B-400224.2, Hendry Corporation, August 25, 2008
Decision
Kent
P. Smith, Esq., Smith Currie & Hancock LLP, for the protester.
Bruce
C. Smith, Esq., Robert C. Threlkeld, Esq., and James M. Johnson, Esq., Morris,
Manning & Martin, LLP, for RiverHawk Marine, LLC, the intervenor.
Wilbert Jones, Esq., U.S. Coast Guard, for the agency.
Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging contracting
officer’s affirmative determination of responsibility regarding the awardee is
dismissed where the assertion on which the protest is based—failure to consider
allegedly poor business performance by principal members of the awardee during
their association with a previous firm—does not constitute the type of
information that, by its nature, would be expected to have a strong bearing on
whether the awardee should be found responsible, as required under Government
Accountability Office (GAO) Bid Protest Regulations for GAO review of such a
protest.
DECISION
Hendry Corporation protests the award of a contract to RiverHawk Marine, LLC by the Department of Homeland Security (DHS), U.S. Coast Guard under request for quotations No. HSCG80-08-Q-3FAD73 for dry-dock repairs to a Coast Guard cutter. Hendry challenges the agency’s determination that RiverHawk is a responsible firm on two grounds. Hendry alleges that three founding members of RiverHawk “do not have a satisfactory record of performance, integrity, and business ethics,” Protest at 3, because, during their course of employment at a previous firm, they took action that resulted in the bankruptcy of that company and default on two Coast Guard vessel repair contracts, and because, in violation of a non-compete agreement, they made plans to form RiverHawk while affiliated with that other firm.[1]
We dismiss the protest because, as filed with our Office, it does not establish a basis for our review of the agency’s responsibility determination.
We will consider a protest of an
affirmative determination of responsibility only where it is alleged that
definitive responsibility criteria in the solicitation were not met, or where
the protest identifies evidence raising serious concerns that, in reaching the
responsibility determination, the contracting officer unreasonably failed to
consider available relevant information or otherwise violated statute or
regulation. Bid Protest Regulations, 4
C.F.R. sect. 21.5(c) (2008); T.F. Boyle Transp., Inc., B-310708.2,
Here, the allegation that the
three RiverHawk principals took action that resulted in the bankruptcy of their
former firm and its default on two Coast Guard vessel repair contracts is not a protest ground that we will review. As our cases noted above illustrate, the
circumstances under which we will consider a challenge like Hendry’s involve
information that, by its nature, would be expected to have a bearing on whether
the awardee should be found responsible--proven criminal conduct, for example,
but not allegations of poor financial or business performance. Here, the protester alleges that, while the
three founders of RiverHawk were affiliated with their previous employer, their
performance was sufficiently poor to cause the bankruptcy of the firm and the
contract default. Even if the principals
of RiverHawk were responsible for their prior firm’s bankruptcy or default, the
nature of the allegation is one that concerns poor financial or business
performance, and thus is not the type that would meet the threshold showing for
review of a challenge to an affirmative responsibility determination.[2]
The second prong of the protester’s challenge to the
agency’s responsibility determination is the allegation that the principals of
RiverHawk, in contravention of a non-compete agreement, made plans to form that
company while affiliated with their prior firm, and then misrepresented the
existence of that agreement to the agency.
This protest ground likewise does not meet the threshold for our review. As a preliminary matter, the existence and
potential enforceability of the non-compete agreement is a private dispute and
not for our consideration. See DSG
Corp.--Recon., B‑213070.2,
In summary, the challenge to the agency’s responsibility
determination does not meet our threshold showing for
review. Nor has the protester adequately
supported its allegation that the awardee misrepresented to the agency the
existence of an enforceable non-compete agreement. Moreover, the record indicates that the
agency did, in fact, consider the issues raised by the protester in reaching
its responsibility determination.
The protest is dismissed.
Gary L. Kepplinger
General Counsel
[1]
While the protest alleges that all three of those individuals signed
non-compete agreements, the record shows that, in fact, only one signed the
agreement at issue.
[2]
In any event, the allegation is unsupported by the record. While the protester states that these
individuals “took action which resulted in the bankruptcy of [the prior firm]
and performance default on two ongoing Coast Guard vessel repair contracts,”
Protest at 2, the protester provides no evidence in support of its allegation. In fact, the allegation is contradicted by
the memorandum and order of the judge who presided over the bankruptcy
proceedings. See Intervenor’s
Comments,