B-218618, MAY 24, 1985, 85-1 CPD 604

B-218618, MAY 24, 1985, 85-1 CPD 604

CONTRACTS - PROTESTS - MOOT, ACADEMIC, ETC. QUESTIONS - FUTURE PROCUREMENTS DIGEST: 1. PROTEST THAT LOW BIDDER IS NOT RESPONSIBLE IS PREMATURE WHERE PREAWARD SURVEY OF POTENTIAL AWARDEE HAS NOT BEEN COMPLETED. IN ANY EVENT, GAO DOES NOT REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY EXCEPT IN LIMITED CIRCUMSTANCES WHICH PROTESTER HAS FAILED TO ESTABLISH HERE. FACT THAT FIRM IS IN BANKRUPTCY PROCEEDINGS AND IS ALLEGED TO HAVE PERFORMED POORLY ON PRIOR CONTRACTS, DOES NOT NECESSITATE A FINDING OF NONRESPONSIBILITY. CONTRACTS - PROTESTS - CONTRACT ADMINISTRATION - NOT FOR RESOLUTION BY GAO 2. WHETHER POTENTIAL AWARDEE WILL BE ABLE TO PERFORM CONTRACT IN ACCORDANCE WITH ALL OF ITS TERMS IS A MATTER OF CONTRACT ADMINISTRATION THAT IS WITHIN THE PURVIEW OF THE CONTRACTING AGENCY AND NOT FOR REVIEW UNDER GAO'S BID PROTEST REGULATIONS. CONTRACTS - PROTESTS - INTERESTED PARTY REQUIREMENT - MISTAKE-IN-BID QUESTIONS 3. GAO WILL NOT CONSIDER ONE FIRM'S COMPLAINT THAT ANOTHER'S BID MAY BE MISTAKEN, AS ONLY THE CONTRACTING PARTIES ARE IN A POSITION TO ASSERT RIGHTS AND BRING FORTH ALL NECESSARY EVIDENCE TO RESOLVE MISTAKE IN-BID QUESTIONS. MOREOVER, THERE IS NOTHING ILLEGAL IN THE GOVERNMENT'S ACCEPTING A BELOW-COST BID SO LONG AS THE BIDDER IS FOUND RESPONSIBLE. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/DATE FOR PROPOSALS 4. PROTEST BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION THAT ARE APPARENT ON THE FACE OF A SOLICITATION IS UNTIMELY WHEN FILED AFTER BID OPENING.

NORFOLK SHIPBUILDING & DRYDOCK CORPORATION:

NORFOLK SHIPBUILDING & DRYDOCK CORPORATION (NORSHIPCO) PROTESTS ANY AWARD OR POTENTIAL AWARD TO BOSTON SHIPYARD CORPORATION (BOSTON) OR ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) N62381-85-B-0026 ISSUED BY THE MILITARY SEALIFT COMMAND, ATLANTIC, COVERING WORK ON THE VESSEL USS MISSISSINEWA. WE DISMISS EACH OF THE PROTEST BASES.

NORSHIPCO PROTESTS THAT BOSTON'S LOW BID IS NOT ACCEPTABLE "BECAUSE WE BELIEVE THAT THEY WERE NEITHER RESPONSIVE TO THE SOLICITATION NOR CAN QUALIFY UNDER ANY MANDATED RESPONSIBILITY QUALIFICATION." NORSHIPCO CONTENDS THAT BOSTON CANNOT BE DEEMED FINANCIALLY RESPONSIBLE SINCE THE FIRM FILED FOR BANKRUPTCY ON OCTOBER 15, 1984. IN ADDITION, NORSHIPCO ALLEGES THAT BOSTON HAS PERFORMED POORLY ON PRIOR CONTRACTS AND LACKS THE SATISFACTORY PERFORMANCE RECORD REQUIRED TO ASSURE BIDDER RESPONSIBILITY. NORSHIPCO THUS CONCLUDES, IN PART, THAT ALTHOUGH THERE HAS NOT YET BEEN ANY FINDING OF RESPONSIBILITY BY THE CONTRACTING OFFICER, "TO THE EXTENT THAT THERE IS, WE BELIEVE THAT SUCH A FINDING MUST CLEARLY BE ONE MADE IN BAD FAITH, FRAUDULENTLY, OR WITH DISREGARD OF SPECIFIC RESPONSIBILITY CRITERIA FOUND WITHIN THE SOLICITATION." ACCORDING TO NORSHIPCO, IF THE LOW BID OF BOSTON IS REJECTED, NORSHIPCO BECOMES THE LOW RESPONSIVE, RESPONSIBLE BIDDER AND IS ELIGIBLE FOR AWARD.

WE FIND THAT THE PROTESTER'S ALLEGATIONS HERE ARE PREMATURE SINCE THE PREAWARD SURVEY OF BOSTON HAS NOT YET BEEN COMPLETED. IN ANY EVENT, THE THRUST OF THE PROTESTER'S ALLEGATIONS INVOLVE THE CONTRACTING OFFICER'S DECISION TO AFFIRMATIVELY DETERMINE THAT BOSTON IS A RESPONSIBLE BIDDER. WE WILL NOT REVIEW SUCH A DETERMINATION, WHICH IS LARGELY A BUSINESS JUDGMENT, UNLESS THE PROTESTER, WHICH BEARS THE BURDEN OF PROVING ITS CASE, SHOWS POSSIBLE FRAUD OR BAD FAITH ON THE PART OF PROCUREMENT OFFICIALS, OR THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA THAT ALLEGEDLY HAVE NOT BEEN APPLIED. SEE SECTION 21.3(F) (5) OF OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F) (5) (1985). THE PROTESTER HAS NOT SHOWN THAT EITHER EXCEPTION APPLIES HERE.

IN THIS REGARD, WE NOTE THAT THE PROTESTER DOES NOT IDENTIFY THE "SPECIFIC" RESPONSIBILITY CRITERIA ALLEGEDLY CONTAINED IN THE SOLICITATION WHICH WOULD BE DISREGARDED WERE AN AWARD MADE TO BOSTON. IN THE ABSENCE OF ANY INDICATION THAT THESE "SPECIFIC" CRITERIA ARE "DEFINITIVE" RESPONSIBILITY CRITERIA AS THAT TERM IS USED IN OUR DECISIONS, THE PROTESTER'S ALLEGATION PROVIDES NO BASIS FOR OUR REVIEW. MOREOVER, THE FACT THAT A BIDDER HAD NOT MET ITS OBLIGATIONS UNDER PRIOR CONTRACTS OR IS UNDERGOING BANKRUPTCY DOES NOT REQUIRE A FINDING OF NONRESPONSIBILITY. NEWGARD INDUSTRIES, INC., B-216272, SEPT. 24, 1984, 84-2 CPD PARA. 337; JAMES S. SCROGGINS & CO., B-213363, APR. 17, 1984, 84-1 CPD PARA. 429.

ALTHOUGH NORSHIPCO GENERALLY ALLEGES THAT BOSTON'S BID IS "NONRESPONSIVE" TO THE IFB'S REQUIREMENTS IT APPEARS THAT THESE ALLEGATIONS ACTUALLY RELATE TO THE FIRM'S RESPONSIBILITY. SEE ALAN SCOTT INDUSTRIES, ET AL., 63 COMP.GEN. 610 (1984), 84-2 CPD PARA. 349. NORSHIPCO'S PREDICTION THAT BOSTON WILL NOT BE ABLE TO PERFORM THE CONTRACT IN ACCORDANCE WITH ALL OF ITS TERMS EITHER RELATES TO BOSTON'S RESPONSIBILITY (BEFORE AWARD) OR IS A MATTER OF CONTRACT ADMINISTRATION (AFTER AWARD), THAT IS WITHIN THE PURVIEW OF THE CONTRACTING AGENCY AND IS NOT ENCOMPASSED BY OUR BID PROTEST FUNCTION. SEE 4 C.F.R. SEC. 21.3(F)(1) (1985); ADVANCED STRUCTURES CORP., B-216102.2, B-216102.3, MAR. 28, 1985, 85-1 CPD PARA. 370.

NORSHIPCO ALSO EXPRESSES THE BELIEF THAT BOSTON'S BID IS SO LOW THAT IT MUST BE IN ERROR. WE WILL NOT CONSIDER ONE FIRM'S COMPLAINT THAT ANOTHER'S BID MAY BE MISTAKEN SINCE ONLY THE CONTRACTING PARTIES, HERE THE GOVERNMENT AND THE FIRM IN LINE FOR AWARD, ARE IN A POSITION TO ASSERT RIGHTS AND BRING FORTH ALL NECESSARY EVIDENCE TO RESOLVE MISTAKE IN-BID QUESTIONS. THE PROTESTER'S SPECULATION THAT BOSTON MUST HAVE MADE A MISTAKE IN PREPARING ITS BID DOES NOT PROVIDE A BASIS FOR PROTESTING THE AWARD AS ANY CLAIM ARISING FROM SUCH A MISTAKE WOULD HAVE TO BE RAISED BY THE MISTAKEN BIDDER. LIBBY CORP., B-218367.2, APR. 10, 1985, 85-1 CPD PARA. 412.

AS TO THE PROTESTER'S ASSERTION THAT BOSTON'S BID WAS UNREASONABLY LOW, WE NOTE THAT EVEN IF THE BID WERE FOUND TO BE BELOW COST IT WOULD NOT PROVIDE A BASIS FOR CHALLENGING THE AWARD. LIBBY CORP., B-218367.2, SUPRA. THERE IS NOTHING ILLEGAL IN THE GOVERNMENT'S ACCEPTANCE OF A BELOW- COST BID SO LONG AS THE BIDDER IS FOUND RESPONSIBLE. WESTERN WASTE MANAGEMENT, B-216392, SEPT. 24, 1984, 84-2 CPD PARA. 344. WHETHER THE BIDDER WILL BE ABLE TO MEET CONTRACT REQUIREMENTS IN LIGHT OF ITS OFFERED PRICE IS A MATTER OF RESPONSIBILITY, AFFIRMATIVE DETERMINATIONS OF WHICH, AS WE STATED ABOVE, OUR OFFICE REVIEWS ONLY IN LIMITED CIRCUMSTANCES.

FINALLY, NORSHIPCO OBJECTS TO THE DELETION OF THE PERFORMANCE BOND REQUIREMENT BY AN AMENDMENT TO THE SOLICITATION 1 WEEK BEFORE BID OPENING AND MAINTAINS THAT PERFORMANCE OF THIS CONTRACT WITHOUT A BOND BY BOSTON WILL NOT BE IN THE BEST FINANCIAL INTERESTS OF THE GOVERNMENT. OUR REGULATIONS REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES THAT ARE APPARENT ON THE FACE OF A SOLICITATION BE FILED BEFORE BID OPENING. SEE 4 C.F.R. SEC. 21.2(A)(1) (1985). HERE THE DELETION OF THE PERFORMANCE BOND REQUIREMENT BEFORE BID OPENING WAS APPARENT ON THE FACE OF THE AMENDED SOLICITATION. SINCE NORSHIPCO DID NOT PROTEST THIS CHANGE UNTIL AFTER IT BID, ITS PROTEST ON THIS BASIS IS UNTIMELY AND WE WILL NOT CONSIDER IT. SEE INTERTWINE, INC., B-215314, JULY 17, 1984, 84-2 CPD PARA. 59.

THE PROTEST IS DISMISSED.