B-212426, AUG 25, 1983
Highlights
INVOLVES MATTERS OF RESPONSIBILITY WHICH ARE FOR THE JUDGMENT OF THE CONTRACTING OFFICIALS. THE SOLICITATION IS A TOTAL SMALL BUSINESS SET-ASIDE INVOLVING LABOR. MICROTECH ALLEGES THAT TSI IS NOT ENGAGED IN ANY MICROFILM OR MICROGRAPHIC BUSINESS. THAT TSI DOES NOT HAVE THE ABILITY TO FINANCE THE PERFORMANCE OF THE CONTRACT. THAT TSI'S BID IS LOWER THAN THE COST OF PRODUCTION. THEREFORE ARE TO BE DETERMINED BY THE PROCURING AGENCY'S CONTRACTING OFFICER. THIS OFFICE DOES NOT REVIEW AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY ABSENT A SHOWING THAT IT WAS MADE FRAUDULENTLY OR THAT THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA THAT ALLEGEDLY HAVE NOT BEEN APPLIED. NEITHER CIRCUMSTANCE IS PRESENT IN THIS CASE.
B-212426, AUG 25, 1983
DIGEST: PROTEST CHALLENGING TECHNICAL AND FINANCIAL CAPACITY OF LOW BIDDER AND THE FIRM'S ABILITY TO PERFORM THE CONTRACT AT BID PRICE, INVOLVES MATTERS OF RESPONSIBILITY WHICH ARE FOR THE JUDGMENT OF THE CONTRACTING OFFICIALS. GAO DOES NOT REVIEW AN AFFIRMATIVE DETERMINATION OF A BIDDER'S RESPONSIBILITY.
MICROTECH INDUSTRIES, INC.:
MICROTECH INDUSTRIES, INC. (MICROTECH) PROTESTS THE PROPOSED AWARD OF A DEPARTMENT OF LABOR CONTRACT TO THE LOW BIDDER, TECHNOLOGY SPECIALISTS, INC. (TSI), UNDER SOLICITATION NO. IFB D/L 83-9. MICROTECH ALSO PROTESTS ANY AWARD TO THE SECOND AND THIRD LOW BIDDERS AND REQUESTS THAT THE CONTRACT BE AWARDED TO MICROTECH. WE DISMISS THE PROTEST.
THE SOLICITATION IS A TOTAL SMALL BUSINESS SET-ASIDE INVOLVING LABOR, EQUIPMENT AND MATERIALS TO OPERATE A MICROFORM PRODUCTION FACILITY FOR THE PENSION AND WELFARE BENEFIT PROGRAM OF THE DEPARTMENT OF LABOR. MICROTECH ALLEGES THAT TSI IS NOT ENGAGED IN ANY MICROFILM OR MICROGRAPHIC BUSINESS, THAT TSI DOES NOT HAVE THE ABILITY TO FINANCE THE PERFORMANCE OF THE CONTRACT, AND THAT TSI'S BID IS LOWER THAN THE COST OF PRODUCTION. FURTHER, MICROTECH SPECULATES THAT TSI MUST INTEND TO SUBCONTRACT OUT THE WORK UNDER THE CONTRACT, IN VIOLATION OF THE WALSH-HEALEY ACT, AND THAT THE CONTRACTOR WOULD NOT QUALIFY AS A SMALL BUSINESS IN THAT EVENT.
THE PROTESTER'S FIRST TWO ARGUMENTS, CHALLENGING TSI'S TECHNICAL AND FINANCIAL CAPABILITIES, INVOLVES MATTERS OF RESPONSIBILITY, AND THEREFORE ARE TO BE DETERMINED BY THE PROCURING AGENCY'S CONTRACTING OFFICER. THIS OFFICE DOES NOT REVIEW AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY ABSENT A SHOWING THAT IT WAS MADE FRAUDULENTLY OR THAT THE SOLICITATION CONTAINS DEFINITIVE RESPONSIBILITY CRITERIA THAT ALLEGEDLY HAVE NOT BEEN APPLIED. PLURIBUS PRODUCTS INC., B-210444, MARCH 7, 1983, 83-1 CPD 226. NEITHER CIRCUMSTANCE IS PRESENT IN THIS CASE.
SIMILARLY, THE QUESTION OF WHETHER A BIDDER CAN ADEQUATELY PERFORM THE CONTRACT AT THE BID PRICE DEPENDS ON THE RESPONSIBILITY OF THE BIDDER, AND WILL NOT BE CONSIDERED UNDER OUR BID PROTEST PROCEDURES. JLS SERVCO, B-208655.3, MARCH 2, 1983, 83-1 CPD 219.
MICROTECH'S FINAL TWO ARGUMENTS ARE BASED ON SPECULATION AND, EVEN IF SUBSTANTIATED, WOULD NOT BE WITHIN OUR OFFICE'S BID PROTEST FUNCTION. DO NOT REVIEW ALLEGED VIOLATIONS OF THE WALSH-HEALEY ACT, WHICH BY LAW ARE FOR DETERMINATION BY THE CONTRACTING AGENCY IN THE FIRST INSTANCE, SUBJECT TO FINAL REVIEW BY THE SMALL BUSINESS ADMINISTRATION (IF A SMALL BUSINESS IS INVOLVED) AND THE SECRETARY OF LABOR. J.F.BARTON CONTRACTING CO., B-210663, FEBRUARY 22, 1983, 83-1 CPD 177. OUR OFFICE ALSO DOES NOT CONSIDER MATTERS OF SMALL BUSINESS SIZE STATUS, SINCE CONCLUSIVE AUTHORITY OVER THIS MATTER IS VESTED BY STATUTE IN THE SMALL BUSINESS ADMINISTRATION. ARCATA ASSOCIATES, INC., B-210315, JANUARY 11, 1983, 83-1 CPD 30.
SINCE THE PROTEST AGAINST THE LOW BIDDER IS DISMISSED, WE NEED NOT REACH THE MERITS OF MICROTECH'S PROTESTS AGAINST THE SECOND AND THIRD LOW BIDDERS. EVEN IF THESE PROTESTS WERE SUSTAINED, MICROTECH WOULD NOT BE THE LOW BIDDER AND THEREFORE WOULD NOT BE IN LINE FOR THE AWARD.
THE PROTEST IS DISMISSED.