BNUMBER:  B-270962; B-270962.2
DATE:  May 1, 1996
TITLE:  Carter Chevrolet Agency, Inc.

**********************************************************************

Matter of:Carter Chevrolet Agency, Inc.

File:     B-270962; B-270962.2

Date:May 1, 1996

Robert H. Koehler, Esq., and Lynn T. Burleson, Esq., Patton Boggs, 
L.L.P., for the protester.
Seth Binstock, Esq., General Services Administration, for the agency.
Behn Miller, Esq., and Christine S. Melody, Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest that agency improperly determined that awardee satisfied a 
definitive responsibility criterion requiring it to provide letter of 
commitment from automobile manufacturer is denied where the agency 
reasonably determined that letter of commitment constituted evidence 
of manufacturer's agreement to provide required vehicles in accordance 
with the requirements of the solicitation.

2.  Protest that agency improperly allowed awardee to demonstrate 
compliance with definitive responsibility criterion after time set for 
submission of best and final offers is denied since evidence of 
compliance with matters of responsibility--such as definitive 
responsibility criteria--may be provided any time up to actual award.

3.  General Accounting Office will not consider challenges to 
contracting officer's affirmative determination of awardee's 
responsibility absent evidence of bad faith; protester's contention 
that contracting officer improperly failed to further investigate 
awardee's responsibility based on protester's unsubstantiated 
allegations of impropriety by awardee does not meet this standard.

DECISION

Carter Chevrolet Agency, Inc. protests the award of a contract to 
McCombs Fleet Services, Inc. under request for proposals (RFP) No. 
FCAP-X2-FLT96-N, issued by the General Services Administration (GSA) 
to obtain commercially available two-wheel drive and four-wheel drive 
"light" trucks and similar passenger vehicles.  Carter contends that 
the agency improperly waived a definitive responsibility criterion for 
the awardee, and that the contracting officer otherwise improperly 
determined McCombs to be a responsible contractor.

We deny the protest.

The RFP was issued on August 18, 1995, and contemplated the award of 
multiple firm, fixed-price requirements contracts to the lowest 
priced, technically acceptable offeror for each "group" of vehicle 
contract line item numbers (CLIN), which were organized in the RFP's 
pricing schedule according to vehicle specifications and manufacturer.  
At issue in this protest is the award of Group 17, which required 
offerors to provide various quantities of two-wheel drive passenger 
vans manufactured by General Motors Corporation (GMC).

By the October 4 closing date, McCombs and Carter submitted proposals 
for various CLIN vehicle groups; with respect to Group 17, the 
protester and McCombs were the sole offerors.

On November 8, the contracting officer issued a facsimile letter to 
McCombs advising the firm that several technical deviations in its 
offer were unacceptable.  On November 17, GSA issued an amendment to 
the RFP which revised several of the RFP's vehicle specifications, 
established a time for submission of best and final offers (BAFO), 
and--of significance to this protest--required all nonmanufacturer 
offerors to submit a manufacturer's letter of commitment with their 
BAFOs demonstrating that each manufacturer of the proposed vehicles 
had committed itself to act as the offeror's source of supply for that 
vehicle group.

With its BAFO, McCombs submitted commitment letters from the following 
manufacturers:  GMC Truck, Pontiac, Jeep, and Ford Motor Company.  
Although the commitment letter for Group 17 was submitted by GMC Truck 
on a letter specifically addressed to "McCombs Fleet Services," the 
commitment letters from the other vehicle manufacturers were addressed 
to different entities--i.e., "McCombs Jeep Eagle/Fleet Services" and 
"McCombs Pontiac-GMC."  On December 7, the contracting officer issued 
a letter to McCombs advising it that the commitment letters from Ford, 
Jeep, and Pontiac were deficient as they were not addressed to McCombs 
by the name on its proposal--McCombs Fleet Services.  Additionally, 
with respect to the commitment letter from GMC Truck, the contracting 
officer advised McCombs that the commitment was deficient because it 
"fails to identify the items for which you are submitting an offer and 
indicates [vehicle] shortages and a cut-off date."[1]  The contracting 
officer directed McCombs to verify its BAFO--including correcting the 
letters of commitment--by December 11.

On December 13, by means of a facsimile letter, McCombs requested 
additional time from the contracting officer to correct its GMC Truck 
commitment letter.  By facsimile letter dated that same day, the 
contracting officer denied this request on the ground that further 
delays were not in the government's best interests; the contracting 
officer advised the firm that she was referring her questions 
regarding the GMC Truck commitment letter--along with other matters 
concerning McCombs' ability to perform the contract--to the Small 
Business Administration (SBA) for review as a responsibility matter 
under that agency's Certificate of Competency (COC) procedures.  See 
15 U.S.C.  sec.  637(b)(7)(A) (1994).  The contracting officer also asked 
McCombs to extend its offer acceptance period in order to permit the 
SBA to complete its COC review.

By facsimile dated December 14, McCombs advised the contracting 
officer that it had extended its offer acceptance period, and further 
requested the name of the appropriate SBA official to contact 
regarding the COC review.  On December 19, McCombs submitted a revised 
commitment letter from GMC Truck to the contracting officer, as well 
as a copy of its registration statement from the state of Texas.  The 
registration notice showed that McCombs Austin, Inc. was registered to 
do business as McCombs Fleet Services. 

After receiving this December 19 correspondence, as well as a 
pre-award survey affirming McCombs' responsibility and recommending 
award to the firm, the contracting officer changed her mind about 
referring the issue of McCombs' responsibility to the SBA for COC 
review, and instead awarded the contract for Group 17 to McCombs as 
the lowest priced, technically acceptable, responsible offeror.  On 
January 23, 1996, shortly after being advised of the award decision, 
Carter filed this protest.

Manufacturer's Letter of Commitment Requirement

As noted above, by means of amendment No. 0003, the RFP incorporated 
the following letter of commitment requirement:

     "Offeror[s] other than the manufacturer are required to provide 
     the contracting officer with a letter of commitment from the 
     manufacturer which will assure the offeror of a source of supply 
     sufficient to satisfy the government's requirements for the 
     contract period, or evidence that the offeror will have an 
     uninterrupted source of supply from which to satisfy the 
     government's requirements for the contract period.  The letter of 
     commitment must be submitted with your [BAFO]."

In its protest, Carter contends that the amended GMC Truck letter of 
commitment submitted by McCombs on December 19 is deficient, and, 
consequently, the agency improperly waived a definitive responsibility 
criterion for McCombs.  First, Carter maintains that because the 
letters of commitment from other vehicle manufacturers identified 
McCombs by a different name, the enforceability of the awardee's 
commitment letter from GMC is questionable.  Additionally, the 
protester maintains that because McCombs' GMC Truck letter of 
commitment was submitted after the time set for submission of BAFOs, 
the agency was precluded from accepting the revised letter.

Definitive responsibility criteria are specific and objective 
standards established by an agency as a precondition to award that are 
designed to measure a prospective contractor's ability to perform the 
contract; the criteria limit the class of contractors to those meeting 
specified qualitative and quantitative qualifications necessary for 
adequate contract performance, e.g., unusual expertise or specialized 
facilities.  See Federal Acquisition Regulation (FAR)  sec.  9.104.2; Gelco 
Servs., Inc., B-253376, Sept. 14, 1993, 93-2 CPD  para.  163, recon. denied, 
B-253376.2, Oct. 27, 1993, 93-2 CPD  para.  261.  In this case, there is no 
dispute by any of the parties that the manufacturer's letter of 
commitment clause at issue in this protest constitutes a definitive 
responsibility criterion since it establishes a specific and objective 
standard to measure the offeror's ability to perform.  See Software 
City, B-217542, Apr. 26, 1985, 85-1 CPD  para.  475 (specification requiring 
each offeror of software to obtain a manufacturer's letter of 
commitment for each product offered guaranteeing the supply of the 
product to the offeror for the term of the contract is a definitive 
responsibility criterion).

Where, as here, a protester alleges that a definitive responsibility 
criterion has not been satisfied, we will review the record to 
ascertain whether evidence of compliance has been submitted from which 
the contracting officer reasonably could conclude that the criterion 
has been met; generally, a contracting agency has broad discretion in 
determining whether offerors meet definitive responsibility criteria 
since the agency must bear the burden of any difficulties experienced 
in obtaining the required performance.  Prime Mortgage Corp., 69 Comp. 
Gen. 618 (1990), 90-2 CPD  para.  48.  The relative quality of the evidence 
is a matter within the contracting officer's judgment; however, the 
official may only find compliance with the definitive responsibility 
criterion based on adequate objective evidence.  Tutor-Saliba Corp. et 
al., B-255756, Mar. 29, 1994, 94-1 CPD  para.  223.  Given that the GMC 
Truck letter identifies the CLIN, vehicle model number, and guaranteed 
minimum quantity of CLIN vehicles which GMC Truck will provide to 
McCombs in support of that offeror's Group 17 contract, we think that 
the contracting officer reasonably concluded that McCombs satisfied 
the manufacturer's letter of commitment requirement here.

While the protester contends that the letters of commitment submitted 
by other vehicle manufacturers for non-GMC vehicle groups render the 
identity of McCombs ambiguous because they refer to McCombs by a name 
different from what appears on its proposal, the record does not 
support this contention with respect to the Group 17 contract award.  
Simply stated, the GMC Truck letter of commitment for Group 17 
specifically identifies McCombs by its proposal name--McCombs Fleet 
Services--and guarantees a source of supply for each GMC vehicle 
proposed by McCombs in accordance with the terms of the RFP.  
Consequently, we see no basis to conclude that the contracting officer 
acted unreasonably in determining that McCombs met the letter of 
commitment definitive responsibility criterion.

To the extent Carter objects to McCombs' GMC Truck letter of 
commitment on the ground that it was submitted and accepted after the 
time set for submission of BAFOs, we note that because definitive 
responsibility criteria involve matters of responsibility, evidence of 
compliance with such provisions may be provided any time up to actual 
award.  Id.

Other Responsibility Challenges

In early January 1996, Carter contacted the contracting officer and 
advised her that several different companies had filed registrations 
to use the assumed name of "McCombs Fleet Services."  Carter also 
advised the contracting officer that one of those entities--McCombs 
Austin--had been rejected from GMC's bid assistance program, which 
offers "invoice credits" to participating dealers and ultimately 
allows them to provide vehicles to the customer at lower prices.  In 
this regard, the record shows that another entity that was registered 
to use the McCombs Fleet Services name--Red McCombs Pontiac-GMC 
Truck--had been admitted by GMC to the same bid assistance program 
from which McCombs Austin had been rejected.

Carter contends that once the contracting officer received this 
information, she was required to further investigate McCombs' 
responsibility.  Had she done so, Carter contends, the contracting 
officer would have discovered numerous FAR violations by the awardee; 
specifically, Carter alleges that McCombs improperly entered into a 
prohibited contingent fee arrangement with Red McCombs to use that 
firm's bid assistance membership in order to offer lower prices, see 
FAR  sec.  3.401, and that McCombs improperly failed to disclose its 
teaming arrangement with Red McCombs in its offer, in contravention of 
FAR  sec.  9.603.  Carter also contends that because McCombs allegedly 
relied on assistance from Red McCombs, its Certificate of Independent 
Price Determination is false.  Alternatively, Carter contends that 
McCombs submitted a below-cost offer.

Before awarding a contract, a contracting officer must make an 
affirmative determination that the prospective contractor is 
responsible.  FAR  sec.  9.103(b).  The determination of a prospective 
contractor's responsibility 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.  
See Garten-und Landschaftsbau GmbH Frank Mohr, B-237276; B-237277, 
Feb. 13, 1990, 90-1 CPD  para.  186.  While we review an affirmative 
responsibility determination where it is shown that it may have been 
made in bad faith, see Bid Protest Regulations, 4 C.F.R.  sec.  21.5(c) 
(1996); Tutor-Saliba Corp. et al., B-255756.2, Apr. 20, 1994, 94-1 CPD  para.  
268, we find no such showing here.

There is simply no evidence in the record--other than unsubstantiated 
speculation--to support Carter's allegations that McCombs has 
"teamed," or otherwise colluded in an improper contingent fee 
arrangement, with Red McCombs--or any other entity--to obtain contract 
award, or otherwise ensure successful performance of the Group 17 
contract at its proposed price.  As a preliminary matter, we note that 
enrollment in a manufacturer's bid assistance program was not a 
prerequisite or condition of the solicitation; rather, it is a benefit 
which offerors apply for and use, according to their individual needs 
and the manufacturer's terms.  Apparently, Red McCombs is entitled to 
apply an $1800 invoice discount credit to every GMC vehicle price it 
proposes in upcoming competitions; without explanation, Carter 
contends that McCombs' offered lower prices resulted from the 
application of Red McCombs' $1800 vehicle discount.  However, absent 
some corroborating evidence, such speculation does not constitute a 
basis for our Office to question the contracting officer's affirmative 
determination of McCombs' responsibility.

The record shows that on December 15, 1995, GSA's Credit and Finance 
Division completed a pre-award survey of the offeror's financial 
capability which verified that McCombs Fleet Services was the 
registered name of McCombs-Austin and further concluded that McCombs 
Austin was a responsible legal entity, capable of performing at the 
prices it had proposed.  After receiving this information, the 
contracting officer decided not to further investigate Carter's 
allegations of impropriety since no concrete evidence was proffered to 
support the charges, and the contracting officer already had reliable, 
current information in her possession--the GSA financial survey--which 
demonstrated McCombs' responsibility.  While Carter may disagree with 
the contracting officer's determination of responsibility, that 
disagreement does not suffice to show--or even suggest--that the 
contracting officer acted in bad faith.  See Tutor-Saliba Corp. et 
al., B-255756.2, supra.  Under these circumstances, we will not review 
the agency's affirmative responsibility determination, or otherwise 
consider Carter's speculative allegations of impropriety on the 
awardee's part.

Carter's alternative claim that McCombs' proposed price represents a 
"buy-in" is not a valid basis for protest.  An offeror, for various 
reasons, in its business judgment, may decide to submit a below-cost 
offer, and such an offer is not inherently invalid.  Little Susitna, 
Inc., B-244228, July 1, 1991, 91-2 CPD  para.  6.  Whether an awardee can 
perform the contract at the price offered is a matter of 
responsibility, which as discussed above, we will not review absent a 
showing of possible bad faith or that definitive responsibility 
criteria have not been met, exceptions that do not apply here.  Id.

The protest is denied.

Comptroller General
of the United States

1. The cut-off date pertained to "G model" vehicles, which are not 
part of the Group 17 vehicle category.