B-182218, NOV 29, 1974

B-182218, NOV 29, 1974

ALLEGATIONS THAT AWARDEE COULD NOT OBTAIN NECESSARY EMPLOYEES NOR PERFORM WORK AT PRICE BID ARE NOT PROPERLY FOR CONSIDERATION, AS OUR OFFICE HAS DISCONTINUED PRACTICE OF REVIEWING BID PROTESTS OF CONTRACTING OFFICER'S AFFIRMATIVE RESPONSIBILITY DETERMINATION, EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD.

EASTERN HOME BUILDERS AND DEVELOPERS, INC.:

ON JUNE 11, 1974, REQUEST FOR PROPOSALS (RFP) NO. F27604-74-R-0087 WAS ISSUED BY THE PROCUREMENT DIVISION, PEASE AIR FORCE BASE, NEW HAMPSHIRE, SOLICITING PROPOSALS FOR HOUSING MAINTENANCE SERVICES. THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS JUNE 24, 1974, AT WHICH TIME FOUR PROPOSALS HAD BEEN RECEIVED. THE LOW PROPOSAL WAS SUBMITTED BY PROPSERV INCORPORATED (PROPSERV), AND THE HIGHEST PROPOSAL WAS SUBMITTED BY EASTERN HOME BUILDERS AND DEVELOPERS, INC. (EASTERN).

AFTER EVALUATION OF ALL PROPOSALS SUBMITTED, BUT PRIOR TO THE MAKING OF AN AWARD, A PREAWARD SURVEY WAS CONDUCTED BY THE DEFENSE CONTRACTS ADMINISTRATION SERVICES DISTRICT, SPRINGFIELD, NEW JERSEY. THE PREAWARD SURVEY, DATED JULY 5, 1974, RECOMMENDED COMPLETE AWARD TO PROPSERV, THIS RECOMMENDATION BEING BASED ON A THOROUGH ANALYSIS OF BOTH TECHNICAL AND FINANCIAL CAPABILITIES. RELYING UPON THIS INFORMATION, THE CONTRACTING OFFICER MADE AN AWARD TO PROPSERV ON JULY 9, 1974.

BEING AWARE OF THE PROCURING ACTIVITY'S INTENTIONS, EASTERN PROTESTED TO THE DEPARTMENT OF THE AIR FORCE ON JULY 8, 1974, AGAINST AN AWARD BEING MADE TO PROPSERV. THE PROTEST WAS BASED ON THE CONTENTION THAT THE PRICE QUOTED BY PROPSERV WAS TOO LOW TO ACCOMPLISH THE WORK REQUIRED AND THAT NO TRADESMEN IN THE GREATER SPRINGFIELD AREA WERE AVAILABLE AT THE MINIMUM WAGE SET BY THE DEPARTMENT OF LABOR.

BY LETTER DATED AUGUST 27, 1974, EASTERN'S PROTEST WAS DENIED. THE AIR FORCE'S RESPONSE POINTED OUT THAT NOT ONLY WAS PROPSERV FOUND TO BE A RESPONSIBLE OFFEROR, BUT THAT ALL TRADESMEN HAD BEEN HIRED FROM THE WESTOVER AREA AND THAT ALL MATERIALS, SUPPLIES, UTILITIES AND OTHER SUBCONTRACT SERVICES WOULD COME FROM THE WESTOVER AREA. AS A RESULT OF THIS DENIAL, EASTERN PROTESTED TO OUR OFFICE ON SEPTEMBER 16, 1974, ALLEGING THE SAME ISSUES AS PREVIOUSLY CONSIDERED BY THE AIR FORCE. WHILE THE AIR FORCE HAS RAISED THE ISSUE OF THE TIMELY SUBMISSION OF THIS PROTEST, THIS ISSUE IS NOT MATERIAL SINCE FOR THE REASONS THAT FOLLOW WE HAVE DECLINED TO CONSIDER THE PROTEST ON ITS MERITS.

IN ESSENCE, EASTERN'S PROTEST QUESTIONS THE RESPONSIBILITY OF PROPSERV AND ITS ELIGIBILITY FOR THIS AWARD. HOWEVER, OUR OFFICE HAS DISCONTINUED ITS PRIOR PRACTICE OF REVIEWING BID PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR SINCE ANY SUCH DETERMINATION IS LARGELY WITHIN THE DISCRETION OF THE PROCURING OFFICIALS WHO MUST SUFFER ANY DIFFICULTIES EXPERIENCED BY REASON OF THE CONTRACTOR'S NONRESPONSIBILITY. IF PURSUANT TO THE APPLICABLE REGULATIONS THE CONTRACTING OFFICER FINDS THE PROPOSED CONTRACTOR RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED EXCEPT FOR ACTIONS BY PROCURING OFFICIALS WHICH ARE TANTAMOUNT TO FRAUD. (SEE KECO INDUSTRIES, INC. V. UNITED STATES, DECIDED FEBRUARY 20, 1974, UNITED STATES COURT OF CLAIMS NO. 173-69, WHEREIN THE COURT, IN REVIEWING A DISAPPOINTED BIDDER'S CLAIM FOR BID PREPARATION EXPENSES, OBSERVES THAT CRITERIA FOR DETERMINING BIDDER RESPONSIBILITY "ARE NOT READILY SUSCEPTIBLE TO REASONED JUDICIAL REVIEW.") MATTER OF UNITED HATTERS, CAP AND MILLINERY WORKERS INTERNATIONAL UNION, B-177512, JUNE 7, 1974, 53 COMP. GEN. .

ACCORDINGLY, WE MUST DECLINE TO CONSIDER EASTERN'S PROTEST ON ITS MERITS.