BNUMBER:  B-278251 
DATE:  December 24, 1997
TITLE: Inn Towne Lodge, B-278251, December 24, 1997
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Matter of:Inn Towne Lodge

File:     B-278251

Date:December 24, 1997

Phillip E. Johnson, Federal Contract Specialists, Inc., for the 
protester.
Maj. Gerald P. Kohns, Timothy G. Goblirsch, Esq., and Patrick Kernan, 
Esq., Department of the Army, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Contracting officer reasonably determined that protester was not 
responsible based on facility inspection, conducted in accordance with 
solicitation performance work statement, which disclosed numerous 
major deficiencies in bidder's facility.

DECISION

Inn Towne Lodge protests the rejection of its low bid and the award of 
a contract to Command Management Services, Inc. under invitation for 
bids (IFB) 
No. DABT23-97-B-0074, issued by the Department of the Army for meals, 
lodging, and transportation for military applicants processing at the 
Kansas City, Missouri, Military Entrance Processing Station (MEPS).  
The protester contends that the contracting officer's determination 
that it was nonresponsible was improper.

We deny the protest.

The solicitation was issued on August 11, 1997, and sought bids for a 
requirements contract for meals, lodging, and transportation for 
military applicants for a base period with up to four 1-year option 
periods.  The solicitation was limited to facilities that were located 
within 12 miles of the MEPS and had eating facilities located within 
the lodging facility or within 300 feet of the facility.  The 
food/meal facility was required to have successfully passed its most 
recent public health inspection.  The solicitation also provided that 
the MEPS would conduct a facility inspection within 24 hours after bid 
opening and that facilities must comply with standards established in 
the performance work statement.  Copies of the checklists to be used 
by the MEPS when conducting inspections were enclosed with the IFB. 
Bidders were also advised that they would be allowed 48 hours after 
inspection to correct any deficiencies found during the inspection.  
Award was to be made to the lowest responsive, responsible bidder.  

Five bids, including Inn Towne's, were received on September 9.  Inn 
Towne submitted the apparent low bid; however, its bid package did not 
contain an original signature on the Standard Form 1449.  The agency 
reports that while researching the signature issue, on September 11, 
it conducted an inspection of the protester's facility.[1]  As a 
result of the inspection, the protester's facility received 
unsatisfactory ratings in several areas.  For example, the MEPS 
inspection team found that the air conditioning units were dirty, 
major cleaning and repair work was needed in every inspected room, 
emergency evacuation instructions were not posted in rooms, and the 
dining area was dirty throughout.  Additionally, the guest bathrooms 
were found to have loose and missing tiles, stained tubs, mildew, lack 
of caulking, stained and dirty tiles, stained and dirty floors, soft 
or loose floors, walls and ceilings, loose base boards, as well as 
ceiling, floor and wall cracks.  During the inspection, the agency 
also learned that the facility had not passed its most recent Kansas 
City Environmental Health Services inspection on the basis of the same 
type of problems, and that the protester had lost its Missouri State 
Lodging License.  Based on the facility inspection, Inn Towne was 
determined to be nonresponsible.  

The protester asserts that the nonresponsibility determination was 
improper because the survey was inappropriate and was allegedly 
conducted by unauthorized and unqualified agency personnel, and 
because the protester was never allowed the "48 hours after inspection 
to correct any deficiencies found during the inspection" as provided 
for in the solicitation.

Subsequent to the filing of this protest, the agency provided the 
protester a copy of the original inspection report and gave the 
protester 48 hours to correct the stated deficiencies.  The facility 
was reinspected on October 24, and the protester had failed to correct 
the stated deficiencies.

In general, the determination of a prospective contractor's 
responsibility is the duty of the contracting officer, who is vested 
with a wide degree of discretion and business judgment.  We therefore 
will not question a responsibility determination unless the record 
shows bad faith on the part of contracting officials or that the 
determination lacks a reasonable basis.  Standard Tank Cleaning Corp., 
B-245364, Jan. 2, 1992, 92-1 CPD  para.  3 at 3.  In order to show bad 
faith, a protester must show that the contracting agency acted with 
specific and malicious intent to injure the protester.  Schenker 
Panamericana (Panama) S.A., B-253029, Aug. 2, 1993, 93-2 CPD  para.  67 at 
5-6.    

Inn Towne first takes issue with the conduct of the inspection and the 
makeup of the inspection team.  As explained above, the solicitation 
specifically advised bidders that they had to successfully pass an 
inspection conducted by the MEPS within 24 hours of bid opening and 
that their facility must comply with the standards establish in the 
performance work statement.  If the protester had concerns about the 
fact that a survey would be conducted or about the impartiality of 
MEPS personnel to perform the facility inspection, the protester 
should have raised this issue prior to the time set for bid opening.  
Protests based upon alleged improprieties in a solicitation which are 
apparent prior to bid opening must be filed prior to bid opening.  4 
C.F.R.  sec.  21.2(a)(1) (1997).  

As to the propriety of the contracting officer's nonresponsibility 
determination based on the results of the inspection, the record 
establishes that the determination was reasonable.  The contracting 
officer had before him a MEPS inspection report that detailed major 
deficiencies in the protester's facility.  The contracting officer 
also had information that Inn Towne had lost its Missouri State 
Lodging License and had failed its most recent Kansas City Health 
Department inspection with similar deficiencies.  While the protester 
also asserts that it has plans to correct these deficiencies in the 
future, this claim does not serve to call into question the 
contracting officer's nonresponsibility determination based on the 
information in the inspection report and from the health department.  

Regarding the protester's claim of bias, unfair or prejudicial motives 
will not be attributed to procurement officials on the basis of 
inference or supposition.  Ted L. Biddy and Assocs., Inc., B-209297, 
B-209297.2, Apr. 22, 1983, 83-1 CPD  para.  441 at 3.  In its comments on 
the agency report submitted in response to the protest, the protester 
concedes that there was nothing in the record indicating any 
improprieties with respect to the inspection of its facility.  
However, the protester maintains that the agency's regulations 
concerning pre-award surveys were not followed in that only MEPS 
personnel performed the inspection and that, therefore, a reasonable 
doubt is created about the impartiality of the inspection team.  This 
complaint is misplaced because, as noted above, the solicitation 
specifically provided that MEPS personnel were going to conduct the 
inspection.  

Finally, the protester maintains that the use of the health department 
information was improper because the solicitation required only that 
the bidder's food/meal facility to have successfully passed its most 
recent public health department inspection.  We find implausible the 
protester's argument that the contracting officer should ignore the 
results of a health department inspection, and we see nothing improper 
in the contracting officer considering as part of a responsibility 
determination the protester's failure to pass a health department 
inspection for a lodging establishment.  This failure of the protester 
to maintain its lodging license essentially validates the MEPS 
inspection and the contracting officer's determination that the 
protester was nonresponsible because it offered an unacceptable 
lodging facility.

The protest is denied.

Comptroller General 
of the United States 

1. The agency eventually determined the protester's bid to be 
nonresponsive because of  uncertainties concerning the protester's 
signature on the Standard Form 1449.  The agency believed that, 
because of the signature issue, it was unclear from the bid whether 
the protester intended to be bound by the information contained in its 
bid.  While the agency's concerns in this regard may have been 
misplaced, we need not address this issue, since we have concluded 
that the protester was reasonably determined to be nonresponsible.