BNUMBER:  B-266025
DATE:  January 17, 1996
TITLE:  Mine Safety Appliances Company

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Matter of:Mine Safety Appliances Company

File:     B-266025

Date:     January 17, 1996

J. Eric Andrï¿½, Esq., Howrey & Simon, for the protester.
Kenneth B. Weckstein, Esq., and Shlomo D. Katz, Esq., Epstein, Becker 
& Green, for The Canadian Commercial Corporation/Racal Filter 
Technologies, Limited, an interested party.
Joseph M. Pichiotti, Esq., and Jeffrey I. Kessler, Esq., Department of 
the Army, for the agency.
Tania L. Calhoun, Esq., and Ralph O. White, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

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.

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.  43; 
Fujinon, Inc., supra.
 
Where, as here, the protester alleges that the awardee has a history 
of seriously deficient contract performance concerning the items being 
procured, the issue before us is whether the contracting officer's 
affirmative determination of responsibility was made with such willful 
disregard of the awardee's record of prior performance as to 
constitute bad faith.  William Dixon Co., B-235241, Aug. 8, 1989, 89-2 
CPD  para.  114; HLJ Management Group, Inc., B-225843.6, Mar. 24, 1989, 89-1 
CPD  para.  299.  The protester in such cases bears a heavy burden of proof.  
Contracting officials are presumed to act in good faith, William Dixon 
Co., supra, and we will not attribute bad faith to contracting 
officials absent evidence that they had an intent to harm the 
protester.  Gayston Corp.--Recon., supra.  

In our view, MSA has not met this burden.  While it is undeniable that 
Racal's prior performance history includes providing defective 
canisters to the Army, there is no support for the proposition that 
the contracting officer's affirmative determination of Racal's 
responsibility willfully disregarded this prior performance history.

In 1992, the Army began receiving reports of nonconformances and 
deficiencies within the C-2 canister[1] stockpile and commenced a 
serviceability test of both MSA and Racal canisters produced between 
1988 and 1992.  One of the reports it received about Racal canisters, 
from MSA, spurred an Army visit to Racal's facilities, where an 
inspection confirmed that various nonconformances pointed out by MSA 
did, in fact, exist.  The Army obtained a list of the corrective 
actions proposed by Racal and ordered immediate testing of a sample 
group of MSA and Racal canisters.  The results of this testing showed 
that both firms had produced canisters with various nonconformances, 
none of which were considered to be life-threatening.  

During Racal's subsequent first article testing under its most recent 
contract, the Army discovered that the nonconformances it had 
previously identified had not been corrected and extracted a verbal 
agreement from Racal to take the necessary corrective actions.  
Racal's first article test was rejected, and the Army issued the firm 
a cure notice under a prior contract in which it again pointed out 
these uncorrected nonconformances.  Racal responded with a detailed 
account of the corrective actions it had taken and would take to 
rectify these problems.  During Racal's February 1993 new first 
article testing, the Army noted that the corrective actions had been 
taken.  Racal passed this first article testing, but the Army asked 
the Defense Contract Management Area Operations (DCMAO) office in 
Ottawa to more closely scrutinize the firm's operations.  

On November 2, 1993, the Department of Defense Inspector General (DOD 
IG) issued an audit report on the procurement of these canisters in 
response to a congressional request.  The DOD IG concluded, among 
other things, that the Army had responded appropriately to MSA's 
concerns.  The DOD IG referred to the ongoing serviceability tests, 
but did not discuss their results because testing had not concluded.  
These test results, issued November 30, showed that both firms had 
produced canisters with nonconformances.  Of interest here,[2] a 
canister from one Racal lot leaked when tested for protective capacity 
against dioctylphthalate (DOP)--a particulate penetrant.  This was 
considered to be a critical defect.  In addition, sample canisters 
from five Racal lots showed a gas-life degradation below the 30-minute 
minimum when tested for protective capacity against cyanogen chloride 
(CK)--a blood agent.  The Army suspended all six Racal lots and 
recommended continued surveillance testing.

In December 1994 and May 1995, MSA representatives contacted the 
Secretary of the Army and two successive Acting Deputy Assistant 
Secretaries of the Army for Procurement to reiterate their concerns 
with Racal's canisters.  Each time, the respective Assistant Secretary 
was fully briefed on the issues, and, each time, the respective 
Assistant Secretary concluded that the Army had acted appropriately 
and conveyed that information to MSA.  The last briefing indicated 
that testing had continued and was continuing, and that there had been 
no failures since the initial suspensions discussed above.  Moreover, 
both manufacturers' canisters were averaging a similar CK gas-life 
degradation rate.  In August, MSA asked the DOD IG to incorporate the 
test results in its audit report, but the DOD IG team's subsequent 
outbrief on the investigation revealed no major new findings.  

The record shows that the affirmative determination of Racal's 
responsibility was based on an informal contractor review, conducted 
by a government industrial specialist and approved by the contracting 
officer.  The review found that Racal was not on the debarred 
contractor list, the contractor alert list, or the contractors 
requiring special attention list; its quality assurance rating was 90 
percent based upon one open and four closed contracts, and the quality 
assurance representative at Racal's plant stated that there were no 
problems with the firm's quality; the firm  had no contract 
delinquencies in the past year, no financial problems, and an apparent 
production capability; the firm's business ethics and integrity were 
in good standing; and DCMAO-Ottawa personnel had indicated no 
problems.  The specialist recommended a finding of responsibility.  
The contracting officer states that, prior to award, he examined the 
specialist's review and concluded that there was no basis to disagree 
with his recommendation that Racal be determined responsible.  "Based 
on [his] review of all the circumstances, including the detailed 
[performance] history discussed above, [he] determined that Racal was 
in fact responsible for award."  

The contracting officer states that it was and is his determination 
that Racal was not seriously deficient in contract performance in 
light of the corrective action it had taken.  See FAR  sec.  9.104-3(c).  
The record shows that Army testing has not uncovered any failures 
since the initial Racal suspensions; that corrective actions were 
taken; and that the nonconformances revealed by various testing are 
not life-threatening.  Moreover, as discussed above, recent 
unsatisfactory performance does not automatically require a 
nonresponsibility determination, see Jay Fran Corp, supra, and MSA 
does not raise any other considerations of responsibility such as 
those noted by the specialist.  We see no basis for concluding that 
the Army unreasonably found that Racal could meet the contract 
requirements, much less that the Army acted in bad faith in making 
award to Racal.  William Dixon Co., supra.

MSA alleges that the contracting officer willfully failed to consider 
the facts of Racal's "seriously deficient performance" at the time of 
the responsibility determination by relying upon the informal 
contractor review and not a pre-award survey.  

A pre-award survey is not a legal prerequisite to an affirmative 
determination of responsibility; contracting officials have broad 
discretion concerning whether to conduct such surveys and may use, as 
was done here, other information available to them concerning a firm's 
responsibility.  Zeiders Enters. Inc., B-251628, Apr. 2, 1993, 93-1 
CPD  para.  291.  The determination not to request a pre-award survey does 
not establish any impropriety on the agency's part.  Id.  Here, the 
protester's arguments rest upon its characterization of Racal's past 
performance as "seriously deficient," a characterization not shared by 
the Army, as well as its belief that the contracting officer did not 
have sufficient information concerning Racal's prior performance, a 
belief belied by the contracting officer's own statement.  When the 
contracting officer's statement is taken together with the additional 
information in the informal contractor review, we see no basis to 
conclude that the contracting officer improperly decided not to 
request a pre-award survey.  Id.  Finally, MSA's failure to produce 
any evidence of an Army intent to harm the protester, in the face of a 
record which affords ample evidence to the contrary, underscores our 
conclusion that the contracting officer's affirmative determination of 
responsibility here was not made in bad faith.  See William Dixon 
Corp., supra. 

The protest is denied.

Comptroller General
of the United States

1. The C-2A1 filter canister being procured here is the successor to 
the C-2 canister.

2. Both firms had produced packing cans which leaked and canisters 
which had undersized threads.  In addition, MSA had produced canisters 
with broken keys, partial tears on key strips, and burn marks, and 
Racal had produced canisters with paint overspray.