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B-219679, AUG 23, 1985, 85-2 CPD 224

B-219679 Aug 23, 1985
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AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ARE NOT REVIEWABLE ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION MAY NOT HAVE BEEN MET. A SOLICITATION REQUIREMENT THAT THE CONTRACTOR USE PERSONNEL WITH CERTAIN STATED QUALIFICATIONS IS NOT A DEFINITIVE RESPONSIBILITY CRITERION. WHETHER AN AWARDEE ACTUALLY EMPLOYS PERSONNEL WITH THE QUALIFICATIONS SPECIFIED IN A SOLICITATION IS A MATTER OF CONTRACT ADMINISTRATION. WHETHER AND HOW IT IS CAPABLE OF PERFORMING. WE DO NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION MAY NOT HAVE BEEN MET.

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B-219679, AUG 23, 1985, 85-2 CPD 224

CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO AFFIRMATIVE FINDING ACCEPTED DIGEST: 1. AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ARE NOT REVIEWABLE ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION MAY NOT HAVE BEEN MET. A SOLICITATION REQUIREMENT THAT THE CONTRACTOR USE PERSONNEL WITH CERTAIN STATED QUALIFICATIONS IS NOT A DEFINITIVE RESPONSIBILITY CRITERION, BUT RATHER ONLY A PERFORMANCE SPECIFICATION. CONTRACTS - PROTESTS - CONTRACT ADMINISTRATION - NOT FOR RESOLUTION BY GAO 2. WHETHER AN AWARDEE ACTUALLY EMPLOYS PERSONNEL WITH THE QUALIFICATIONS SPECIFIED IN A SOLICITATION IS A MATTER OF CONTRACT ADMINISTRATION, NOT FOR CONSIDERATION UNDER GAO BID PROTEST REGULATIONS.

SATELLITE SERVICES, INC:

SATELLITE SERVICES, INC. PROTESTS THE PROPOSED AWARD OF A CONTRACT TO LOGISTIC SERVICES INTERNATIONAL, INC. UNDER INVITATION FOR BIDS NO. F25600 -85-B-6005, ISSUED BY THE AIR FORCE FOR TRANSIENT AIRCRAFT SERVICES AT OFFUTT AIR FORCE BASE, NEBRASKA.

WE DISMISS THE PROTEST.

SATELLITE CONTENDS THAT WHEN EVALUATING LOGISTIC SERVICES DURING A PREAWARD SURVEY, THE AIR FORCE IMPROPERLY IGNORED A SOLICITATION REQUIREMENT THAT ALL CONTRACT PERSONNEL BE FULLY QUALIFIED TO PERFORM ALL TASKS DESCRIBED IN THE PERFORMANCE WORK STATEMENT. THIS ACTION, SATELLITE ALLEGES, EFFECTIVELY AMENDED THE SOLICITATION AFTER BID OPENING, IN VIOLATION OF APPLICABLE REGULATIONS. THE PROTESTER DOES NOT ALLEGE THAT LOGISTIC SERVICES TOOK EXCEPTION TO ANY PERSONNEL QUALIFICATION REQUIREMENTS IN ITS BID, WHICH THEREFORE APPEARS TO BE RESPONSIVE. THE FIRM'S ABILITY TO PERFORM THE CONTRACT IN ACCORD WITH STATED REQUIREMENTS INVOLVES ITS RESPONSIBILITY, I.E., WHETHER AND HOW IT IS CAPABLE OF PERFORMING. SEE JOHNSON CONTROLS, INC., B-200466, FEB. 20, 1981, 81-1 CPD PARA. 120. WE DO NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY ABSENT A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF CONTRACTING OFFICIALS OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION MAY NOT HAVE BEEN MET. SEE MARKHURD AERIAL SURVEYS. INC., B-210108, JAN. 17, 1983, 83-1 CPD PARA. 51. NEITHER EXCEPTION IS APPLICABLE HERE; SATELLITE HAS NOT MADE THE REQUISITE SHOWING OF POSSIBLE BAD FAITH OR FRAUD ON THE PART OF THE CONTRACTING OFFICIALS, AND THE PROVISION AT ISSUE IS A PERFORMANCE SPECIFICATION, NOT A DEFINITIVE RESPONSIBILITY CRITERION. SEE JOHNSON CONTROLS, INC., B-200466, SUPRA, 81-1 CPD PARA. 120 AT 2.

FURTHERMORE, IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT WHETHER OR NOT A CONTRACTOR PERFORMS ACCORDING TO THE SOLICITATION REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION, NOT REVIEWABLE UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1985). WHETHER LOGISTIC SERVICES MEETS ITS CONTRACTUAL OBLIGATION TO EMPLOY PERSONNEL WHO HAVE THE REQUIRED QUALIFICATIONS WILL THEREFORE BE FOR THE AIR FORCE'S CONSIDERATION IN ADMINISTERING THE CONTRACT, AND WILL NOT AFFECT THE VALIDITY OF THE AWARD, IF OTHERWISE PROPER. SEE MARKHURD AERIAL SURVEYS, INC., B-210108, SUPRA, 83-1 CPD PARA. 51 AT 3.

THE PROTEST IS DISMISSED.

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