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B-214769, JUL 3, 1984, 84-2 CPD 14

B-214769 Jul 03, 1984
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CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO - AFFIRMATIVE FINDING ACCEPTED DIGEST: GAO WILL NOT CONSIDER PROTEST BY THIRD LOW BIDDER THAT NEITHER OF THE TWO LOWEST BIDDERS SATISFIES THE SOLICITATION'S EXPERIENCE REQUIREMENT WHERE THE REQUIREMENT IS NOT A DEFINITIVE RESPONSIBILITY CRITERION AND THE PROTESTER HAS NOT SHOWN POSSIBLE FRAUD OR BAD FAITH BY THE AGENCY. AN AGENCY MUST DETERMINE THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE. ONE ASPECT OF RESPONSIBILITY IS WHETHER THE CONTRACTOR IS EXPERIENCED. BECAUSE RESPONSIBILITY IS ESSENTIALLY A MATTER OF BUSINESS JUDGMENT. THIS OFFICE DOES NOT REVIEW AN AGENCY'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS THE PROTESTER SHOWS POSSIBLE FRAUD OR BAD FAITH BY THE AGENCY OR ALLEGES THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION HAVE NOT BEEN APPLIED.

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B-214769, JUL 3, 1984, 84-2 CPD 14

CONTRACTORS - RESPONSIBILITY - DETERMINATION - REVIEW BY GAO - AFFIRMATIVE FINDING ACCEPTED DIGEST: GAO WILL NOT CONSIDER PROTEST BY THIRD LOW BIDDER THAT NEITHER OF THE TWO LOWEST BIDDERS SATISFIES THE SOLICITATION'S EXPERIENCE REQUIREMENT WHERE THE REQUIREMENT IS NOT A DEFINITIVE RESPONSIBILITY CRITERION AND THE PROTESTER HAS NOT SHOWN POSSIBLE FRAUD OR BAD FAITH BY THE AGENCY.

ALLIANCE PROPERTIES INC.:

ALLIANCE PROPERTIES INC. PROTESTS THE AWARD OF A CONTRACT TO EITHER OF THE TWO LOWEST BIDDERS UNDER INVITATION FOR BIDS (IFB) NO. F23606-84 B- 0005, ISSUED BY WHITEMAN AIR FORCE BASE, MISSOURI, FOR MAINTENANCE OF MILITARY FAMILY HOUSING UNITS. ALLIANCE, THE THIRD LOW BIDDER, CONTENDS THAT NEITHER OF THE TWO LOWEST BIDDERS SATISFIES THE SOLICITATION'S EXPERIENCE REQUIREMENT SINCE EACH LACKS EXPERIENCE DOING THE KIND OF WORK REQUIRED UNDER THE IFB. WE DISMISS THE PROTEST.

THE REGULATIONS PROVIDE THAT PRIOR TO THE AWARD OF A CONTRACT, AN AGENCY MUST DETERMINE THAT THE PROSPECTIVE CONTRACTOR IS RESPONSIBLE. SEE DEFENSE ACQUISITION REGULATION, SEC. 1-902. ONE ASPECT OF RESPONSIBILITY IS WHETHER THE CONTRACTOR IS EXPERIENCED. BECAUSE RESPONSIBILITY IS ESSENTIALLY A MATTER OF BUSINESS JUDGMENT, THIS OFFICE DOES NOT REVIEW AN AGENCY'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY UNLESS THE PROTESTER SHOWS POSSIBLE FRAUD OR BAD FAITH BY THE AGENCY OR ALLEGES THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION HAVE NOT BEEN APPLIED. C.F.R. SEC. 21.3(G) (4) (1984).

IN THIS CASE, THE SOLICITATION PROVIDED AT SECTION L, PARAGRAPH 46, ITEM B(9), THAT THE BIDDER SHOULD HAVE "CORPORATE EXPERIENCE AS DEMONSTRATED BY PAST AND PRESENT CONTRACTS." THE AGENCY HAS DETERMINED THAT THE LOW BIDDER SATISFIES THIS REQUIREMENT. THE PROTESTER HAS MADE NO SHOWING OF POSSIBLE FRAUD OR BAD FAITH BY THE AGENCY, AND THIS GENERALIZED EXPERIENCE REQUIREMENT IS NOT THE TYPE OF SPECIFIC AND OBJECTIVE STANDARD THAT WE HAVE REGARDED AS A DEFINITIVE RESPONSIBILITY CRITERION. COMPARE WATCH SECURITY, INC., B-209149, OCT. 20, 1982, 82-2 CPD PARA. 353 (REQUIREMENT OF SATISFACTORY PERFORMANCE DURING THE ENTIRE 6-MONTH PERIOD PRECEDING ISSUANCE OF THE IFB OF SERVICES SIMILAR IN SCOPE AND TYPE TO THOSE BEING PROCURED). THERE IS THUS NO BASIS FOR US TO CONSIDER THIS MATTER. DISMISS THE PROTEST. AMERICAN ELEVATOR COMPANY, B-213129, DEC. 16, 1983, 83-2 CPD PARA. 700.

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