BNUMBER:  B-276251
DATE:  March 14, 1997
TITLE:  Service Deli, Inc.

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Matter of:Service Deli, Inc.

File:     B-276251

Date:March 14, 1997

David P. Metzger, Esq., and Timothy J. Bloomfield, Esq., Holland & 
Knight, for the protester.
Richard D. Lieberman, Esq., Sullivan & Worcester LLP, for Tony's Fine 
Foods, an intervenor.
Janet D. Kaminski, Esq., and Rexford T. Bragaw III, Esq., Defense 
Commissary Agency, for the agency.
Andrew T. Pogany, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Determination by contracting officer that offeror, should it be in 
line for award, would be nonresponsible for lack of integrity because 
of criminal conviction in connection with obtaining, attempting to 
obtain, or performing a public contract is reasonable and therefore 
offeror is not an interested party to protest evaluation of  proposals 
since it would not receive award in any event.

DECISION

Service Deli, Inc. protests the award of a contract to Tony's Fine 
Foods under request for proposals (RFP) No. DECA02-96-R-0017, issued 
by the Defense Commissary Agency for personnel, supervision, food 
products and supplies required to operate commissary deli/bakeries in 
three Southwest Region clusters.  Service Deli, whose proposal was 
ranked fourth of five after final evaluation, contends that the agency 
misevaluated Tony's and its own technical, past performance and price 
proposals and that its proposal should have been evaluated and ranked 
as most advantageous and as superior from a technical, experience, and 
price standpoint to the proposal of the successful offeror.

We dismiss the protest.

The contract was awarded to Tony's on February 6, 1997.  The agency 
has requested that our Office dismiss the protest because "[o]n 
January 29, 1997 [approximately one week before the award] the United 
States District Court of the Southern District of California convicted 
the [protester corporation] of violating    18 U.S.C.  sec.  1001 by making 
a false statement to the Defense Commissary Agency."  The agency has 
also submitted a letter from the Department of Justice, Antitrust 
Division, dated February 25, 1997 confirming the criminal conviction 
of Service Deli by a jury in the Southern District of California on 
January 29 (Criminal Case No. 96-1792 LCN).  The agency argues that a 
"criminal conviction involving fraud or false statement connected with 
a contract is [a] per se basis for a nonresponsibility determination."  
The agency has also submitted a written statement by the contracting 
officer stating that even if Service Deli's proposal had been 
considered to be most advantageous based on technical, past 
performance, and price, he would have found the firm to be 
nonresponsible based on the criminal conviction of the corporation.[1]  
Consequently, the agency concludes that Service Deli is not an 
interested party to pursue this protest because the firm has no chance 
of receiving the award under any circumstances.
  
Service Deli argues that the contracting officer's statement does not 
constitute an actual nonresponsibility determination but is merely 
speculative.  The protester also argues that it "believes" the 
contracting officer (who executed the statement on February 25, 1997) 
is no longer employed by the agency.  The protester also states that 
the criminal conviction was based on false statements made by its 
former president 3ï¿½ years ago and that this individual left the 
company more than 3 years ago.  The protester insists that its present 
management has "honesty and integrity."  

No purchase or award may be made unless the contracting officer makes 
an affirmative determination of responsibility.  In the absence of 
information clearly indicating that the prospective contractor is 
responsible, the contracting officer is required to make a 
determination of nonresponsibility.  Federal Acquisition Regulation 
(FAR)  sec.  9.103 (FAC 90-43).  To be determined responsible, the firm 
must have a "satisfactory record of integrity and business ethics."  
FAR  sec.  9.104-1(d).  The question as to whether evidence of an offeror's 
lack of integrity is sufficient to warrant a finding in a particular 
case that the offeror is not responsible is a matter primarily for 
determination by agency officials, and such determination will not be 
questioned by our Office in the absence of a showing of a lack of a 
reasonable basis for that determination.  Colonial Baking Co., 
B-185305, July 20, 1976, 76-2 CPD  para.  59, and cases cited therein.

Whether an offeror has a satisfactory record of integrity may properly 
be determined on the basis of the causes and conditions for the 
suspension of offerors enumerated in the procurement regulations.  Id.  
FAR  sec.  9.407-2(a)(1) (FAC 90-37) enumerates "[c]omission of fraud or a 
criminal offense in connection" with obtaining, attempting to obtain, 
or performing a public contract as a cause for suspension.  Such a 
criminal offense also constitutes a cause for debarment.  FAR  sec.  
9.406-2(a)(1) (FAC 90-41).  Thus, a criminal conviction in connection 
with a public contract is a basis for determining a firm to be 
nonresponsible.  While the protester argues that the criminal act 
occurred 3 years ago and therefore should not be controlling as to its 
responsibility now, the corporation was convicted in January 1997.  
Since it is the conviction that establishes under the law that the 
criminal offense was committed by the party convicted, it is only 
logical that the conviction is an appropriate matter for the 
contracting officer to consider in determining responsibility.  The 
fact that the time period between the commission of the corporate 
criminal act and the resulting conviction is considerably lengthy does 
not preclude the contracting officer from determining the convicted 
party nonresponsible; any other rule would effectively preclude 
nonresponsibility determinations by contracting agencies where the 
criminal judicial process, consistent with due process requirements, 
is lengthy and litigious.

The agency has formally represented to our Office that it would find 
Service Deli to be a nonresponsible firm, and under the circumstances 
we would view such a determination as reasonable.  Accordingly we find 
that Service Deli does not have a direct economic interest in this 
procurement should its protest be sustained, as required by our Bid 
Protest Regulations,  sec.  21.0(a), 61 Fed. Reg. 39039, 39042 (1996) (to 
be codified at 4 C.F.R.  sec.  21.0(a)).

The protest is dismissed.

Comptroller General 
of the United States

1. None of the parties contends that Service Deli is a small business.