B-214924, MAY 23, 1984
Highlights
GAO DOES NOT REVIEW AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS THE PROTESTER SHOWS FRAUD OR BAD FAITH ON THE PART OF PROCUREMENT OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA THAT ALLEGEDLY HAVE NOT BEEN APPLIED. 2. GAO DOES NOT REVIEW WHETHER AN OFFEROR IS A REGULAR DEALER OR MANUFACTURER UNDER THE WALSH-HEALEY ACT. SINCE BY LAW THE MATTER IS FOR THE CONTRACTING AGENCY'S DETERMINATION SUBJECT TO FINAL REVIEW BY THE SMALL BUSINESS ADMINISTRATION (IF A SMALL BUSINESS IS INVOLVED) AND THE SECRETARY OF LABOR. PLURIBUS REQUESTS OUR OFFICE TO INVESTIGATE THE POSSIBILITY THAT CAMTRON IS A BOGUS ORGANIZATION BECAUSE ITS BUSINESS ADDRESS IS A POST OFFICE BOX AND ITS PROPOSED PLACE FOR PERFORMING THE CONTRACT ALLEGEDLY DOES NOT EXIST.
B-214924, MAY 23, 1984
DIGEST: 1. GAO DOES NOT REVIEW AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS THE PROTESTER SHOWS FRAUD OR BAD FAITH ON THE PART OF PROCUREMENT OFFICIALS OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA THAT ALLEGEDLY HAVE NOT BEEN APPLIED. 2. GAO DOES NOT REVIEW WHETHER AN OFFEROR IS A REGULAR DEALER OR MANUFACTURER UNDER THE WALSH-HEALEY ACT, SINCE BY LAW THE MATTER IS FOR THE CONTRACTING AGENCY'S DETERMINATION SUBJECT TO FINAL REVIEW BY THE SMALL BUSINESS ADMINISTRATION (IF A SMALL BUSINESS IS INVOLVED) AND THE SECRETARY OF LABOR.
PLURIBUS PRODUCTS, INC:
PLURIBUS PRODUCTS, INC. (PLURIBUS), PROTESTS THE PROPOSED AWARD OF A CONTRACT TO CAMTRON II (CAMTRON), THE LOW BIDDER UNDER INVITATION FOR BIDS NO. DLA400-84-B-2705, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA. WE DISMISS THE PROTEST.
ESSENTIALLY, PLURIBUS REQUESTS OUR OFFICE TO INVESTIGATE THE POSSIBILITY THAT CAMTRON IS A BOGUS ORGANIZATION BECAUSE ITS BUSINESS ADDRESS IS A POST OFFICE BOX AND ITS PROPOSED PLACE FOR PERFORMING THE CONTRACT ALLEGEDLY DOES NOT EXIST. ALTHOUGH IT ADVISES THAT THE AGENCY HAS INDICATED THAT THE PREAWARD SURVEY ON CAMTRON IS INCOMPLETE, PLURIBUS ALSO REQUESTS THAT WE INVESTIGATE THE POSSIBILITY OF FRAUD IN THE PLANT FACILITY REPORT, COLLUSIVE BIDDING, CONFLICTS OF INTEREST, WHETHER CAMTRON IS A REGULAR DEALER OR MANUFACTURER OF THESE GOODS AND WHETHER IT CAN PERFORM THE CONTRACT AT THE PRICE IT BID.
FIRST, WE POINT OUT THAT OUR OFFICE DOES NOT CONDUCT INVESTIGATIONS IN CONNECTION WITH ITS BID PROTEST FUNCTIONS FOR THE PURPOSE OF ESTABLISHING THE VALIDITY OF A PROTESTER'S ASSERTIONS. EASCO TOOLS, INC., B-212716, SEPTEMBER 16, 1983, 83-2 CPD 338. SECOND, WE FIND THAT THE PROTESTER'S ALLEGATIONS ARE PREMATURE, SINCE THE PREAWARD SURVEY OF CAMTRON HAS NOT YET BEEN COMPLETED. IN ANY EVENT, THE GIST OF THE PROTESTER'S ALLEGATIONS TOUCH ON THE CONTRACTING OFFICER'S DECISION TO AFFIRMATIVELY DETERMINE THAT CAMTRON IS A RESPONSIBLE BIDDER. WE WILL NOT REVIEW SUCH A DETERMINATION, WHICH IS LARGELY A BUSINESS JUDGMENT, UNLESS THERE IS A SHOWING OF POSSIBLE FRAUD OR BAD FAITH ON THE PART OF PROCURING OFFICIALS OR THAT THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH HAVE NOT BEEN APPLIED. SEE REDM CORPORATION, B-211197, APRIL 21, 1983, 83-1 CPD 428; KINGSHEAD CORPORATION, B-207817, JULY 1, 1982, 82-2 CPD 10. THE PROTESTER HAS NOT SHOWN THAT EITHER EXCEPTION APPLIES HERE.
FINALLY, OUR OFFICE DOES NOT CONSIDER QUESTIONS ABOUT WHETHER A BIDDER IS A REGULAR DEALER OR A MANUFACTURER WITHIN THE MEANING OF THE WALSH-HEALEY ACT. BY LAW, SUCH MATTERS ARE FOR DETERMINATION BY THE CONTRACTING AGENCY IN THE FIRST INSTANCE, SUBJECT TO FINAL REVIEW BY THE SMALL BUSINESS ADMINISTRATION (IF A SMALL BUSINESS IS INVOLVED) AND THE SECRETARY OF LABOR. J.F. BARTON CONTRACTING CO., B-210663, FEBRUARY 22, 1983, 83-1 CPD 177.
THE PROTEST IS DISMISSED.