS A QUESTION CONCERNING THE BIDDER'S RESPONSIBILITY, A MATTER THAT MUST BE DETERMINED BEFORE AWARD. SEE LUIKART PHOTOGRAPHIC ENTERPRISES, B-213244, OCTOBER 17, 1983, 83-2 CPD 463. THIS OFFICE DOES NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY IN THE ABSENCE OF AN ALLEGATION EITHER OF FRAUD OF BAD FAITH ON THE PART OF PROCUREMENT OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION WERE NOT MET. 4 C.F.R. SEC. 21.3(G)(4) (AS ADDED BY 48 FED.REG. 1931 (1983)).

IN THIS CASE, GSA INFORMS US THAT IT HAS AWARDED THE CONTRACT TO SELECT SERVICES, INC. THIS CONSTITUTES THE AGENCY'S AFFIRMATIVE DETERMINATION THAT THE AWARDEE IS RESPONSIBLE. MARATHON ENTERPRISES, INC., B-213646, DECEMBER 14, 1983, 83-2 CPD 690. SINCE THE PROTESTER HAS NOT ALLEGED EITHER FRAUD OR BAD FAITH BY THE AGENCY OR THAT THE SOLICITATION CONTAINED DEFINITIVE RESPONSIBILITY CRITERIA THAT ANY OF THE FIVE LOWEST BIDDERS, INCLUDING SELECT SERVICES, CANNOT SATISFY, WE DISMISS THE PROTEST. AMERICAN ELEVATOR COMPANY, B-213129, DECEMBER 16, 1983, 83-2 CPD 700.