B-198909, JUN 5, 1980

B-198909: Jun 5, 1980

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GAO WILL NOT REVIEW PROTEST THAT AWARDEE WILL NOT DELIVER EQUIPMENT MEETING SPECIFICATIONS SINCE IT INVOLVES CHALLENGE TO CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF AWARDEE'S RESPONSIBILITY. WHETHER ITEM BEING FURNISHED BY AWARDEE ACTUALLY COMPLIES WITH CONTRACT SPECIFICATIONS IS MATTER OF CONTRACT ADMINISTRATION WHICH IS THE RESPONSIBILITY OF PROCURING ACTIVITY. NUCLEAR IS IN EFFECT ALLEGING THAT ASTROCOM WAS NOT A RESPONSIBLE BIDDER BECAUSE IT WOULD NOT FURNISH WHAT ITS BID BOUND IT TO FURNISH. THAT IS. OBJECTS TO DLA'S AFFIRMATIVE DETERMINATION THAT ASTROCOM IS RESPONSIBLE. SINCE THOSE ARE BASICALLY SUBJECTIVE BUSINESS JUDGMENTS. UNLESS EITHER FRAUD IS ALLEGED ON THE PART OF THE PROCURING AGENCY OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA WHICH ALLEGEDLY HAVE NOT BEEN APPLIED.

B-198909, JUN 5, 1980

DIGEST: 1. GAO WILL NOT REVIEW PROTEST THAT AWARDEE WILL NOT DELIVER EQUIPMENT MEETING SPECIFICATIONS SINCE IT INVOLVES CHALLENGE TO CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF AWARDEE'S RESPONSIBILITY, WHICH GAO DOES NOT CONSIDER EXCEPT IN CIRCUMSTANCES NOT APPLICABLE HERE. 2. WHETHER ITEM BEING FURNISHED BY AWARDEE ACTUALLY COMPLIES WITH CONTRACT SPECIFICATIONS IS MATTER OF CONTRACT ADMINISTRATION WHICH IS THE RESPONSIBILITY OF PROCURING ACTIVITY, NOT GAO.

NUCLEAR RESEARCH CORPORATION:

NUCLEAR RESEARCH CORPORATION (NUCLEAR) PROTESTS THE AWARD OF CONTRACT NO. DLA900-80-C-2120 TO ASTROCOM CORPORATION (ASTROCOM) BY THE DEFENSE LOGISTICS AGENCY (DLA) FOR THE PROCUREMENT OF HEADSETS. NUCLEAR CONTENDS THAT THE HEADSETS MANUFACTURED BY ASTROCOM DO NOT MEET THE SPECIFICATIONS.

NUCLEAR DOES NOT ALLEGE THAT ASTROCOM'S BID TOOK EXCEPTION TO ANY MATERIAL SPECIFICATION REQUIREMENT. RATHER, NUCLEAR STATES THAT ITS OWN EXAMINATION OF ASTROCOM HEADSETS INDICATES NONCOMPLIANCE WITH VARIOUS SPECIFICATION PROVISIONS. THUS, NUCLEAR IS IN EFFECT ALLEGING THAT ASTROCOM WAS NOT A RESPONSIBLE BIDDER BECAUSE IT WOULD NOT FURNISH WHAT ITS BID BOUND IT TO FURNISH, THAT IS, A QUANTITY OF HEADSETS MEETING THE SPECIFICATIONS, AND OBJECTS TO DLA'S AFFIRMATIVE DETERMINATION THAT ASTROCOM IS RESPONSIBLE.

WE DO NOT REVIEW AFFIRMATIVE DETERMINATIONS OF BIDDER RESPONSIBILITY, HOWEVER, SINCE THOSE ARE BASICALLY SUBJECTIVE BUSINESS JUDGMENTS, UNLESS EITHER FRAUD IS ALLEGED ON THE PART OF THE PROCURING AGENCY OR 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.

MOREOVER, WHETHER THE HEADSETS TO BE FURNISHED BY ASTROCOM COMPLY WITH THE SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION WHICH IS THE RESPONSIBILITY OF THE PROCURING AGENCY, AND NOT THAT OF GAO. THE PERKIN- ELMER CORPORATION, B-193146, AUGUST 6, 1979, 79-2 CPD 80.

FOR THE ABOVE REASONS, THE PROTEST IS DISMISSED.