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B-240798, Oct 30, 1990, 90-2 CPD 350

B-240798 Oct 30, 1990
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Highlights

Allegation that low bidder is nonresponsible because it substituted proposed physicians with incumbent contractor's employees prior to award amounts to challenge against contracting officer's affirmative determination of responsibility. Which General Accounting Office will not consider absent specific allegations not present here. Allegation of collusive bidding is a matter for the Justice Department. Will not be considered by the General Accounting Office under its bid protest function. Complains that Delta was unable to supply the required physicians until after bid opening. Was found to be responsive to the solicitation. To perform the contract using MD's physicians is evidence that Delta never intended to provide the physicians it offered in its bid.

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B-240798, Oct 30, 1990, 90-2 CPD 350

PROCUREMENT - Contractor Qualification - Responsibility - Contracting officer findings - Affirmative determination - GAO review DIGEST: 1. Where invitation for bids for physician services required submission of physician qualifications with bid, allegation that low bidder is nonresponsible because it substituted proposed physicians with incumbent contractor's employees prior to award amounts to challenge against contracting officer's affirmative determination of responsibility, which General Accounting Office will not consider absent specific allegations not present here. PROCUREMENT - Bid Protests - Antitrust matters - GAO review 2. Allegation of collusive bidding is a matter for the Justice Department, and will not be considered by the General Accounting Office under its bid protest function.

Attorneys

Medical Directions:

Medical Directions (MD) protests the award of a contract to Delta Contract Services, Ltd. under invitation for bids (IFB) No. DAAB07-90-B C058, issued by the Department of the Army for emergency room physicians at Patterson Army Community Hospital, Fort Monmouth, New Jersey. MD, the incumbent contractor, complains that Delta was unable to supply the required physicians until after bid opening, when it obtained commitments from MD's employees. MD also alleges that Delta engaged in collusive bidding practices with a related firm.

We dismiss the protest.

The IFB required bidders to submit qualifications of proposed physicians with their bids, and required the successful bidder to submit detailed documentation regarding each physician's credentials. Delta's low bid, which contained resumes for seven physicians, was found to be responsive to the solicitation. The agency then asked Delta to submit the detailed credentialing information required by the IFB. Delta responded that, instead of the physicians listed in its bid, it wished to employ the physicians currently working under MD's contract. After the agency verified the current physicians' intent to work for Delta under the new contract, the agency awarded the contract to Delta.

MD argues that Delta's offer, after bid opening, to perform the contract using MD's physicians is evidence that Delta never intended to provide the physicians it offered in its bid, and Delta is therefore nonresponsible. In this regard, MD contends that Delta "received additional time to confirm actual employment of physicians ... by waiting until award."

The physician information requested by the IFB concerned the potential awardee's ability to perform as required, not its obligation to do so. As such, the information concerned bidder responsibility. See DAVSAM Int'l, Inc., B-218201.3, Apr. 22, 1985, 85-1 CPD Para. 462. Delta was found to be responsible here. We will not review a contracting officer's affirmative determination of responsibility absent a showing of possible fraud or bad faith or a failure properly to apply definitive responsibility criteria. 4 C.F.R. Sec. 21.3(m)(5) (1990); ALM, Inc., B-225679.3, May 8, 1987, 87-1 CPD Para. 493. To the extent that MD's protest can be read as alleging bad faith on the part of the agency because it allowed Delta additional time to secure commitments from MD's physicians, allowing this late submission of commitments neither constitutes nor evidences bad faith; information concerning a bidder's responsibility generally may be provided or changed any time prior to award. Adrian Supply Co., B-239681, Aug. 28, 1990, 90-2 CPD Para. 170.

MD also appears to object generally to Delta's hiring of MD's physicians. However, it is neither unusual nor inherently improper for an awardee to recruit and hire personnel employed by an incumbent contractor. Booz, Allen & Hamilton, Inc., B-236476, Dec. 4, 1989, 89-2 CPD Para. 513.

Regarding MD's allegation that Delta engaged in collusive bidding practices with a related firm, we generally do not consider allegations of collusion under our bid protest function as this is for the Justice Department's consideration. The Forestry Ass'n, Inc., B-237225, Oct. 19, 1989, 89-2 CPD Para. 365. Moreover, the allegation is not supported by the record. MD notes that the bid opening official's log contained an entry for a firm called Medi-Call, which is located at the same address and telephone number as Delta, and concludes that there may have been collusion between the two firms. Delta's president, who also operates Medi-Call, explains, and the agency confirms, that Medi Call did not submit a bid; Medi-Call's name was recorded on the list of bidders because Delta's bid was mailed in a Medi-Call envelope, and Delta's name was added to the list once the bid was opened. Indeed, the bid abstract lists a bid from Delta and none from Medi-Call.

The protest is dismissed.

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