Mine Safety Appliances Company

B-266025 Jan 17, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest that contracting officer's affirmative determination of responsibility was made with such willful disregard of the prospective awardee's record of prior performance as to constitute bad faith is denied where the record does not support this allegation. MSA alleges that the Army's affirmative determination of Racal's responsibility was made in bad faith. MSA and Racal have been the only providers of these canisters to the Army under the eight contracts awarded since 1989. The most recent contracts have been awarded to Racal. Racal and MSA were the only firms submitting bids in response to this solicitation. Racal was the apparent low bidder. After the contracting officer determined that the firm was responsible. View Decision Matter of: Mine Safety Appliances Company File: B-266025 Date: January 17, 1996 Protest that contracting officer's affirmative determination of responsibility was made with such willful disregard of the prospective awardee's record of prior performance as to constitute bad faith is denied where the record does not support this allegation. Attorneys DECISION Mine Safety Appliances Company (MSA) protests the award of a contract to The Canadian Commercial Corporation/Racal Filter Technologies, Limited under invitation for bids (IFB) No. DAAE20-95-B-0247, issued by the Department of the Army for the production and delivery of gas mask filter canisters. MSA alleges that the Army's affirmative determination of Racal's responsibility was made in bad faith. We deny the protest. The Army issued this solicitation on May 22, 1995, to acquire 472,038 C-2A1 filter canisters for M43 series gas masks. MSA and Racal have been the only providers of these canisters to the Army under the eight contracts awarded since 1989. The most recent contracts have been awarded to Racal, with the last one awarded on June 8, 1992. Racal and MSA were the only firms submitting bids in response to this solicitation, and Racal was the apparent low bidder. After the contracting officer determined that the firm was responsible, Racal was awarded the contract on August 25. This protest followed. MSA contends that Racal has a recent history of seriously deficient contract performance under its prior contracts for these canisters which, the protester asserts, gives rise to a presumption of nonresponsibility under Federal Acquisition Regulation (FAR) Sec. 9.104-3(c) that cannot be overcome in good faith. Before awarding a contract, a contracting officer must make an affirmative determination that the prospective contractor is responsible. FAR Sec. 9.103(b). This determination rests principally within the broad discretion of the contracting officer, who, in making that determination, must of necessity rely on his or her business judgment. Tutor-Saliba Corp., Perini Corp., Buckley & Co., Inc., and O & G Indus., Inc., A Joint Venture, B-255756.2, Apr. 20, 1994, 94-1 CPD Para. 268; Pan Am Aero, B-220486, Oct. 4, 1985, 85-2 CPD Para. 382. We will review an affirmative responsibility determination where it is shown that it may have been made fraudulently or in bad faith. See Bid Protest Regulations, 4 C.F.R. Sec. 21.3(m)(5) (1995). An affirmative determination of responsibility in the light of unfavorable information on the prior performance history of a bidder, in some instances, may reflect on a contracting officer's business judgment, but is not itself evidence of bad faith per se. Gayston Corp.--Recon., B-223090.2, July 25, 1986, 86-2 CPD Para. 115. While a contracting officer must consider deficiencies in past performance when making a responsibility determination, FAR Sec. 9.104-1(c), recent unsatisfactory performance does not automatically require a nonresponsibility determination. Jay Fran Corp., B-217145, Jan. 2, 1985, 85-1 CPD Para. 8. Performance history is but one of several factors the contracting officer should take into account when considering a prospective contractor's responsibility. FAR Sec. 9.104-1; Turbine Engine Servs.--Recon., 64 Comp. Gen. 639 (1985), 85-1 CPD Para. 721. In each case, the contracting officer must make a business judgment as to whether the prior unsatisfactory performance indicates such problems will also be encountered during performance of the contract to be awarded. Fujinon, Inc., B-221815, Jan. 30, 1986, 86-1 CPD Para. 112; Pan Am Aero, supra; Jay Fran Corp., supra. In this regard, the presumption of nonresponsibility in cases where a prospective awardee has recently been "seriously deficient" in contract performance may be rebutted where the contracting officer finds that corrective action has been taken. FAR Sec. 9.104-3(c); see Clyde G. Steagall, Inc. d/b/a Mid Valley Elec., B-237184 et al., Jan. 10, 1990, 90-1 CPD Para.