Matter of:Sonic Dry Clean, Inc.

B-275929 Apr 21, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Compliance with statement of work requirements is denied where bid package reasonably provided no basis for contracting officer to question the responsiveness of the bid. The IFB was amended prior to bid opening primarily to change the statement of work and bid schedule. Four bids were received by the amended November 25 bid opening time. Sonic's initial protest contentions relate to the agency's affirmative determination of Moller's responsibility and are based upon telephone conversations before and after award in which an employee of the awardee. Our Office will only review a challenge to an agency's affirmative determination of responsibility where there is a showing of possible bad faith on the part of the agency or that definitive responsibility criteria have not been met. 4 C.F.R. View Decision Matter of: Sonic Dry Clean, Inc. File: B-275929 Date: April 21, 1997 DIGEST Attorneys DECISION Sonic Dry Clean, Inc. protests the award of a contract to James L. Moller under invitation for bids (IFB) No. DAKF04-96-B-0027, issued by the Department of the Army for diesel air-filter cleaning services at Fort Irwin, California. Sonic challenges the agency's affirmative determination of the awardee's responsibility and the responsiveness of the awardee's bid. We deny the protest. The IFB, issued on August 26, 1996, contemplated the award of a firm, fixed-price contract for a base period with 4 option years to the low responsive, responsible bidder. The IFB was amended prior to bid opening primarily to change the statement of work and bid schedule, provide information regarding the filters, and to add/delete certain other solicitation provisions. Four bids were received by the amended November 25 bid opening time. Moller submitted the apparent low bid, including all option years (at $1,323,344.10); Sonic submitted the apparent second low bid (at $1,348,837.50). After conducting an informal survey of Moller's responsibility, which focused primarily on Moller's experience on construction-related contracts performed by his company, Moller Enterprises, the agency awarded a contract to Moller on December 20. This protest followed. Sonic's initial protest contentions relate to the agency's affirmative determination of Moller's responsibility and are based upon telephone conversations before and after award in which an employee of the awardee, apparently pursuing the possibility of awarding a subcontract to Sonic, requested information from the protester about filter cleaning services (and Sonic's filter cleaning abilities) and, the protester alleges, admitted that the awardee had insufficient knowledge of how to perform the required work. Our Office will only review a challenge to an agency's affirmative determination of responsibility where there is a showing of possible bad faith on the part of the agency or that definitive responsibility criteria have not been met. 4 C.F.R. Sec. 21.5(c) (1997); King-Fisher Co., B-236687.2, Feb. 12, 1990, 90-1 CPD Para. 177, at 2. The information furnished by the protester--relating to Moller's seeking a subcontractor to perform the work--does not show that the agency acted in bad faith in making its affirmative determination of responsibility. [1] Upon receipt of the agency's protest report, which included a copy of the Moller bid (not previously available to the protester) and related contract file documents, Sonic amended its protest. Sonic contends that the Moller bid should be rejected as nonresponsive for Moller's failure to adequately acknowledge solicitation amendments, execute the procurement integrity certification, and clearly identify the bidding entity. As stated above, the IFB was amended prior to award primarily to change the statement of work and revise the bid schedule. The amendments submitted with Moller's bid were signed by James T. Ewing, a supervisor employee of James L. Moller, and were dated November 23; the bid, which included the amendments and revised bid schedule, was signed by James L. Moller and was also dated November 23. The protester contends that since Mr. Moller did not sign the amendments himself, the bidder failed to properly acknowledge receipt of the material amendments and the bid must be rejected as nonresponsive. The agency reports, however, that Moller's bid signed by Moller contained the amendments and that the amended bid schedule was completed and submitted with the bid. Consequently, regardless of Ewing's authority, the amendments were constructively acknowledged by the bidder, Moller. Bonded Maintenance Co., Inc., B-235207, July 14, 1989, 89-2 CPD Para. 51,at 6; First Fed. Data Serv., B-216487, Dec. 21, 1984, 84-2 CPD Para. 685,at 2.