Hendry Corporation
Highlights
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.
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,