Protest of FCC Contract Award

B-203473: Oct 1, 1981

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A firm protested the award of a contract to any firm other than itself under an invitation for bids issued by the Federal Communications Commission (FCC) for computer output microfiche services. The protester contended that the low bidder was not responsible because it had defaulted on a prior contract and had not made any changes which would enable it to perform this contract. The protester also contended that the second low bidder was not capable of performing the contract. Whether a bidder should be awarded a contract in view of a prior contract performance or whether a bidder has the ability to perform the contract are matters relating to the bidder's responsibility, which must be determined by the contract officer prior to award. GAO does not review protests against affirmative determinations of responsibility unless either fraud on the part of the procuring official is shown or the solicitation contains definitive responsibility criteria which allegedly have not been applied. Since neither was the case, GAO declined to consider this contention. The protester also asserted that the third low bidder should have been rejected because its bid was materially unbalanced and because its price for the second option year was so low that the bidder would not be able to perform during that year. However, since this point concerned the third low bid and there was no indication in the record that the agency would reject the two lower bids, this question was not considered by GAO. Although the parties had not raised the matter, GAO found that the solicitation was deficient as it did not include a provision informing bidders that option prices would be evaluated. It did not appear that the omission was prejudicial to any of the bidders as this information was revealed during a prebid conference. However, GAO found no indication in the record that FCC complied with the regulations regarding minimum quantities required and availability of funds prior to evaluating the option prices. In view of this, GAO recommended that the solicitation be canceled and the requirement readvertised.

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