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Decision

Matter of: TeleLink Research, Inc.

rile: B-247052

Date: April 28, 1992

Jacob B, Pomnpan, Esq., and Seymour Copperman, Esq,, Pompan,Ruffner & Bass, for the protester,Lori S. Chofnas, Esq., and Jonathan Kosarin, Esq., Office ofthe General Counsel, Department of the Navy, for the agency.Robert C, Arsenoff, Esq., and John Brosnan, Esq., Office ofthe General Counsel, GAO, participated in the preparation ofthe decision.

DIGEST

1 Challenge to awardee's small business size status isdismissed since it is a matter exclusively for review by theSmall Business Administration.

2, Protest allegations based on information obtained in thenotice of award and at a debriefing are dismissed asuntimely since they were not filed within 10 working daysafter the debriefing; protester is not entitled to wait anadditional 10 days to file its protest from the time itreceives written materials which confirm matters earlierdisclosed at the debriefing,

3. The awardee's failure to provide letters df commitmentidentifying current salary levels which were to be used forcost realism purposes did not affect the validity of theagency's cost realism analysis where the agency had anadequate basis to, and did, confirm the realism of proposedsalary rates for the key personnel involved.

4. Protest alleging that awardee did not have permission ofan individual to use his resume in an initial proposal isdenied where the record shows that the individual haddiscussed employment with a proposed subcontractor and hadsigned a letter of acceptance as a result of thatdiscussion.

5. Protest alleging that awardee knew or should have knownthat a key individual propLted in its initial and best andfinal offer (BAFO) became unavailable for employment priorto submission of the BAEO is denied where the recordsupports a conclusion that the awardee and its subcontractorreasonably believed the individual was still available on

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the b&sis of a prior commitment to the awardee'ssubcontractor,

6, Argument that agency failed to consider the bankruptcyof awardee's subcontractor is dismissed since it involves anaffirmative determination of responsibility and the recorddoes not show that the determination was the product offraud or bad faith,

DECISXON

TeleLink Research, Inc. (TLR) protests the award of a cost-plus-fixed-fee contract to ACI Technologies, Inc. underrequest for proposals (RFP) No, N00140-91-R-BB01, issued asa set-aside for small disadvantaged businesses by theDepartment of the Navy for computer logistics services.TeleLink principally argues that the evaluation process wasflawed because the awardee proposed key personnel that itdid not intend to use in contract performance and that theagency failed to consider the bankruptcy of one of theawardee's proposed subcontractors.

We dismiss the protest in part and deny it in part.

BACKGROUND

The REP was issued on November 1, 1990, and, as amended,required initial proposals to be submitted by February 11,1991. Award was to be made to the offeror whose proposalwas determined to be most advantageous to the governmentbased on an evaluation of five technical factors which were,in combination, to be more important than cost. The factorslisted in order of importance are as follows:

(1) Technical Approach(2) Personnel Resources(3) Management Approach(4) Corporate Resources(5) Facilities

Offerors were required to submit resumes for 11 keypersonnel in the following 6 labor categories under thepersonnel resources factor':

'The RFP set f'rth detailed experience and education rrequirements that personnel proposed for each category mustmeet in order to be considered acceptable. Each laborcategory was considered to be of equal importance in theevaluation of the personnel resources factor and, incategories involving multiple positions, each position wasconsidered to be of equal importance within the category.

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Position No. of Resumes

Program Manager 1Senior Logistics Analyst 1Electrical Engineer I (EEI) 1Electrical Engineer II (EEII) 1Engineering Technician I (ETI) 2Engineering Technician II (ETII) 5

Offerors were also to propose nonkey personnel within thesecategories. As with all of the factors, personnel resourceswas graded on the basis of highly acceptable, acceptable orunacceptable' and was not point scored,

The RFP did nct require employment commitments to besubmitted with the technical proposals however, costproposals were to contain letters of commitment statingsalary figures for key personnel not in the employ of theofferor, which were to be considered as part of a costrealism analysis,

Eight initial proposals were received. ACI and TLR wereamong four offerors determined to be within the competitiverange, TLR was rated as acceptable for all the technicalfactors. ACI was rated as acceptable for all technicalfactors except personnel resources; for that factor ACI wasrated unacceptable but capable of being made acceptablebecause five of its proposed key personnel lacked requisiteexperience.

Indirect and labor rate information was'obtained fromDefense Contract Audit Agency (DCAA) offices associated witheach offeror and each of its subcontractors. Proposed laborrates were compared to the DCAA information and Departmentof Labor (DOL) wage rates for labor categories subject tothe Service Contract Act and/or to salary informationcontained in the commitment letters, As a result, bothACI's' and TLR's proposed costs were adjusted upward.

Technical and cost discussions were conducted; best andfinal offers (BAFO) were received on August 30. ACIsubmitted five substitute resumes: one for the programmanager position and one for the EEII position, to be filledby ACI itself; onie for the EEI position to be filled byCDI--a subcontractor; and one each for the ETI and ETIIpositions to be filled by QSOFT--another subcontractor of

2Within the unacceptable rating, a factor could be rated asunacceptable but capable of being made acceptable throughdiscussions or unacceptable and not capable of being madeacceptable.

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ACI, All of the substitutes were rated acceptable in thefinal evaluation,

The BAFOs were reviewed for cost realism and ACI's and TLR'sfinal proposed costs plus fees were determined to berealistic, ACI offered $7,569,375 and TLR offered$7,770,854. The contracting officer concluded that theproposals of ACI and T'.R were acceptable under each of thefive technical evaluation factors and determined that therewas no meaningful technical distinction between them,Therefore, the agency selected ACI--the firm which proposedthe lowest cost--as representing the best value to thegovernment.

By letter dated September 23, TLR was advised that ACI wasbeing considered for award and was advised that anychallenge to its small business size status had to be filedby September 27, No challenges were received and, onSeptember 30, award was made. TLR was advised of the awardon October 2/ the notice of award contained ACI's finalevaluated costs.

On October 7, ACI requested approval to replace three of itsproposed key personnel. Its request was accompanied byresumes for each of the proposed replacements. The resumeswere reviewed and, pursuant to the contract clausepermitting substitution of key personnel with individualsdetermined by the agency to be as qualified as those whothey were replacing, ACI was permitted to replace its ownSenior Logistics Analyst and an ETI and ETII from CDI.

On the same day, TLR was debriefed and informed that bothits proposal and ACI's had been found to be acceptable. OnOctober 9, TLR requested additional evaluation informationunder the Freedom of Information Act (FOIA); thatinformation was received on December 6. This protestfollowed on December 19.

SMALL BUSINESS

In its initial protest submission TCR alleged, among otherthings, that ACI was not a small business, The record showsthat the protester was advised that ACI was being consideredfor award on September 23 and that challenges to the firm'ssmall business status had to be filed by September 27. Therecord further shows that TLR chose not to challenge theproposed awardee's small business status at that time. Wedismiss the allegation because size status challenges arefor review solely by the Small Business Administration, notthis Office. Bid Protest Regulations, 4 C.F.R. § 21.3(m)(2)(1992)

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TIMELINESS

The protester also alleged that a number of the keypersonnel proposed by the awardee and evaluated by the Navywere not performing under the contract and that this showsthat ACI had proposed the individuals without intending tohave them perform, TLR further alleged that the proposalswere not evaluated in accordance with the criteria set forthin the RFV, that technical leveling may have occurred duringdiscussions and that the agency's cost realiom analysis wasdefective, These allegations are based on TL31s assertionsthat its proposal was technically superior to ACI's and thatthe slight difference in evaluated cost between thecompeting proposals should not have been a factor in theaward decision, We find all of these issues to be untimelyexcept those concerning the proposal of key individuals thatwere not intended to be used,

All of the untimely issues are conclusions drawn from TLR'sknowledge of the difference between its own evaluated costsand ACI's and its belief that its proposal was technicallysuperior to ACI's, The difference in evaluated costs wasevident to TLR on October 2 when it was informed of theaward to ACI; the fact that the Navy considered bothproposals acceptable was-conveyed to TLR in the oraldebriefing held on October 7, Thus, TLR was required by ourRegulations to file its protest on these issues within10 working days of the debriefing--the time it knew orshould have known the bases of these protest issues.4 CFR, § 21,2 (a)(2) (1992). The protest was not fileduntil December 19,

We find TLR's argument that it did not know tne bases forthese protest issues until December 6 when it receivedevaluation and source selection materials requested underFOIA to be unpersuasive,3 A protest based upon informationprovided to the protester at a debriefing 43: untimely iffiled more than 10 working days after the debrieftng. The10-day filing requirement does not allow a protester 10 daysfrom the date of its receipt of written confirmation of the

. .

3TLR rests its timeliness argument on the assertion thatthis information revealed to it for the first time thatACI's initial proposal had been rated as unacceptable, Wefail to appreciate the significance of this argument sinceACI was entitled to improve its rating through discussionsand since the principal basis of the protester's untimelyallegations is simply its belief that its own technicalcapabilities are superior to ACI's,

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information furnished it through the debriefing, EmpireState Med. Scientific and Educ. Found., Inc., B-238012,2,Mar, 9, 1990, 90-1 CPD 9 261.

While the receipt of the information requested after thedebriefing may have provided TLR with an opportunity to morefully respond to the areas in which it disagreed with theagency's evaluation and the agency's conduct of theprocurement, such a detailed response was not required inorder to file the protest. Our Regulations provide ampleopportunity for the protester to respond to the agency'sposition; however, as an initial matter it was important forthe protester to timely file a protest once it knew thebases for the its protest issues. Empire State Med.Scientific and Educ. Found., Inc., supra, Since TLR waiteduntil December to file, the issues are dismissed asuntimely,

PROTEST AND ANALYSIS

The protest issues that we consider to be timel y--which arealso the only issues developed in TLR's submissionsfollowing its receipt of the agency report--involve twoprincipal allegations: (1) ACI proposed key personnel thatit did not intend to use; and, (2) the Navy failed toconsider the bankruptcy of QSOFT, subcontractor to ACI, inits evaluation of the awardee's proposal--an issue which wasfirst made apparent to TLR upon its receipt of the agencyreport.

Personnel

In connection with ACI's proposed personnel the protesterprincipally alleges that: (a) in its initial proposal theawardee failed to supply adequate commitment letters for thethree employees to be supplied by QSOFT and that no lettersof commitment were supplied for the five key personnel whowere first proposed in ACI's BAFO; (b) two of the fourpersonnel proposed directly by ACI are not performing underthe contract; and (c) through QSOFT, the awardee proposed tosupply a technician (ETII) without the individual'spermission. It is TLR's contention that these allegedactions compromised the results of the technical and costevaluations.

Letters of Commitment

TLR argues that the technical and cost evaluations werecompromised by the fact that none of the OSOFT employees inACI's initial proposal had firm letters of commitment whichspecifically referenced the contract and contained salaryrates and that none of the five substitute personnel

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proposed in ACI's BAFO--including two from QSOFT--hadlntters of commitment.

The Navy acknowledges these defects but argues that lettersof commitment were required to be included with the costrather than the technical proposals and that they were to beused only for the realism analysis, In this regard, theagency notes that they therefore could have no impact on theevaluation of technical proposals and that other informationthe agency had access to made them unnecessary for the costrealism analysis,

Our review of the solicitation confirms that the commitmentletters were not to be part of the technical evaluation.Therefore, we focus our attention on the effect thedefective or missing letters may have had on the costrealism evaluation, In the case of ACI's substitute programmanager, he was in fact proposed at the same DCAA-confirmedrate as his predecessor in the initial ACI proposal and, inany event, under the RFP as clarified by amendment No. 0004,as an employee of ACI, he required no letter, The same istrue of an EEII substitute from ACI who has yet to be usedon the contract. Thus, as far as these individuals areconcerned, there was no requirement that they havecommitment letters and their salary rates already had beenthe, subject of a realism analysis conducted on the initialproposal; both of the original individuals proposed forthese positions did submit commitment letters includingtheir salary rates.

With regard to the proposed employees from CDTl--asubcontractor--the record shows that only one individual,who was proposed as a substitute in the BAFO to fill the EEIposition, lacked a letter of commitment. The BAFO did,however, include a salary rate for the individual and thatrate was found to be realistic because it was identical tothe rate that had earlier been determined to be realistic inthe initial proposal for another CDI employee proposed forthe same position.

With respect to two of the proposed employees from QSOFT--another; subcontractor--for positions in the ETI and ETIIlabor, categories, the record shows that they were proposedas substitutes in the BAFO without letters of commitment.The BAFO did, however, include salary rates for theindividuals and each rate was found to be realistic becauseit conformed to or exceeded applicable DOL wagedeterminations and the recommendations obtained from theDCAA office which audits the subcontractor.

Also, with respect to a proposed QSOFT employee whose namewas submitted in the initial proposal for one of the ETIIpositions and whose commitment letter did not specify a

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salary rate, the record shows that the rate proposed byQSOFT for the entire ETII labor category was determined tobe realistic because it, too, exceeded the applicable DOLwage determination and the recommended rate furnished byDCAA.

Thus, as far as the proposed subcontractor employees are,concerned, while they lacked commitment letters identifyingtheir salary rates, the information was otherwise containedeither in the initial proposal or the BAFO and the rateswere found to, in each case, conform to or exceed DOL wagedeterminations and DCAA recommendations regarding realisticrates. With the exception of one employee, all are workingunder the contract and, when considered as a group, they arebeing paid at a burdened rate that is .slightly less thanwhat the Navy initially considered to be realistic, In viewof these circumstances, there is no basis to conclude thatthe lack of appropriate commitment letters compromised thecost realism analysis as alleged by TLR.

Nonperformance

TLR also argues that since two of four ACI's personnel haveyet to perform--at, EEII and an ETII--it is evident that ACIlacks technical expertise and never intended to supply thetechnicians. The Navy, however, has provided data to showthat no requirements have yet arisen for an EEII under thecontract. The agency further explains that, since the ETIIcategory contains a total of seven positions (fC've keypersonnel and two, non-key personnel) and since no need hasarisen for more than four ETIIs to date, ACI's allegedlyinsufficient performance reflects nothing more than the factthat the firm's own ETII has not yet been needed. We findthe Navy's explanation to be reasonable,

Lack of Consent to Use Resume

TLR argues that ACI used the resume of Mr. David Dannelleywithout his permission as a subcontractor employee of QSOFTin its initial proposal for one of the five key positions inthe ETII category. TLR also argues that ACI did not amendits BAFO to reflect Mr. Dannelley's unavailability when itknew that he would not work for QSOFT at the salary rateproposed to him shortly after the submission of initialproposals.

4Mr. Dannelley is not performing as an ETII under thecontract; however, as indicated above, need has arisen foronly four out of seven ETII positions within the laborcategory.

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Several matters need to be noted prior to our analysis toplace this issue in a proper perspective, The employmentpositton represented by Mr. Dannelley's resume is only oneof five key personnel in the ETII labor category and onlyone of 11 key personnel. The RFP also provide' for twononkey personnel under the ETII category. To date only fourout of the seven ETIIs have had to perform. The educationalrequirements for the category are among the least demandingof any of the key labor categories described in the RFP.

Further, neither QSOFT nor ACI's other subcontractor--CDI--had any problems obtaining replacement ETIIs when needed forthe BAFO and at the start of contract performance, Resumesfor all 11 key positions in both the awardee's proposal andthe protester's proposal were rated as acceptable with oneexception: in its initial proposal and its BAFO, ACI offeredthe resume of an individual for one of the ETII positionsthrough its other subcontractor--CDI--who was rated highlyacceptable, No point scoring occurred.

Proposing to employ specific personnel that the offeror doesnoc expect to actually use during the contract performancehas an adverse effect on the integrity of the competitiveprocurement system and generally provides a basis forproposal "rejection." Informatics, Inc., 57 Comp. Gen. 217,(1976), 78-1 CPD 9 53. This does not mean that an offerormust use the personnel it proposed or risk losing thecontract for which it is competing in every case. Forexample, where the offeror provides firm letters ofcommitment and the names are submitted in good faith withthe consent of the respective individuals--a matter whichthe protester disputes here--the fact that the offeror,after award, provides substitute personnel does not itselfmake the award improper. Unisys CorpL, B-242897, June 18,1991, 91-1 CPD ' 577.

Conversely, however, an offeror may not be awarded acontract where it does not have the individuals' permissionto use their names for key positions for whtch they areproposed and cannot provide a satisfactory explanation' oruse of the names. Ultra Tech. Coro., B-230309.6, Jan. 18,1989, 89-1 CPD ¶ 42. Similarly, where an offeror knowsprior to the submission of its BAFO that proposed keyemployees are no longer available, the offeror shouldwithdraw the'-,individuals and, in its BAFO, proposesubstitutes who will be available. Omni AlJysisj, 60 Comp.Gen. 300 (1989), 89-1 CPD ¶ 239. To do otherwise is, ineffect to misrepresent the availability of proposed

'The individual rated as highly acceptable is performingunder the contract.

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personnel whatch, in turn, compromises the validity of thetachnicAl evaluation, regardless of whether post-awardaubstitAtionrs of key pers6hnel may later be made andapproved by the agency pursuant to a clause in the awardee'scontract. Ultra Tech. Corp., supra,

We believe that an offeror has a responsibility to proposepersons who it may reasonably expect will be available forcontract performance without the RFP having to provide thatthe offerCr must do so, CBIS Fed, Inc.5 B-245844,2,Mar. 27, 1992, 92-1 CPD ¶ . Otherwise, there is noassurance to the government that it will receive what it wasoffered, Ad,

TLP. has submitted two affidavits from Mr. Dannelley and theNavy has submitted affidavits from two QSOFT officials--Ms, Cheryl Niehl and Mr, Arvid Forsman, We have examinedthese statements in conjunction with the rest of the recordand, for the reasons stated below, we think that the recordreasonably supports the conclusion both that OSOFT had areasonable basis upcn which to conclude that it had aninitial empLoyment commitment from Mr. Dannelley and that atthe time of BAFO submission the individual still would beavailable.

Initial Proposal

Mr. tannetley acknowledges that in November 1990, he metwith a QSOFT representative, whose name he does not)remeMber, and that he was offered contingent employment at$14.3S pat hour, Mr. Forsman states that he met withMr. Dannelley on November 19, to interview him specificallyfor a job with QSOFT under a prime contract' with ACI if thefirm was successful in the competition under the RFP inissue. 14r. Forsman states that he briefed Mr. Dannelley onthe FP2, the requirements for an ETII position, and aprospective salary and asked permission to use his resume.Mr. Dannelley states that Mr. Forsman had his resume butdoes not know how he got it; Mr. Dannelley also states thathe was not asked permission to use his resume and he wouldnot have given it if asked.

Mr. Foreman states he contacted QSOFYk headquarters onNovember 19, and scught permission to pay Mr. Dannelley whathe was currently making; he also states that approval wasgranted. Mr. Forsman says that on November 21,Mr. Dannelley accepted and signed a contingent offer.'

6The document which is signed by Mr. Dannelley and datedNovember 21, 1991, in his handwriting states: "I herebyaccept the offer extended to me by QSOFT, Inc. dated

(continued...)

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One February 11, 1991, ACI's initial proposal offeredMr. Dannelley's resume and the signed commitment letter withQSOFT dated November 21. TLR argues that the letter isinsufficient because it does not specifically refer to theRFP, implying that it is not evidence of a commitment to thecontract. We disagree given Mr. Dannelley's acknowledgmentthat he was offered a job by QSOFT in November 1990, and hisfailure to deny Mr, Forsman's account of the meeting insofaras whether the ,jFP in issue was discussed. Moreover, wequestion Mr. Dannelley's denial that he ever gave QSOFTpermission to use his "resume" in connection with theproposal. The record shows that he knew the firm had theresume, he met with the firm to discuss employment under theRFP and he signed a commitment letter on the basis of thatmeeting. Under these circumstances, we believe the recordsupports a conclusion that QSOFT and ACI reasonably believedthat Mr. Dannelley had agreed to the case of his name and hisresume in the initial proposal and we, therefore, deny thisaspect of the protest Cf Ultra Tech. Corp., supra.

BAFO

Mr. Dannelley's affidavit shows that he agreed to work forQSOFT at $14.35 per hour. He was proposed by QSOFT as partof an overall hourl'rate of $13.43 for the ETII category.Mr. Dannelley states that he was, in February 1991, 7 made a"new offer" at $12.55 per hour and that he "rejected thatoffer." Unlike the previous offer which was accepted, thereis no written evidence of the February transaction.Ms. Cheryl Wiehl of QSOFT states that she contacted'Mr. Dannelley in October 1991 and asked "if he was stillinterested in the position for which he had received acontingent offer from QSOFT" and that he replied "he was nolonger interested" in the offer of employment due to thefact he was currently being paid more than "we wereoffering." Mr. Dannelley states that he was contacted inOctober 1991, and "again offered $12.55 per hour" and that,as a result, he "repeated" his "rejection of QSOFT'semployment offer."

TLR asserts that these events establish that ACI knew at thetime of its BAFO that Mr. Dannelley would not work for QSOFTbut that it deliberately failed to offer a substitute so asto continue to get evaluation credit for Mr. Dannelley.

6( ... continued)November 21, 1990." The instructions on its face refer toit as an "acceptance letter."

7TLR asserts that this occurred after initial proposals.

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The- recod 'is unclear concerning the effect; that thereported February transaction had on the offer ofemployment, contingent upon ACI getting the award, which hadbeen negotiated between Mt' Danneley at a higher rate theprecedingyNovember. Mr. Dannelly's first affidavit, filedin, support of TLR's contention that the November 21, 1990letter of acceptance did not represent a commitment to workunder the disputed contract, makes no mention of any laterrok3ection. His second affidavit, filed after receivingQSOFT's detailed account of the initial offer and acceptancein November 1990, describes the February transaction for thefirst time and treats it as the rejection of a separateoffer from QSOFT, a rejection he states he "repeated" in hisconversation with Mrs. Wiehl of QSOFT shortly after award inOctober 1991. Nonetheless, Mr. Dannelley's second affidavitdoes not address what he thought the effect of the Februaryrejection, repeated in October 1991, was on the originaloffer.

Mrs. Wiehi's account of the October 1991 conversation withMr. Dannelley indicates that (SOFT still believed that ithad a valid contingent arrangement with Mr. Dannelley as shestates she was "inquiring to see if he was still interestedin the position for which he had received a contingent offerfrom OSOFT." Also, her account of Mr. Dannelley's responseto the inquiry states that he informed her "that he was nolonger interested" in employment with QSOFT--a responsewhich indicates that he continued to consider working forQSOFT through that time.

This record, while confusing in some respects, does notwarrant"a conclusion that QSOFT's continuing belief that itstill had a validly accepted contingent offer wasunreasonable, especially in view of Mr. Dannelley'sdescription of his February 1991 rejection of a job offerfrom QSOFT as a matter distinct from the contingent offerwhich he had accepted in writing the previous November--anoffer which never appears to have been rejected.

Moreover, we question the impact that the submission ofMr. Dannelley's name as one of the five ETII's had as only 1out of 11 key positions listed in the RFP. As indicatedabove, the comparative importance ofjLtxe labor category wasnot particularly significant in terms of educationalrequirements or the need for a full complement oftechnicians. Mr. Dannelley was rated acceptable as werealmost all the other individuals proposed by TCI and ACI intheir BAEOs. Of the two competitors, only ACI proposed anemployee who was rated highly acceptable--an ETII withanother subcontractor.

This stands in contrast to other cases where we havesustained protests on the basis that awardees have

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materially affected the selection process by intentionallymisrepresenting the availability of personnel. In UltjraTech. Corp., sunra, for example, one of only three keVpersonnel slated to head a regional activity was at' issue.In Omni Analvsislsuprat two key personnel, one of whom wasspecifically highly rated by the evaluators, were at issue.Recently, in CBIS Fed., Inc., supra, two out of fourpersonnel--a project manager and a unit supervisor--weremisrepresented. Also, in each of these cases, the recordclearly supported a finding that the awardee knew or shouldhave known that the personnel it proposed were unavailable.Here, the record does not establish what the effect of Mr.Dannelley's February rejection of another offer from QSOFTwas on the one he had accepted and does not warrant aconclusion that QSOFT acted unreasonably in believing thatMr. Dannelley would still work for the firm at the timeBAFOs were submitted.

In view of the foregoing analysis, we deny this aspect ofthe protest.

QSOFT Bankruptcy

The record shows that QSOFT voluntarily file'd for bankruptcyunder chapter XI of the United States Bankruptcy Codebetween the submission of ACI's initial proposal and thesubmission of BAFOs. The record further shows that thecontracting officer was aware of this fact prior to findingACI to be responsible and prior to making his final awarddecision, although the matter is not mentioned izi'ACI's BAFOand specific reference to it is not contained in theevaluation or source selection documents. Noneth'eless, theNavy reports that the contracting officer did consider thepotential impact of the bankruptcy on QSOFT's abIlity toperform and concluded. that the firm was responsible since ithad been performing solidly on other contracts after itfiled for bankruptcy.

TLR questions why ACI did not disclose the bankruptcy to theNavy and alleges that a reasonable technical evaluation andassessment of the firm's responsibility should havecontained documented consideration of the impact thebankruptcy might have on contract performance6 Since therecord contains no narrative discussion of the matter, TLRsubmits that the selection decision was impermissiblyflawed.

QSOFT's financial position is a matter related to the firm'sresporsibility, not the technical evaluation as suggested byTLR. C. Martin Co., Inc., B-228552, Jan. 20, 1988, 88-1 CPD¶ 56 (also holding that bankruptcy does not compel a findingof nonresponsibility). Because a contracting officer'sdetermination that a firm is capable of performing is a

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subjective judgment which is generally not susceptible toreasoned review, an affirmative determination of.:esponsibility will not be reviewed absent a showing that itwas the product of fraud or bad faith on the part ofprocurement officials or that definitive responsibilitycriteria in the solicitation were not met. Security Am.Servs.. Inc., B-225469, Jan. 29, 1987, 87-1 CPD m 97;4 C.F.R. § 21.3(m)(5) (1992).

The record contains nothing more than TLR's assertioilthatACI deliberately withheld the fact of QSOFT's bankruptcyfrom the agency. This does not constitute a showing of'efraud. Also, the record does not show that the contractingofficer, who was aware of the matter and did consider ittogether with OSOFT's successful performance despite thebankruptcy, acted in bad faith and there is no suggestion inthe record that definitive responsibility criteria have notbeen met. Accordingly, we dismiss this basis of protest.Security Am. Servs., Inc., supra.

In view of the foregoing analysis, the protest is dismissedin part and denied in part.

tJames F. Hinch nGeneral Counsel

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