United States General Accounting Office --__--- GAO Office of General Counsel November 1989 Digests of Decisions of the Comptroller General of the United States Vol. I, No. 2 Notice To provide a comprehensive overview of Comptroller General decisions, the Office of General Counsel has expanded its monthly pamphlet of Digests 01 Unpublished Decisions of the Comptroller General of the United States tc include the digests of all decisions printed in the annual volume of Decision5 the Comptroller General of the United States. of all substantive legal decisions rendered presented in one publication retitled Digests of Decisions of the General of the United States. We hope you find this unified means for researching Comptroller General decisions. For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC. 20402 Current GAO Officials Comptroller General of the United States Charles A. Bowsher Deputy Comptroller General of the United States Vacant Special Assistant to the Comptroller General Milton J. Socolar General Counsel James F. Hinchman Deputy General Counsel Vacant Page i Contents q.1 Preface 111 Table of Decision Numbers iv Digests Appropriations/Financial Management 1 Civilian PersonneI 3 Procurement 13 Page ii Preface This publication is one in a series of monthly pamphlets entitled “Digests of Decisions of the Comptroller General of the United States” which have been published since the establishment of the General Accounting Office by the Budget and Accounting Act, 1921. A disbursing or certifying official or the head of an agency may request a decision from the Comptroller General pursuant to 31 U.S. Code 5 3529 (formerly 31 U.S.C. $9 74 and 82d). Decisions concerning claims are issued in accordance with 31 U.S. Code 0 3702 (formerly 31 U.S.C. 0 71). Decisions on the validity of contract awards are rendered pursuant to the Competition in Contracting Act, Pub. L. 98-369, July 18, 1984. Decisions in thhis pamphlet are presented in digest form. When requesting individual copies of these decisions, which are available in full text, cite them by the file number and date, e.g., B-229329.2, Sept. 29, 1989. Approximately 10 percent of GAO’s decisions are published in full text as the Decisions of the Comptroller General of the United States. Copies of these decisions are available in individual copies, in monthly pamphlets and in annual volumes. Decisions in these volumes should be cited by volume, page number and year issued, e.g., 68 Comp. Gen. 644 (19891. Page iii Table of Decision Numbers Page Page B-197911.8. November 16. 1989 34 B-235402, November 9, 1989 5 B-225985.2, November 24, 1989 11 B-235431.3, November 16, 1989 35 B-230562.8, November 2, 1989 15 B-235569.3, November 2, 1989”** 15 B-231351, November 21, 1989 11 B-235595.2, November 2, 1989 15 B-231779, November 14,1989 6 B-235642.2, November 16, 1989 35 B-232496, November 21,1989 41 B-235774.2, November 7, 1989 23 B-232503, November 9, 1989*** 4 B-235787, November 20,1989*** 10 B-232836. November 16.1989 7 B-235813.2, November 7, 1989’*” 23 B-233269.2, November 8, 1989 27 B-235957.2, November 15, 1989 33 B-233653, November 20, 1989 10 B-236007, November 3, 1989 17 B-233673. November 7.1989 3 B-236012, November 8,1989 4 B-233733, B-233735, November 9, B-236023, B-236097, November 7, 1989 5 1989”** 23 B-233740.4, November 28, 1989 48 B-236024, November 1,1989 13 B-233806, November 16, 1989 8 B-236028, November 1, 1989 13 B-233880. November 3. 1989 1 B-236029, November 6, 1989 20 B-234257.2, November 20, 1989 10 B-236035, November 6,1989 21 B-234696, November 3, 1989 3 B-236041, November 7, 1989*** 24 B-234813, November 9, 1989 1 B-236050, November 6, 1989 21 B-234828, November 14, 1989*** 2 B-236072.2 et al., November 29, B-234866, November 17, 1989 9 1989 49 B-234931, November 29, 1989 12 B-236083, B-236083.2, November B-234944.2. B-234944.3. 6, 1989 21 November 6, 1989 ’ 30 B-236117, November 6, 1989**’ 22 B-235128, November 17, 1989 9 B-236153, November 16, 1989 35 B-235206.4, November 13, L989 30 B-236160, November 20, 1989*** 39 B-235279, November 15, 1989 7 B-236161, B-236250, November B-235386, November 16, 1989 17, 1989 37 7 B-236167, November 20, 1989 40 “*(notes published decisions) Cite published decisions ES 69 Camp. Gen.- Page iv Table of Decision Numbers Page B-236168, November 14,1989*** 32 B-236386, November 22,1989 45 B-236187, November 1, 1989*** 14 B-236392, November 17, 1989 38 B-236194, B-236194.2, November B-236396, November 9, 1989 28 15, 1989 34 B-236403, November 30, 1989 51 B-236209, November 16,1989 35 B-236408, November 3, 1989*** 18 B-236217. November 7. 1989*“* 24 B-236416.2, November 22, B-236218, November 2, 1989 16 1989*** 45 B-236238, November 22, 1989 43 B-236421.3, November 22,1989 46 B-236239. November 21. 1989 42 B-236430, November 17, 1989 38 B-236251, November 17, 1989 37 B-236432, November 22,1989 46 B-236253, November ‘7, 1989 25 B-236462, et al., November 14, B-236255. November 16. 1989 36 1989 32 B-236260, November 27, 1989 47 B-236499, November 20, 1989 40 B-236264, November 22, 1989 44 B-236515, November 30, 1989 51 B-236266, B-236266.4. November B-236518, November 17,1989 38 9,1989 ’ 28 B-236545, November 7, 1989 25 B-236273, November 21, 1989 42 B-236550, November 13, 1989*** 31 B-236275, November 13, 1989*** 30 B-236571, November 9, 1989 6 B-236294, November 21, 1989 42 B-236674, November 7, 1989 25 B-236318, November 27, 1989 48 B-236713.2, November 16, 1989 37 B-236329. November 22.1989 44 B-236739, November 20, 1989 41 B-236332, November 21, 1989 43 B-236750, November ‘7,1989 3 B-236334, November 13, 1989 31 B-236764.2, November 7, 1989 26 B-236345, November 30, 1989*** 50 B-236776, November 17, 1989 38 B-236357. November 22. 1989 44 B-236792.3, November 2,1989 16 B-236362, November 9, 1989 5 B-236798, November 7, 1989 26 B-236364, November 3,1989 18 B-236936.2, November 3, 1989 19 B-236382, November 6, 1989 22 B-236994.2, November 22, 1989 47 Page v Table of Decision Numbers Page Page B-237061.2, November 3,1989 20 B-237323.2, November 20,1989 41 B-237062.2, November 21, 1989 43 B-237333, November 9, 1989 29 B-237068.2, November 13, B-237351.2, November 28,1989 48 1989* ** 31 B-237362.2, November 7, 1989 26 B-237128.2, November 9, 1989 29 B-237365, November 15, 1989 34 B-237168, November 3, 1989 20 B-237396, November 6, 1989 22 B-237220, November 7, 1989 26 B-237402, November 2, 1989 17 B-237225.2, November 17,1989 39 B-237441, November 22, 1989 47 B-237231.2, November 3, 1989 20 B-237534, November 8, 1989 27 B-237250, B-237251, November B-237550, November 7, 1989 27 14, 1989 33 B-237613, November 29, 1989 50 B-237294.2, November 2, 1989 17 B-237700, November 9, 1989 1 Page vi Overruled, Modified and Distinguished Page 47 ComD. Gen. 84 4 B-175499, Apr. 21, 1972 4 Page vii Digests-November 1989 Appropriations /Financial Management B-233880, November 3, 1989 Appropriations/Financial Management Budget Process W Funding H l Agricultural programs n n l Foreign countries n I n n Foreign currencies The Department of Agriculture may use foreign currencies received through the sale of agricultur- al commodities to friendly developing countries to fund its programs abroad (unless otherwise re- stricted by law, international agreement, or by Office of Management and Budget decision) where the equivalent dollar amount is charged against the agency’s regular appropriations. B-234813. November 9.1989 Appropriations/Financial Management Appropriation Availability W Purpose availability W l Specific purpose restrictions I n n Meals Expenses incurred for food served to law enforcement personnel at a staging area before they were dispatched to execute search warrants may not be paid by the Federal Bureau of Investigation (FBI), even though provision of the food helped the FBI ensure the security of a large-scale orga- nized crime investigation by preventing participants from leaving the premises and leaking infor- mation. B-237700, November 9,1989 Amwow-iations/Financial Management Budget Process n Part-year appropriation n W Sequestration Section 252 (f)(Z)(A) of the Balanced Budget and Emergency Deficit Control Act, as amended, in- structs how to sequester part-year appropriations enacted after the issuance of a final sequestra- tion order. The Act does not provide for reducing the sequestration by the amount of savings ex- pected when the part-year appropriation, as projected for the full fiscal year, is less than the se- questerable base identified in the final order. Page 1 B-234828, November 14, 1989*** Appropriations/Financial Management Accountable Officers W Disbursing officers I m Records management W n W Computer software The provisions of 31 USC. 0 3528(a)(l) governing the responsibilities of a certifying official and 31 U.S.C. 9 3325(a) governing the responsibilities of a disbursing official would not preclude Treasury disbursing officials from using an automated software system to correct addresses and ZIP Codes contained in certified payment vouchers to qualify checks processed for mailing for reduced Postal Service rates. Appropriations/Financial Management Accountable Officers W Disbursing officers H I Relief W W W Illegal/improper payments n W H W Computer software In the rare event that a disbursing official incurs liability for an improper payment that results from the use of a reliable automated address and ZIP Code correction software system, we may relieve a disbursing official from liability under the provisions of 31 U.S.C. 8 3527. If relief is to be granted, the improper payment cannot result from bad faith or a lack of due care. Disbursing offi- cials can demonstrate due care by showing that the automated system made payments that were accurate and legal, functioned properly, and was reviewed at least annually to ensure its effective- ness. Appropriations/Financial Management Accountable Officers W Disbursing officers W 111 Relief n W H Illegal/improper payments n W n n Computer software Because the liability of disbursing officials for improper payments is governed by federal statutory provisions contained in 31 USC. 3 3325(a) and 31 USC. 0 3527 a proposed memorandum of under- standing between the Treasury and client agencies to shield Treasury disbursing officials from li- ability for improper payments would be ineffectual. Page 2 Civilian Personnel B-234696, November 3,1989 Civilian Personnel Relocation a Household goods n l Commuted rates n n n Reimbursement l n m W Amount determination The Veteran’s Administration (VA) authorized reimbursement under the commuted rate method for an employee’s shipment of household goods. Subsequent to the employee’s completion of the shipment of his household goods, the VA found that had a cost comparison been made it would have shown that the Government Bill of Lading method would have been more cost effective. Since there was a proper basis under the regulations for authorization of the commuted rate method, the original travel order was not in error and the employee may be reimbursed under that method. B-233673, November 7,1989 Civilian Personnel Relocation n Residence transaction m n Miscellaneous expenses n n I Reimbursement Senior Executive Service (SES) employee requests reimbursement for a real estate purchae depos- it forfeited as a result of an involuntary second transfer ordered before the purchase could be com- pleted. The forfeited deposit may not be reimbursed as real estate transaction expenses, however, it was properly reimbursed as miscellaneous expenses, subject to the general limitations estab- lished for miscellaneous expense reimbursements which is based on the maximum rate for GS-13. Employee’s appointment under the SES does not afford any additional miscellaneous expense re- imbursement in excess of this maximum rate. B-236750, November 7,1989 Civilian Personnel Compensation n Overtime W n Eligibility n n n Advance approval Civilian Personnel Compensation n Overtime n I Eligibility W n I Advance approval An employee of the Bureau of Prisons may not be paid overtime under 5 U.S.C. 9 5542 (1982) for activities related to firefighting while performing his job as safety manager. Such overtime was Page 3 not ordered or approved and there was no inducement by the employee’s supervisor to continue to perform overtime work. B-236012, November 8,1989 Civilian Personnel Travel H Non-workday travel H W Travel time n I n Overtime Federal Railroad Administration employees, who traveled outside their regular duty hours to tem- porary duty inspection sites are not entitled to compensatory time or overtime pay. The travel did not result from an event which could not be scheduled or administratively controlled, and the fact that the employees carried equipment to their assignment does not authorize the payment of over- time or compensatory time. B-232503, November 9, 1989*** Civilian Personnel Relocation W Travel expenses I W Privately-owned vehicles W n H Mileage A transferred employee claims reimbursement for 3,541 miles for relocation travel based on his odometer reading for the route he traveled. The claim is limited to 2,853 miles which represents the most reasonably direct point-to-point routing between his old and new duty stations based on a standard highway mileage guide. Civilian Personnel Relocation n Per diem n n Reimbursement H W n Amount determination Entitlement to relocation travel per diem under paragraph Z-2.342) of the Federal Travel Regula- tions is not dependent on the actual distance the employee traveled each day. Per diem is allowed on the basis of the actual time used to complete the entire trip, not to exceed the number of days established by dividing the total authorized mileage by not less than 300 miles a day. Civilian Personnel Relocation n Temporary quarters m W Interruption n W W Actual expenses I W W n Temporary duty A transferred employee, while occupying temporary quarters at his new permanent duty station, was required to perform several days temporary duty away from that duty station. He retained his temporary quarters during that absence and seeks reimbursement as part of his temporary quar- ters subsistence expenses in addition to per diem received for his temporary duty. His claim for temporary quarters lodging expenses may be allowed if the agency determines that the employee acted reasonably in retaining those quarters. 47 Comp. Gen. 84 (1967); and B-175499, Apr. 21, 1972, are overruled. Page 4 B-233733, B-233735, November 9,1989 Civilian Personnel Relocation W Temporary quarters W n Interruption n U W Actual subsistence expenses W l n 1 Amount determination Civilian Personnel Relocation m Temporary quarters W n Interruption I m n Actual expenses W B I n Temporary duty Employees, who are occupying temporary quarters and who must perform temporary duty away from their permanent duty stations, may be reimbursed for the lodging expenses portion of their temporary quarters subsistence expenses as well as lodging expenses at their temporary duty sta- tions, provided the agency determines the employees acted reasonably in retaining the temporary quarters. Paul G. Thibadt, B-232503, dated today. B-235402, November 9,1989 Civilian Personnel Relocation n Temporary quarters W l Interruption m H m Actual subsistence expenses n H n H Amount determination Civilian Personnel Relocation n Temporary quarters n n Interruption I n n Actual expenses 4 n H l Temporary duty An employee, who is occupying temporary quarters and who must perform temporary duty away from the permanent duty station, may be reimbursed for the lodging expenses portion of her tem- porary quarters subsistence expenses as well as lodging expenses at the temporary duty station, provided the agency determines the employee acted reasonably in retaining the temporary quar- ters. Paul 0. Thibadt, B-232503, dated today. B-236362, November 9,1989 Civilian Personnel Relocation n Residence transaction expenses n n Finance charges A transferred employee who purchased a residence near his new duty station claims real estate closing costs. Where the local custom for conventionally financed housing is that the buyer and seller negotiate the payment of closing costs, the employee may be allowed those costs to the extent that they are otherwise reimbursable under the Federal Travel Regulations and not in excess of amounts customarily paid in local area. Page 5 B-236571, November 9,1989 Civilian Personnel Relocation M Residence transaction expenses n n Finance charges Civilian Personnel Relocation W Residence transaction expenses I I Inspection fees W W n Reimbursement Civilian Personnel Relocation n Residence transaction expenses n n Loan origination fees I n H Reimbursement Civilian Personnel Relocation W Residence transaction expenses W I Relocation service contracts n WWUse Civilian Personnel Relocation H Residence transaction expenses n n Hazard insurance n II W Reimbursement This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer b decisions indexed under the above listed index entry. B-231779, November 14,1989 Civilian Personnel Compensation n Occupational illnesses/injuries n W Service credits W W U Step increase W W W n Reinstatement A grade GS-12 employee, who was separated following a job-related injury, resumed employment nearly 4 years later at the grade GS-9 level after partial recovery from his injury. The employee was entitled to service credit during his absence for purposes of a within-grade increase at his former grade GS-12 level only up to the date he was reemployed, even though he continued to receive partial workers’ compensation after he was reemployed. Page 6 B-235279, November 15,1989 Civilian Personnel Relocation n Temporary quarters l n Actual subsistence expenses I n n Reimbursement U n W n Eligibility A transferred employee who occupied temporary quarters at the home of a relative claimed ex- penses for this lodging and the costs of restaurant meals itemized at the same daily amount. The employee’s lodging claim is denied because she has not furnished evidence showing that her rela- tive incurred additional expenses as a result of the employee’s stay. The employee’s claim for meal costs may not be allowed based on the present record because her listing of identical daily amounts for meals appears to be an estimate, and estimates are not acceptable evidence of actual expenses. B-232836, November 16, 1989 Civilian Personnel Relocation H Temporary quarters H l Actual subsistence expenses n I m Reimbursement n B W H Deadlines Civilian Personnel Relocation 1 Temporary quarters n n Determination n n n Criteria This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. B-233806, November 16,1989 Civilian Personnel Relocation W Temporary quarters n H Actual subsistence expenses n n n Reimbursement W I I n Amount determination A transferred employee reclaims amount of subsistence expenses disallowed by his agency as un- reasonable in accordance with the Federal Travel Regulations and Department of Agriculture sta- tistics for grocery expenses for the size of the employee’s family. To the extent that the employee can present specific evidence showing that he ate some meals in restaurants and their costs, the agency should re-evaluate his claim based on a determination of the reasonable cost of restaurant meals in the area. Page 7 B-235386, November 16,1989 Civilian Personnel Compensation n Overpayments n n Error detection n m II Debt collection H n n I Waiver This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. Civilian Personnel Relocation n Residence transaction expenses n n Property titles R m n Insurance premiums H n n n Reimbursement In obtaining the title insurance necessary to secure financing for a new residence, a transferred employee may have received a reduced rate on his purchase of mortgagee’s title insurance because it was purchased in conjunction with an owner’s title insurance policy. If the employee can pro- vide clear evidence that this was the case, the employee is entitled to reimbursement of an amount equal to the charge for the mortgagee’s title insurance if purchased separately since that amount reflects the costs of title search and other costs properly reimbursable in connection with mortgagee’s title insurance. Civilian Personnel Relocation I Residence transaction expenses n n Mortgage insurance n n n Reimbursement A transferred employee claims reimbursement for a mortgage insurance premium required by the lender to protect against default and paid at settlement on purchase of a residence at his new duty station. Reimbursement for mortgage insurance, as distinguished from mortgage title insurance, is considered a finance charge under Regulation Z and is specifically precluded from reimbursement under the Federal Travel Regulations (FTR), paras. 2-6.2d(2Xa) and (e). Civilian Personnel Relocation n Residence transaction expenses n n Loan origination fees n n I Reimbursement n n n n Amount determination The agency was not in error when it allowed reimbursement of 1 percent loan origination fee, based upon the loan amount, in connection with the purchase of a residence at the employee’s new duty station. The employee did not present evidence indicating that the higher rate he was charged did not include prepaid interest, points, or a mortgage discount and that it is the custom- ary rate in the area, as required by FTR, para. 2-6.2d(l)(b). Page 8 Civilian Personnel Relocation n Travel expenses I W Privately-owned vehicles n H W Multiple vehicles Where the use of no more than one privately-owned automobile is allowable under the FTRa except for certain specifically described reasons, and the reason given by the employee for needing a second vehicle is not one of those listed in FTR, para. 2-2.3e, there was no basis to authorize an allowance for the second car and the travel orders doing so were erroneous. Civilian Personnel Relocation I Travel expenses H I Privately-owned vehicles HI n Mileage Where the use of a privately-owned automobile is determined to be advantageous to the govern- ment for permanent change-of-station travel, mileage reimbursement is limited to the cost by the usually traveled route between the employee’s old and new official stations, which distance is gen- erally derived from the standard highway mileage guides. FTR, paras. l-4.lb and Z-2.2a. B-234866. November 17.1989 Civilian Personnel Compensation n Fringe benefits H m Health insurance A Presidential appointee who was erroneously excluded from the Federal Employees Health Bene- fits Program for over 6 months may not be reimbursed far the difference in the cost of premium payments made for private health insurance coverage during that period. B-235128, November 17, 1989 Civilian Personnel Relocation n Household goods W B Actual expenses W n n Reimbursement W H H H Amount determination This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. Page 9 B-233653, November 20,1989 Civilian Personnel Relocation H Temporary quarters n n Actual subsistence expenses n n n Eligibility n H n m Extension Where the record supports an agency’s explanation that an employee’s claim for an additional period of temporary quarters was denied on the basis of the employee’s circumstances, and the Federal Travel Regulations provide for a reduction or denial of temporary quarters under such circumstances, this Office will not disturb the agency’s action. However, an agency policy limiting temporary quarters to 30 days for all transferred employees who elect relocation services is con- trary to the Federal Travel Regulations and should not be enforced. B-234257.2, November 20, 1989 Civilian Personnel Leaves of Absence n Suspension n n Disciplinary actions n H n Propriety n mm=AWOL This summary letter decision addresses well established rules which have been discussed in preti- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. B-235787, November 20, 1989*** Civilian Personnel Relocation n Relocation service contracts n I Eligibility Civilian Personnel Relocation n Temporary quarters nn Actual subsistence expenses nI n Eligibility nn n n Extension An agency policy limiting temporary quarters to 30 days for all transferred employees who elect relocation services is contrary to the Federal Travel Regulations and should not be enforced. An employee’s claim for an additional period of temporary quarters, denied on the basis of the agency policy. is remanded to the agency for reconsideration in light of the employee’s particular circum- stances. Page 10 F&31351, November 21,1989 Civilian Personnel Relocation n Temporary quarters l n Interruption I n n Actual subsistence expenses n n n n Amount determination Civilian Personnel Relocation n Household goods n m Temporary storage n W n Reimbursement m n I n Eligibility This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. B-225985.2, November 24, 1989 Civilian Personnei Travel m Temporary duty I n Per diem rates n n n Amount determination Upon reconsideration, decision 66 Comp. Gen. 631 (198’7), holding that Army employees on tempo- rary duty in Saudi Arabia were not entitled to amounts in excess of the reduced per diem author- ized by regulation when governmentfurnished meals were available, is sustained. Although the employees contend that the available meals were not adequate, they have not presented compel- ling evidence contrary to the material facts of record. Amendment of the employees’ travel orders by officials at the employees’ permanent duty station, purporting to authorize higher per diem rates on the basis that use of the government-furnished meals would adversely affect the mission, provides no legal basis for relief since the applicable regulation authorizes only the commanding officer at the temporary duty point to make relevant determinations concerning the availability of government-furnished meals and their impact on the employees’ mission. Civilian Personnel Travel W Travel expenses n n Illegal/improper payments n n n Debt waiver Employees’ claims for full per diem for periods when government-furnished meals were available at their temporary duty stations in Saudi Arabia are not appropriate for reporting to Congress under the Meritorious Claims Act, 31 USC. 3 3702(d) (1982). The agency may consider the employ- ees’ requests for waiver to the extent payments were made after December 28, 1985, the effective date of the amendment to the waiver statute allowing erroneous travel allowances to be consid- ered for waiver. However, based on the record before us, it does not appear that the equitable standards for waiver are met in this case. Page 11 B-234931, November 29,1989 Civilian Personnel Relocation n Residence transaction expenses W W Reimbursement n W W Eligibility n n n n Permanent duty stations An employee’s claim for real estate expenses arising from the sale of a home in Tucson, Arizona, his residence at the time he accepted a new appointment in St. Louis, Missouri, may not be reim- bursed in connection with his subsequent transfer from St. Louis to Kansas City. The residence did not. qualify for real estate expenses pursuant to the transfer because it was not located at the em- ployee’s old official duty station, and the expenses are not payable based on his initial appoint- ment because as a general rule new appointees are not eligible for any relocation expenses. The claim is not appropriate for submission to Congress as a meritorious claim under 31 USC. J 3702(d), because although the employee was erroneously authorized real estate expenses the record does not demonstrate reasonable reliance on the authorization. Page 12 Procurement B-236024, November 1,1989 89-2 CPDI 406 Procurement Competitive Negotiation n Requests for proposals n H Cancellation n H I Justification n I W n Competition enhancement Protest that agency improperly canceled a negotiated solicitation is denied where the agency offers a reasonable basis for its decision to cancel the solicitation. Procurement Competitive Negotiation W Contract awards W W Propriety W m n Pending protests Protest that agency improperly made award of a contract during the pendency of a protest is denied where award was made under another contract for a different requirement than as stated in the solicitation. B-236028, November 1,1989 89-2 CPD ll407 Procurement Competitive Negotiation l Contract awards n n Administrative discretion W n n Cost/technical tradeoffs n n I n Technical superiority Agency determination to make award to high technically rated, high cost offeror under request for proposals, giving more weight to technical factors, wa6 rationally based and consistent with the evaluation criteria, where the agency found the awardee was significantly more technically quali- fied than the lower cost protester. Procurement Competitive Negotiation H Requests for proposals n II Evaluation criteria B W U Prior contracts n n H l Contract performance Agency may consider negative reports on past and present contract performance on relevant work to assess performance risk, where this criterion is specified among the evaluation criteria of the solicitation. Page 13 Procurement Competitive Negotiation H Discussion n n Adequacy H n n Criteria Agency generally satisfied its obligation to conduct meaningful discussions by leading an offeror into the specific areas of its proposals which were found deficient. Procurement Bid Protests n Non-prejudicial allegation H W GAO review Although agency failed during discussions to point out a deficiency in a protester’s proposal as it should have done under Federal Acquisition Regulation 8 15.610 (FAC 84-161, the protester was not prejudiced so as to justify sustaining the protest where the awardees still have a significant technical advantage over protester’s low cost proposal, even assuming this deficiency was correct- ed. B-236187, November 1. 1989*** 89-2 CPD r[ 408 Procurement Contract Types W Supply contracts W W Options W W W Construction contracts Protest that solicitation should be for supply contract rather than construction contract is denied where agency, to meet congressional limitation on construction in Philippines, obtains proposals to supply generators with option for construction of power plant and includes clauses applicable to both supply and construction contracts and protester fails to show how it was prejudiced thereby. Procurement Socio-Economic Policies n Preferred products/services W n Domestic sources 1 W W Foreign products W n W n Price differentials Allegation that solicitation requirement that materials and supplies be Philippine sourced con- flicts with a Balance of Payments Clause which establishes a ceiling of $156,000 for non-qualifying country items is denied, since the clauses read together require Philippine products, then U.S. products and if such items are not available, non-qualifying country products up to $156,000 in value. Page 14 B-230562.8, November 2, 1989 89-2 CPD II 412 Procurement Bid Protests l GAO procedures n l Protest timeliness W n W Apparent solicitation improprieties Protest alleging that a set-aside for small disadvantaged business concerns was improper is un- timely where not filed until after proposals, including best and final offers, had been submitted and the contract awarded. B-235569.3, November 2,1989*** 89-2 CPD ll413 Procurement Contract Management W Contract administration n n Convenience termination n n I Administrative determination n H H W GAO review Contracting agency’s decision to terminate the contract which it had awarded and to make no award to any other offeror, including the protester, is reasonable where as the result of post-award protests it concludes that no technically acceptable proposal was received. Procurement Competitive Negotiation H Best/final offers W n Modification m n H Acceptance criteria Contracting agency has the authority to decide when the negotiation and offer stage of a procure- ment is finished and an offeror has no legal right to insist that negotiations be reopened and at- tempt to modify its technically unacceptable proposal after best and final offers are submitted. B-235595.2. November 2.1989 89-2 CPD II 414 Procurement Competitive Negotiation H Best/final offers n n Modification n W n Acceptance criteria Contracting officer has constructive knowledge of a mistake in an offer before award where, based on offeror’s pricing pattern in prior submissions, contracting officer should have suspected a mis- take and requested clarification prior to contract award. Procurement Competitive Negotiation 4 Best/final offers n H Modification n H n Acceptance criteria Agency properly allowed offeror to correct a mistake in an extended price in its second best and final offer without reopening discussions with the displaced awardee where offeror’s pricing pattern Page 15 throughout the negotiation process clearly indicated intent to offer the stated unit price rather than the extended price. Procurement Competitive Negotiation n Offers W W Evaluation m W W Options n W W W Prices Where offeror’s prices for step-ladder quantities of option items are added to its price for the basic requirement and offeror remains low when its total price is evaluated against another offeror’s total price, which included single unit prices for option quantities, contracting agency properly concluded that offeror proposing step-ladder quantities of option items was offering lowest price notwithstanding its higher prices for certain quantities of the option items. B-236218. November 2.1989 89-2 CPD II415 Procurement Sealed Bidding W Bid guarantees H W Responsiveness n H n Letters of credit W W W H Adequacy Agency properIy may reject as nonresponsive a bid accompanied by a bid guarantee in the form of an irrevocable letter of credit which expires prior to such time as is reasonably necessary to enable government to exercise its rights in the event bidder fails to comply with the solicitation requirement to furnish performance and payment bonds. B-236792.3, November 2,1989 89-2 CPD ll416 Procurement Bid Protests n GAO procedures W n Protest timeliness W W W IO-day rule W n H H Adverse agency actions Where a firm initially filed an agency-level protest requesting extension of at least 30 days in clos- ing date for receipt of proposals, agency’s receipt of proposals on closing date which was extended only 7 days constitutes initial adverse agency action; subsequent protest to the General Account- ing Office (GAO), 4 months later, is untimely under GAO’s Bid Protest Regulations. Procurement Bid Protests W GAO procedures n W Protest timeliness W W n Apparent solicitation improprieties Protest against alleged solicitation improprieties apparent prior to the closing date for receipt of proposals is untimely where filed after closing. Page 16 B-237294.2, November 2,1989 89-2 CPD !I 417 Procurement Bid Protests R GAO procedures fl H Protest timeliness H m n Significant issue exemptions W n l n Applicability An untimely protest will not be considered under the significant issue or god cause exceptions to the bid protest timeliness requirements where the issue raised is not of widespread interest to the procurement community or a matter of first impression and there is no indication of any compel- ling reason beyond the protester’s control that prevented it from filing a timely protest. B-237402, November 2,1989 89-2 CPD I[ 418 Procurement Sock-Economic Policies I Labor standards n n Supply contracts n n H Manufacturers/dealers n W I n Determination The General Accounting Offke does not consider challenges of the legal status of a firm as a regu- lar dealer or manufacturer within the meaning of the Walsh-Healey Act. Procurement Sealed Bidding n Bids n W Clerical errors I W H Error correction n W n n Propriety Post bid opening explanation that a bidder intended to offer a different complying model, rather than the nonresponsive model which it did offer, cannot be accepted to render the bid responsive. B-236007, November 3,1989 89-2 CPD ll419 Procurement Competitive Negotiation H Offers n n Evaluation errors n n n Allegation substantiation Procurement Competitive Negotiation H Offers n n Evaluation n n II Technical acceptability n mmmTests Record provides no basis on which the General Accounting Office can conclude that samples of vehicle armoring materials submitted by the protester for testing were improperly determined to not meet all epecification requirements. Page 17 Procurement Bid Protests n GAO procedures n W Protest timeliness H W W Apparent solicitation improprieties Allegations that testing standards for armored vehicles stated in request far proposals could not be met because of weight restrictions and that there was insufficient time to obtain conforming ar- moring material, are untimely under the General Accounting Office’s Bid Protest Regulations, since they constitute alleged solicitation defects first raised after the closing date for receipt of proposals, and in any event, are not supported by the record. Procurement Bid Protests W GAO procedures H H Protest timeliness H W H Apparent solicitation improprieties Allegation that the evaluation scheme in a negotiated procurement encourages bias and favoritism on the part of contracting officials because it allegedly affords a broad range of subjectivity is un- timely raised after the closing date for receipt of proposals. Procurement Competitive Negotiation n Competitive advantage n n Privileged information W H n Disclosure Protest allegation that contracting officials improperly disclosed confidential or competition sensi- tive information concerning protester’s proposal is denied where protester, referring only to rumor and speculation in support of the allegation, fails to meet its burden of proof. B-236364. November 3.1989 89-2 CPD ll420 Procurement Sealed Bidding n Unbalanced bids n I Materiality n W n Responsiveness Protest that awardee submitted a materially unbalanced bid that should have been rejected as nonresponsive is denied where the awardee’s prices for the base and option periods were not rea- sonably related to the costs to be incurred during each period and the awardee’s bid will result in the lowest ultimate cost to the government. B-236408, November 3,1989*** 89-2 CPD Ii 421 Procurement Sealed Bidding n Bids H n Responsiveness n H W Shipment n WI W Risk allocation Bid proposing delivery on an f.o.b. origin basis with freight allowed, contrary to solicitation re- quirement for delivery on an f.o.b. destination basis, is nonresponsive since it reduces the Page 18 contractor’s responsibility by shifting the risk of loss of or damage to goods during transit from the contractor to the government. Procurement Sealed Bidding H Bids H n Responsiveness n H n Conflicting terms n H H n Ambiguity Bid which is ambiguous-because bidder included conflicting delivery terms in cover letter and bid form-was properly rejected as nonresponsive since under one interpretation the bid takes excep- tion to a material term of the solicitation. Procurement Sealed Bidding W Bids W I Responsiveness l W n Conflicting terms n W n n Ambiguity Where bidder creates an ambiguity in its bid by offering different f.o.b. term than required by invitation for bids (IFB), ambiguity may not be waived or corrected as a minor informality, since offering a different f.o.b. term than required by the IFB is a material deviation. Procurement Sealed Bidding n Bids n n Responsiveness n H W Determination time periods A bid that is nonresponsive may not be corrected after bid opening to be made responsive, since the bidder would have an unfair advantage over other bidders by being able to choose to make its bid responsive or nonresponsive. B-236936.2. November 3.1989 89-2 CPD ll422 Procurement Bid Protests n GAO procedures H n Protest timeliness n W W IO-day rule Protest filed with the General Accounting Office more than 10 working days after the protester learned of the denial of its protest to the agency is untimely notwithstanding the fact that the untimely filing was due to incorrect advice given the protester regarding the forum in which its protest should be filed. Page 19 B-237061.2, November 3, 1989 89-2 CPD Tl423 Procurement Bid Protests 1 GAO procedures W H GAO decisions n n n Reconsideration Request for reconsideration of dismissal of protest as untimely is denied where the protest of an alleged solicitation defect wa.~ filed with the agency prior to closing, but was not filed at the Gen- eral Accounting Office within 10 days after closing, where the agency accepted proposals and did not take any corrective action with respect to the agency-level protest. B-237168. November 3. 1989 89-2 CPD Ti424 Procurement Sealed Bidding H Bids H M Responsiveness n n W Ambiguous prices Bid for nursing services at hourly rates was properly rejected as nonresponsive where material submitted with the bid indicated that the protester intended to charge more for overtime and thus rendered its price uncertain. B-237231.2, November 3,1989 89-2 CPD 11425 Procurement Socio-Economic Policies W Small businesses n n Responsibility n l W Competency certification a n n W GAO review General Accounting Office will not review a contracting officer’s finding of nonresponsibility of a bidder where the Small Business Administration declines to consider issuance of a certificate of competency on the ground that the bidder is not eligible where it would not be performing a sig- nificant portion of the contract. B-236029, November $1989 89-2 CPD 7426 Procurement Specifications n Brand name specifications n m Equivalent products n n W Acceptance criteria Procuring agency’s evaluation of alternate product as technically unacceptable was reasonable where the protester failed to supply sufficient information to establish the acceptability of its product as required by the solicitation. Page 20 B-236035, November 6,1989 89-2 CPD ll427 Procurement Bid Protests H Patent infringement II n GAO review Protest relating to the government’s rights to use drawings covered by a patented system will not be considered by General Accounting Office because questions of patent infringement are not en- compassed by bid protest function but by statute are for resolution in the Claims Court. B-236050, November 6, 1989 89-2 CPD li 428 Procurement Competitive Negotiation H Offers n H Competitive ranges n n n Exclusion m n H n Administrative discretion Where an offeror fails to comply with a solicitation requirement for detailed information which an agency deems necessary for evaluation purposes, the agency properly may eliminate the proposal from the competitive range. Procurement Competitive Negotiation n Discussion n m Adequacy m n n Criteria Protest that contracting agency failed to conduct meaningful discussions with offeror is denied where offeror’s proposal was not determined to be within competitive range; agency’s communica- tions with offeror during initial evaluation regarding proposal deficiencies constituted clarifica- tions which were part of the evaluation and on which the agency ultimately relied, in part, in excluding the offeror from the competitive range. B-236083, B-236083.2, November 6, 1989 89-2 CPD 11429 Procurement Competitive Negotiation n Offers W I Evaluation W n W Administrative discretion Agency evaluation of proposal of below-ground record storage facility, following stipulation in dis- missal of court action that above-ground facility could not be a mandatory requirement, but could be considered in evaluation, was reasonable as offered below-ground facility impacted on offeror’s ability to comply with other specification requirements. Page 21 Procurement Specifications n Minimum needs standards n m Competitive restrictions n m W GAO review Agency is not required to reopen competition, following court ordered deletion of allegedly restric- tive specification, where protester could have submitted proposal under initial solicitation that did not contain restriction, agency received five proposals under solicitation and protester has failed to demonstrate to agency what it would offer as a viable alternative. B-236117, November f&1989*** 89-2 CPD 1430 Procurement Sealed Bidding H Bids n l Responsiveness H n n Determination criteria Bidder’s failure to inspect material from core borings in procurement for excavation work, even where the solicitation so requires, provides no basis to reject an otherwise responsive bid that takes no exception to solicitation requirements. B-236382, November 6,1989 89-2 CPD lI 431 Procurement Socio-Economic Policies H Small business 8(a) subcontracting l n Contract awards n I n Propriety Protest against the proposed award of a contract under section 8(a) of the Small Business Act, 15 USC. 0 637(a) (1988), is denied where the protester, which alleged that the procuring agency im- properly favored a particular 8(a) contractor, has failed to show that the procurement officials acted fraudulently or in bad faith. B-237396, November 6. 1989 89-2 CPD ll432 Procurement Bid Protests n GAO procedures n l Interested parties II n l Direct interest standards Protest by offeror which would not be in line for award if its protest were upheld is dismissed because the protester does not have the requisite direct economic interest required to be consid- ered an interested party under the General Accounting Office’s Bid Protest Regulations. Page 22 B-235774.2, November 7,1989 89-2 CPD ll433 Procurement Competitive Negotiation n Discussion H H Adequacy n n n Criteria Discussions were meaningful where agency imparted sufficient information to protester to afford it a fair and reasonable opportunity in the context of the procurement to identify and correct any deficiencies in its proposal. Procurement Competitive Negotiation w Contract awards n n Administrative discretion I n n Cost/technical tradeoffs n n n n Technical superiority Contracting officer properly decided to award a firm, fixed-price contract to the offeror of the higher rated, higher priced proposal, where: (1) the solicitation stated that technical factors would be considered significantly more important than price; (2) the awardee’s proposal was rated higher than the protester’s in every technical evaluation factor; and (3) the awardee’s proposal received a higher overall evaluation score when the weighted technical and price evaluation scores were com- bined. B-235813.2, November 7, 1989*** 89-2 CPD 7434 Procurement Bid Protests n GAO procedures n H GAO decisions n n n Reconsideration Procurement Competitive Negotiation n Requests for proposals I n Evaluation criteria n H n Cost/technical tradeoffs n n n n Weighting Consideration of quality as an aspect of an evaluation of proposals is not required by the 1987 National Defense Authorization Act and its implementing regulation; statutory and regulatory language and legislative history indicate that use of quality as a technical evaluation criterion is permissive, not mandatory. B-236023, B-236097, November 7,1989*** 89-2 CPD ll435 Procurement Bid Protests n GAO authority General Accounting Office (GAO) will consider protest against General Services Administration (GSA) solicitation to provide public pay telephones in government controlled property under GAO’s bid protest authority where awards under solicitation will provide a service to government employees and will satisfy GSA mission needs, and thus the solicitation is a procurement of serv ices by a federal agency. Page 23 Prncurement Specifications m Minimum needs standards n W Competitive restrictions n n W Geographic restrictions n n n W Justification Requirement that offers to provide public pay telephones cover specific General Services Adminis- tration regions only unduly restricts competition where requirement excludes Regional Bell Gper- ating Companies from competing in their regular course of business and otherwise is not a legiti- mate need of the agency. B-236041, November 7,1989*** 89-2 CPD 1436 Procurement Competitive Negotiation n Offers n I Evaluation errors n n n Evaluation criteria m n n W Application Protest is sustained where agency evaluation gave greater weight to technical factors than was reasonably consistent with the solicitation evaluation criteria by using a scoring formula which accorded only 10 percent to price, and 90 percent to technical, which resulted in award to a firm whose price was 67 percent higher than the protester’s but whose technical score was only 9 per- cent higher than the protester’s B-236217. November 7.1989*** 89-2 CPD ll437 Procurement Special Procurement Methods/Categories W Architect/engineering services W n Contractors n H I Evaluation Protest that firm was improperly excluded from further consideration in architect-engineer acqui- sition is denied where record shows that preselection committee had reasonable basis for recom- mending firms which it ultimately recommended to the source selection board and judgment of preselection committee was consistent with stated evaluation criteria. Procurement Contractor Qualification W Responsibility I W Contracting officer findings n W I Negative determination n H m W GAO review Protest that agency made an improper de facto determination of nonresponsibility is denied where record shows that firm’s disqualification resulted from technical finding that firm was less quali- fied and experienced than other firms baaed on the stated evaluation criteria. Fact that certain evaluation criteria encompassed traditional elements of responsibility does not serve to convert technical finding to finding of nonresponsibility. Page 24 Procurement Bid Protests n GAO procedures n W Protest timeliness I I I Apparent solicitation improprieties Allegation that procurement should have been set aside for small business is dismissed as untime- ly where not filed prior to date set for submission of architect-engineer qualifications statements. B-236253, November 7, 1989 89-2 CPD ll438 Procurement Sealed Bidding W Bids n n Responsiveness W W n Shipment schedules I I II II Deviation Low bid for radio-tuned siren system, which effectively conditioned adherence to required delivery schedule on agency’s assignment of radio frequency prior to issuance of notice to proceed, properly was rejected as nonresponsive since this condition effectively limited the agency’s otherwise unlim- ited right, as to timing, to assign a radio frequency. B-236545, November 7,1989 89-2 CPD II 439 Procurement Contractor Qualification W Approved sources I H Qualification W n H Standards Whether retesting is required for the purposes of a Qualified Products List (QPL) where the of- feror changes location of manufacture in a matter for the determination of the agency responsible for the QPL, and the General Accounting Office will not question the agency’s judgment unless it is shown not to have a reasonable basis. B-236674, November 7.1989 89-2 CPD ll440 Procurement Contract Management n Contract administration n n GAO review Protest seeking return of a deposit placed toward the purchase of real estate is dismissed where the record reflects that a sales contract was validly awarded so that disputes concerning its en- forcement are matters of contract administration within the discretion of the contracting agency, not the General Accounting Office bid protest function. Page 25 B-236764.2. November 7. 1989 89-2 CPD II 441 Procurement Bid Protests H GAO procedures I n GAO decisions W n I Reconsideration Request for reconsideration is denied where the protester fails to point out any errors of fact or law or information not previously considered that warrant reversal or modification of prior dismis- sal. B-236798, November 7, 1989 89-2 CPD IT 442 Procurement Bid Protests W GAO procedures W W Interested parties W n n Suspended/debarred contractors Protest is dismissed where firm, subsequent to filing of protest, is reacquired by original debarred owner since the firm is ineligible for a contract award and, therefore, is not an interested party to protest.. B-237220. November 7.1989 89-2 CPD 1443 Procurement Contractor Qualification n Licenses l W State/local laws n n W GAO review Absent a specific solicitation licensing requirement, the lack of a license or authorization for a corporation to do business in a state or a particular locale, which state or local authorities may deem necessary, is not a bar to contract award; rather, it is a matter to be resolved between the bidder and the state and local authorities. B-237362.2, November 7,1989 89-2 CPD ll444 Procurement Bid Protests n GAO procedures n W Protest timeliness l I n IO-day rule Dismissal of protest as untimely is affirmed where protest, although filed within 10 working days of protester’s receipt of information pursuant to Freedom of Information Act request for informa- tion concerning the procurement, was filed more than 10 working days after the basis of protest was known. Page 26 B-237550. November 7. 1989 89-2 CPD 11445 Procurement Bid Protests U GAO procedures W W Protest timeliness H n W lo-day rule Where protester waits more than 1 month before requesting information which will form the basis of its protest, protester has failed to diligently pursue such information and protest is dismissed as untimely. Procurement Bid Protests W GAO procedures W W Protest timeliness W W n Significant issue exemptions W W W W Applicability An untimely protest will not be considered under the significant issue exception to the bid protest timeliness requirements where the issue raised is not one of widespread interest to the procure- ment community which has not been considered on the merits in a previous decision. B-233269.2, November 8, 1989 89-2 CPD ll446 Procurement Bid Protests H GAO procedures n W Administrative reports W W n Comments timeliness Dismissal of protest for failure to timely file comments on agency report is affirmed, even though protester subsequently alleges late receipt of report, because protester failed to timely notify the General Accounting Office of its late receipt, despite notice of its responsibility in this regard. Procurement Bid Protests H GAO procedures H n GAO decisions n l l Reconsideration Dismissal of protest for failure to timely file comments on agency report is affirmed, even though protester subsequently alleges late receipt of report, because protester failed to timely notify the General Accounting Office of its late receipt, despite notice of its responsibility in this regard. B-237534, November 8,1989 89-2 CPD II 447 Procurement Contractor Qualification n Responsibility n n Contracting officer findings H W n Affirmative determination n n H H GAO review Protest is untimely where protester knew the basis for its proposal’s rejection on October 4, 1989, but did not protest the rejection until October 23, more than 10 working days later. Page 27 Procurement Bid Protests n GAO procedures n n Protest timeliness n W n lo-day rule General Accounting Offke will not review challenge to agency’s affirmative determination of re- sponsibility absent a showing of possible fraud or bad faith on the part of procurement officials or that definitive responsibility criteria in the solicitation were misapplied. Bald, unsupported asser- tion of “bias” is insuffkient to show bad faith. B-234944.2, B-234944.3, November 9,1989 89-2 CPD ll452 Procurement Competitive Negotiation n Offers n H Competitive ranges I l n Exclusion n n n n Administrative discretion Contracting officer’s decision to exclude firm from the competitive range W M reasonable where the firm was ineligible for award based on the agency’s issuance of a Limited Denial of Participa- tion (LDP) and a proposed debarment. B-236266. B-236266.4. November 9.1989 89-2 CPD !‘I448 Procurement Sealed Bidding n Invitations for bids n I Terms I n n Liability insurance Protest that solicitation requirement for $3,000,000 liability insurance coverage under contract for medical examinations and related services is unduly restrictive is denied where the agency deter- mined that requirement was necessary to protect its interests, and the record supports the reason- ableness of that determination. Procurement Contractor Qualification n Responsibility/responsiveness distinctions Solicitation requirements that bidder have experience in providing similar medical examination services and that bidder list intended place of performance are matters of responsibility, not re- sponsiveness, and they can be satisfied at any time prior to award. B-236396, November 9, 1989 89-2 CPD 11449 Procurement Competitive Negotiation n Requests for proposals n n Evaluation criteria H n H Cost/technical tradeoffs II n n m Weighting Solicitation which provides for point scoring of technical proposals and the establishment of a com- petitive range based on the technical evaluation scores for each qualified proposal indicates that Page 28 award will be based on a cost/technical tradeoff, rather than made to the lowest cost technically acceptable offeror. Procurement Competitive Negotiation n Contract awards n n Administrative discretion I H n Cost/technical tradeoffs W H W W Technical superiority Solicitation which provides for point scoring of technical proposals and the establishment of a com- petitive range based on the technical evaluation scores for each qualified proposal indicates that award will be based on a cost/technical tradeoff, rather than made to the lowest cost technically acceptable offeror. B-237128.2, November 9, 1989 89-2 CPD ll450 Procurement Bid Protests n GAO procedures I I Protest timeliness W W W IO-day rule Prior dismissal of a protest is affirmed where the protester failed to file its protest against the award of a contract within 10 working days of the date the bases of protest were known or should have been known. Procurement Bid Protests I GAO procedures W n Protest timeliness W n n Apparent solicitation improprieties Protest against the decision to reopen discussions and to request new best and final offers (BAFOS) limited to cost submissions is untimely when filed after the closing date for the submission of the new BAFO. B-237333, November 9, 1989 89-2 CPD II451 Procurement Contractor Qualification n Responsibility n W Contracting officer findings W W m Affirmative determination W W n n GAO review Contention that the low bidder will be unable to perform at its offered price constitutes an allega- tion that the firm is not responsible; General Accounting Office generally does not review affirma- tive determinations of responsibility. Page 29 Procurement Sealed Bidding W Bids n n Errors W n n Error substantiation A protester has no standing to claim an error in a competitor’s bid, since it is the responsibility of the contracting parties-the government and the low offeror--to assert rights and bring forth the necessary evidence to resolve mistake questions. Procurement Bid Protests H GAO procedures W H Interested parties W W n Direct interest standards A protester has no standing to claim an error in a competitor’s bid, since it is the responsibility of the contracting parties-the government and the low offeror-to assert rights and bring forth the necessary evidence to resolve mistake questions. Procurement Bid Protests W GAO procedures W n Interested parties W H n Direct interest standards A protester that did not submit a proposal is not an interested party where another intermediate party of greater interest in the propriety of the award has filed a protest. B-235206.4, November 13,1989 89-2 CPD ll453 Procurement Bid Protests W GAO procedures W n GAO decisions n W W Reconsideration Request for reconsideration is denied where protester makes no showing of any legal error and claimed factual errors fail to provide a basis for reversal of decision. B-236275. November 13. 1989*** 89-2 CPD II 454 Procurement Sealed Bidding n Sureties I W Financial capacity n n n Misleading information Agency properly rejected low bid on the basis that the individual bid bond sureties were not re- sponsible where the contracting officer reasonably determined that the proposed sureties claimed excessively overvalued assets and supported those claims with documents containing material omissions and inconsistencies. Page 30 B-236334, November 13,1989 89-2 CPD II 455 Procurement Bid Protests W GAO procedures m II Protest timeliness W H W Apparent solicitation improprieties Protest against allegedly unduly restrictive specification filed approximately 4 months after the bid opening is untimely. Even if the protester first learned of its basis for protest during an in- quiry concerning the contract award which it made 3-l/2 months after bid opening, the protester did not meet its obligation to diligently pursue the basis of its protest. B-236550. November 13,1989* * * 89-2 CPD IT456 Procurement Sealed Bidding n Low bids H W Error correction W W n Price adjustments n W H W Propriety Agency’s decision to permit correction of low bid will not be questioned unless it lacks a reasona- ble basis. Correction is proper where the work sheets submitted to support the allegations of mis- take establish the mistake and the claimed intended bid by clear and convincing evidence. B-237068.2, November 13, 1989*** 89-2 CPD II 457 Procurement Competitive Negotiation W Contract awards n n Errors n W W Corrective actions W n W W Moot allegation Dismissal of protest challenging award to other than the low offeror without discussions is af- firmed where, shortly after filing of protest, agency corrected deficiency by opening discussions with all offerors in the competitive range and requesting best and final offers; although protester’s requested relief was award of contract to itself, since such relief was not appropriate, dismissal of protest as academic based on agency’s appropriate corrective action was proper. Procurement Bid Protests n GAO procedures n H Preparation costs Claim for proposal preparation and protest costs where agency took corrective action remedying alleged procurement defect in response to protest is denied since award of protest costs is contin- gent upon issuance of decision on merits finding that agency violated a statute or regulation in the conduct of a procurement. Page 31 B-236168, November 14,1989*** 89-2 CPD 7458 Procurement Competitive Negotiation n Offers n n Evaluation errors n n n Allegation substantiation Contracting agency reasonably evaluated awardee’s offer based on its proposed use of a component manufactured by protester, where protester refused to formally agree before award that it would make the component available, but the record, including a fact-finding conference, establishes that the protester made statements to the agency before award from which the agency reasonably con- cluded that the protester would make the component available in the event of an award to an- other firm. B-236462. et al.. November 14. 1989 89-2 CPD ll459 Procurement Socio-Economic Policies 1 Labor standards n n Applicability I I n Administrative determination Initial determination of whether job classifications in a solicitation are positions subject to the Service Contract Act is for the procuring activity. Procurement Socio-Economic Policies I Service contracts n n Wage rates n H n Computation n n n I Collective bargaining agreements Solicitation properly notified bidders as to applicability of collective bargaining agreement where the contracting agency incorporated into the solicitation the Department of Labor wage determi- nation which included a provision notifying offerors that the awardee will be required to comply with the collective bargaining agreement and provided two addresses where information on the agreement could be obtained. Procurement Socio-Economic Policies H Labor standards n n Service contracts n n n Wage rates W W H n GAO review General Accounting Office does not review wage rate determinations issued by the Department of Labor in connection with solicitations subject to the Service Contract Act. Page 32 Procurement Socio-Economic Policies n Labor standards n 4 Wage rates n n H Modification w n n m Effects The procuring agency is not required to cancel solicitation after bid opening to incorporate revised wage rates received more than 1 month after bid opening. B-237250, B-237251, November 14, 1989 89-2 CPD II460 Procurement Bid Protests n GAO procedures ! I I Protest timeliness n n w lo-day rule Protest filed more than 10 working days after the protester received notification of denial of its agency-level protest is untimely. I Procurement Bid Protests n GAO procedures n H Protest timeliness n n H Apparent solicitation improprieties Protest concerning an alleged apparent solicitation impropriety must be filed prior to bid opening to be timely. B-235957.2, November 15, 1989 89-2 CPD II 461 Procurement Bid Protests m GAO procedures n H GAO decisions n H & Reconsideration A contractor adversely affected by a prior General Accounting Office decision is not eligible to request reconsideration of that decision where the firm was notified of the original protest but did not participate in the protest proceedings. Procurement Bid Protests n GAO procedures n H Interested parties A contractor adversely affected by a prior General Accounting Office decision is not eligible to request reconsideration of that decision where the firm was notified of the original protest but did not participate in the protest proceedings. Page 33 B-236194. B-236194.2. November 15. 1989 89-2 CPD l-l 462 Procurement Special Procurement Methods/Categories n In-house performance W W Requests for proposals W H W Cost data I I I W Omission In Office of Management and Budget Circular No. A-‘76 procurement, agency properly may refuse to include in request for proposals (RFP) certain historical cost data where: (1) RFP contained com- prehensive statement of work describing in detail work to be done; (2) RFP included agency’s best estimates of volume of work to be done in each major work category; (3) agency reasonably was concerned that requested historical cost data would allow experienced offeror to estimate approxi- mate amount of government’s own price; and (4) historical data have not otherwise been made publicly available. B-237365, November 15, 1989 89-2 CPD l-l 463 Procurement Bid Protests n GAO procedures n n Protest timeliness n W W lo-day rule n n n W Adverse agency actions Protest that solicitation is overly restrictive filed with the contracting agency on the closing date for receipt of initial proposals, but prior to the hour specified, is untimely because agency’s pro- ceeding with the receipt of initial proposals in the face of the protest constituted adverse agency action such that protest to the General Accounting Office more than 2 months later based on agency’s written denial of the agency-level protest is untimely. B-197911.8, November 16,1989 Procurement Payment/Discharge n Shipment W W Carrier liability I I W Burden of proof Items not specifically listed on the inventory of household goods prepared by the carrier at the origin of the shipment must be specifically identified by the shipper in some manner as being in fact tendered to the carrier at origin in order for that carrier to be charged for their loss. Procurement Payment/Discharge W Shipment n W Carrier liability W n W Burden of proof A carrier is not liable for damage to an item not shown to be greater than the pre-existing damage to that item noted on the inventory prepared at the origin. Page 34 B-235431.3. November 16. 1989 89-2 CPD T[464 Procurement Specifications W Ambiguity allegation W W Specification interpretation Where the protester and the other bidder each proposed a different method of shipping what argu- ably is a hazardous material, General Accounting Office sustains protest because solicitation was ambiguous as to the permissible shipping methods. B-235642.2, November 16, 1989 89-2 CPD ll465 Procurement Bid Protests I GAO procedures H W GAO decisions W W W Reconsideration Request for reconsideration is denied where protester fails to show any error of fact or law in decision dismissing as untimely protest challenging responsiveness of two low bids based on evi- dence obtained in agency report on prior protest, where protester failed to diligently pursue infor- mation forming the basis of the protest by examining the bid documents earlier. B-236153, November 16,1989 89-2 CPD II 466 Procurement Noncompetitive Negotiation W Use W W Justification W n n Industrial mobilization bases Military agencies need not obtain full and open competition and may use other than competitive procedures when it is necessary for industrial mobilization purposes to award the contract to a particular source or sources. Therefore, since the normal concern of maximizing competition is sec- ondary to the needs of industrial mobilization, decisions as to which and how many producers should be included in the mobilization base are left to the discretion of the military agencies absent compelling evidence of an abuse of that discretion. B-236209, November 16, 1989 89-2 CPD II467 Procurement Competitive Negotiation n Offers n n Evaluation I n H Prior contract performance Where protester’s past performance and experience are evaluated in part using information ob- tained by the agency through contact of protester-furnished references, agency is not required to permit protester to rebut that information since it is historical in nature and protester thus is unlikely to be able to make a significant contribution to its interpretation. Page 35 Procurement Competitive Negotiation m Offers H n Evaluation n n W Technical acceptability Agency reasonably found awardee’s proposal to be technically acceptable where alleged shortcom- ings in initial technical and price proposals and subcontracting plan are unsupported by the record or were corrected in awardee’s best and final offer. Procurement Competitive Negotiation W Contract awards W W Administrative discretion n H n Cost/technical tradeoffs n W 8 W Technical superiority Where request for proposals provided that, in evaluating proposals, technical quality could be the deciding factor if prices were essentially equal, agency properly awarded on the basis of higher- rated, higher-priced proposal since it reasonably determined that technical advantage associated with the higher-rated proposal was worth the difference in price. B-236255, November 16, 1989 89-2 CPD 7468 Procurement Competitive Negotiation W Offers n H Price adjustments n W W Allegation substantiation n W W H Burden of proof Agency did not mislead or coerce protester into raising its labor rates where the agency was rea- sonably concerned that protester had proposed unreasonably low rates and, in discussions, offered protester the choice of proposing more realistic rates or explaining how it could absorb the cost differential between its proposed rates and the probable coat of performance. Procurement Socio-Economic Policies W Small businesses H W Responsibility W W n Competency certification W W W W Negative determination Where offerors’ financial capability, traditionally a matter of responsibility, is included 86 a tech- nical evaluation criterion, but is not the subject of a comparative evaluation, contracting officer did not act unreasonably to resolve his doubts about small business offeror’s financial capability to perform in determining that offeror was not responsible and referring the matter to the Small Business Administration under the certificate of competency procedures. Page 36 Procurement Contractor Qualification 1 Responsibility n W Financial capacity W n n Contractors Where offerors’ financial capability, traditionally a matter of responsibility, is included as a tech- nical evaluation criterion, but is not the subject of a comparative evaluation, contracting officer did not act unreasonably to resolve his doubts about small business offeror’s financial capability to perform in determining that offeror was not responsible and referring the matter to the Small Business Administration under the certificate of competency procedures. Procurement Competitive Negotiation W Discussion W W Determination criteria Awardee’s addition of new credit sources to improve financial status during Small Business Ad- ministration certificate of competency process does not constitute improper discussions requiring agency to reopen discussions with all offerors in the competitive range. B-236713.2, November 16, 1989 89-2 CPD IT469 Procurement Small Purchase Method l Small business set-asides n W Requests for quotations n W n Cancellation W I I m Propriety Agency decision to cancel small business-small purchase set-aside and complete the purchase on an unrestricted basis was improper where the agency received a reasonable quotation from a re- sponsible small business. B-236161, B-236250, November 17, 1989 89-2 CPD l’l470 Procurement Sealed Bidding n Responsiveness H H Contractors n H n Identification Protests are sustained where agency rejection of protester’s bids as nonresponsive due to uncer- tainty as to the bidder’s identity was based only on minor discrepancies in the bids which did not call into question the identity of the actual bidder. B-236251, November 17,1989 89-2 CPD ll471 Procurement Sealed Bidding W Bid guarantees W n Sureties W n W Acceptability Rejection of protester’s bid was proper where agency reasonably found that protester failed to pro- vide sufficient information to permit finding the individual sureties on its bid bond acceptable. Page 37 B-236392, November 17,1989 89-2 CPD 7472 Procurement Competitive Negotiation n Requests for proposals H n Quotations n n n Late submission Contracting agency was not required to consider a quotation which the buyer received after award as a result of the offeror’s marking an incorrect solicitation number on the envelope containing the quotation. B-236430, November 17,1989 89-2 CPD II 473 Procurement Contract Management n Contract administration n n Warranties H n n Replacement Protest by manufacturer of allegedly defective fuzes against award of contract for rework effort to another firm is dismissed where award to protester would effectively require relinquishment of agency’s right to assert claim against protester under its warranty clause. B-236518, November 17, 1989 89-2 CPD II 474 Procurement Sealed Bidding n Bid guarantees n n Responsiveness H n n Contractors n n n n Identification A bid bond is defective and its accompanying bid is properly rejected as nonresponsive when the bid is submitted in the name of a corporation, albeit certified as operating as a “joint venture,” and the accompanying bid bond names as principal a joint venture consisting of the corporation named in the bid and a sole proprietorship, since the surety’s liability to the government under the bond issued to the joint venture is unclear in the event of the corporate bidder’s default. B-236776. November 17.1989 89-2 CPD II 475 Procurement Competitive Negotiation n Offers n n Evaluation l l I Technical acceptability Agency reasonably rejected protester’s initial proposal as technically unacceptable where proposal contained informational omissions and lacked supporting data necessary to determine whether protester met the solicitation requirements; protester’s assertion that it is an experienced service contractor whose proposals had never been determined unacceptable in previous solicitations is not sufficient to establish acceptability for current procurement. i Page 38 B-237225.2, November 17,1989 89-2 CPD Tl476 Procurement Contractor Qualification W Responsibility l n Contracting officer findings W n U Affirmative determination W W l n GAO review The General Accounting Office will not review an affirmative responsibility determination absent a showing of possible fraud or bad faith or misapplication of definitive responsibility criteria. B-236160, November 20, 1989*** 89-2 CPD 1477 Procurement Bid Protests W GAO procedures W n Protest timeliness n W n Apparent solicitation improprieties Protest allegation that agency failed to synopsize sole-source procurement properly, not filed until after award of the contract, is untimely and therefore not for consideration under the Bid Protest Regulations of the General Accounting OfFice. Procurement Noncompetitive Negotiation n Contract awards n q Sole sources l q n Propriety Agency decision to award sole-source contract to the only known qualified source is proper where agency does not have the necessary data to conduct a competitive procurement or sufficient time to test an unproven product. Procurement Noncompetitive Negotiation W Atternate offers W n Rejection n n H Propriety Protester has the responsibility of demonstrating that its product is an acceptable alternative to the designated solesource item, and where agency has reviewed protester’s submittal and reason- ably concluded that acceptability of the firm’s product cannot be determined without testing, agency has fulfilled its obligation to consider protester’s proposal and need not conduct discussions with the offeror. Procurement Noncompetitive Negotiation n Issuance n I Lacking Protest of agency’s correction of an apparent solicitation ambiguity, after receipt of proposals sub- mitted in response to a sole-source procurement, without issuing an amendment is denied since the protester, which submitted a nonconforming proposal, was not prejudiced by the agency’s action. Page 39 I Procurement Noncompetitive Negotiation W Alternate offers W n Rejection W H m Propriety Where protester failed to offer an acceptable product in response to a sole-source procurement, neither the contracting agency’s delay, if any, in advising protester of the contract award, nor its decision not to conduct a debriefing, which are procedural matters, affect the propriety of its rejec- tion of the protester’s proposal. B-236167, November 20,1989 89-2 CPD ll478 Procurement Specifications n Brand name specifications W n Salient characteristics W W n Sufficiency The low offeror’s product conforms to the salient characteristics of the brand name product, as listed in the solicitation, despite some differences in design between the two products, where indua- try literature establishes that the differences are immaterial and do not affect the ability of the low offeror’s product to meet the solicitation requirements. Procurement Specifications H Brand name/equal specifications n W Equivalent products H n W Salient characteristics II II W n Descriptive literature Where a request for proposals (RFP) requests offers on certain brand name products and lists spe- cific salient characteristics of these products, other products which comply with listed characteris- tics can be offered, even though RFP did not contain “brand name or equal” clause, where RFP otherwise indicates that equal products could be offered. B-236499, November 20, 1989 89-2 CPD ll479 Procurement Government Property Sales W Timber sales W n Bids H W W Acceptance time periods Where during Forest Service timber auction bidder submits an oral bid simultaneously with the auction closure statement, the auction officer properly held the auction open to allow the bidder an opportunity to submit its bid. Page 40 B-236739, November 20,1989 89-2 CPD ll481 Procurement Bid Protests W Allegation H W Abandonment Where agency rebuts an issue raised in the initial protest, and the protester fails to respond to the agency’s rebuttal in its comments to the agency report, the issue is deemed abandoned. Procurement Competitive Negotiation n Offers W l Evaluation H W n Options n n m W Prices Protest that agency had insufficient justification for considering and evaluating option prices is denied where agency reasonably expects to buy sufficient option quantities to insure that award- ee’s offer will ultimately provide the lowest coat to the government. B-237323.2, November 20,1989 89-2 CPD ll480 Procurement Bid Protests H GAO procedures W I GAO decisions W W W Reconsideration Protest against decision to request new best and final offers (BAFOs) filed after the new closing date was properly dismissed as untimely. Verbal complaint filed with the agency prior to new ~10s ing date did not constitute a valid agency-level protest, and thus did not render later protest to General Accounting Office timely, because regulations require such complaints to be in writing. Procurement Bid Protests W Agency-level protests n n Oral protests Protest against decision to request new best and final offers (BAFOs) filed after the new closing date was properly dismissed as untimely. Verbal complaint filed with the agency prior to new clos- ing date did not constitute a valid agency-level protest, and thus did not render later protest to General Accounting Office timely, because regulations require such complaints to be in writing. B-232496, November 21, 1989 Procurement Payment/Discharge m Shipment W n Tenders W W I Terms n n n H Interpretation This summary letter decision addresses well established rules which have been discussed in previ- oua Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. Page 31 B-236239, November 21,1989 89-2 CPD II 482 Procurement Special Procurement Methods/Categories W Service contracts W W Terms Where solicitation for base operations and maintenance covered by the Service Contract Act in- cludes language calling for the “repair or replacement” of utility systems and equipment, such repair or replacement work is considered in the context of accomplishing routine maintenance when agency has also issued a separate solicitation for indefinite quantity multi-trade construction work which it states it will utilize for work covered by the Davis-Bacon Act. B-236273, November 21, 1989 89-2 CPD ll483 Procurement Bid Protests n Subcontracts W n GAO review E Protest challenging propriety of a subcontract awarded by a government prime contractor is dis missed for lack of jurisdiction where the subcontract award was not made “by or for” the govern- ment: the prime contractor is not providing large-scale management services to the government or otherwise acting as a middleman or conduit for the government; and the government is not active- ly and directly involved in the procurement process or selection of the subcontractor. B-236294. November 21. 1989 89-2 CPD ll484 Procurement Competitive Negotiation n Offers W n Cost realism n n n Evaluation n W n H Administrative discretion Protest that awardee’s offer is unrealistically low does not provide a basis for the agency to reject a technically acceptable proposal offering fixed and ceiling type prices, absent a finding of nonre- sponsibility. Procurement Competitive Negotiation W Discussion W n Adequacy W n n Criteria Where a proposal is considered acceptable and in the competitive range, the agency is under no obligation to discuss price where the agency does not view the offeror’s price as unreasonably high. Page 42 Procurement Competitive Negotiation n Discussion reopening W I Propriety W n n Best/final offers W W n m Alternate offers Agency is not required to reopen discussions after receipt of best and final offers to determine the acceptability of a deficient alternate proposal first submitted at that time. B-236332, November 21,1989 89-2 CPD ll485 Procurement Competitive Negotiation W Contract awards n W Initial-offer awards n H l Propriety Award properly was made to the lowest priced, technically acceptable offeror on the basis of ini- tial offers where the solicitation advised offerors of that possibility and the existence of full and open competition under the solicitation clearly demonstrated that such award would result in the lowest overall cost to the government. B-237062.2, November 21,1989 89-2 CPD II486 Procurement Bid Protests W GAO procedures n n Protest timeliness W W l Apparent solicitation improprieties Procurement Bid Protests I GAO procedures W W GAO decisions I n n Reconsideration Prior dismissal of protest as untimely is affirmed where protest that solicitation should not have been set aside for small business was not filed in the General Accounting Office (GAO) until after award. The alleged advice of the contracting officer to delay filing does not result in waiver of the timeliness requiremente of GAO’s Bid Protest Regulations. 8-236238, November 22,1989 89-2 CPD ll487 Procurement Competitive Negotiation m Discussion reopening n W Propriety Contracting agency is not required to reopen discussions regarding extent of technical data rights proposed by offeror when cost-sharing is introduced in best and final offer (BAFOI where the work called for in the RFP falls within Defense Federal Acquisition Regulation Supplement 5 227.472-&(a)(l)(ii), but the contract deliverables section of the RFP does not specify that all raw data is to be delivered to the government, and the offeror did not indicate in its cost-sharing BAFO that it would give the required unlimited data rights to the government. Page 43 B-236264, November 22,1989 89-2 CPD l7 488 Procurement Bid Protests n GAO procedures I n W Protest timeliness I n n Apparent solicitation improprieties Procurement Bid Protests W GAO procedures W W Protest timeliness n I I lo-day rule Protest alleging that solicitation contained ambiguity where the alleged ambiguity was apparent from the face of the solicitation is untimely when filed after the closing date for receipt of propos- als. To the extent the protester contends ambiguity was not apparent, protester is also untimely where it was filed with our Office more than 10 days after protester was on notice of agency’s interpretation of allegedly ambiguous clause. Procurement Competitive Negotiation H Offers n I Evaluation H H W Technical acceptability n mWHTests Protest alleging that failure to timely provide test results on office furniture should not be grounds for rejection of offer, since furniture offered actually met test standards, is denied where offeror failed to submit test data with offer or within 15 days of notice of deficiency as required by the solicitation. B-236329, November 22, 1989 89-2 CPD ll489 Procurement Sealed Bidding W Bid guarantees W W Responsiveness W W n Signatures W I n W Sureties Where bidder submitted bid bond which is a photocopy not containing original signatures, con- tracting officer properly rejected bid as nonresponsive because the bid bond is of questionable en- forceability. B-236357, November 22,1989 89-2 CPD l-l 490 Procurement Competitive Negotiation W National defense interests W H Industrial mobilization bases Where award only to low offeror ia consistent with agency defense mobilization needs, protest com- plaining of lack of meaningful discussions and improper rejection of best and final offer (BAFO) is denied where the record shows that, had the protester been given the opportunity to cure uncer- tainties in its BAFO, it would not have resulted in a reduction in the protester’s price sufficient to affect the decision to award to only one mobilization base producer. Page 44 B-236386, November 22,1989 89-2 CPD ll491 Procurement Competitive Negotiation W Offers H n Late submission W n W Acceptance criteria Protest that oral advice of agency official resulted in firm failing to submit timely proposal is denied, where such oral advice was correct in terms of advising protester of extended proposal due date and, in any event, protester was not precluded by agency official’s actions from earlier sub mitting its proposal. Procurement Competitive Negotiation W Requests for proposals W W Amendments W n I Notification n n W n Contractors Protest based upon alleged failure of offeror to receive amendment to request for proposals is denied absent evidence that failure resulted from deliberate attempt on the part of the agency to exclude firm. Procurement Competitive Negotiation I Requests for proposals n n Amendments m W W Criteria Agency reasonably determined to amend rather than cancel solicitation after receipt of initial pro- posals where changes to be made were de minimis in nature. Moreover, protester was reasonably excluded from submission of revised proposals where Arm did not timely submit initial proposal for reasons unrelated to the changes made by amendment. B-236416.2, November 22,1989*** 89-2 CPD II 492 Procurement Sealed Bidding H All-or-none bids R H Responsiveness Standard clause in invitation for bids providing that bids for supplies or services other than those specified will not be considered does not constitute a prohibition on “all or none” bids so aa to render nonresponsive a bid containing an “all or none” qualification. Procurement Sealed Bidding W Bids W n Acceptance time periods n R W Expiration WI W W Reinstatement Expiration of bid acceptance period is tolled where bidder files protest challenging rejection of its bid and award to another bidder within the original bid acceptance period. Page 45 B-236421.3, November 22, 1989 89-2 CPD !‘I493 Procurement Bid Protests W Dismissal H n Definition Protest of a solicitation, which is based not on defects in that solicitation but rather on the cancel- lations of two prior solicitations, will not be considered since a similar protest against the two cancellations was dismissed previously due to the protester’s failure to comply with procedural re- quirements of the General Accounting Office’s Bid Protest Regulations. B-236432, November 22, 1989 89-2 CPD 7-l494 Procurement Competitive Negotiation 8 Contract awards n n Administrative discretion W I n Cost/technical tradeoffs W n n W Technical superiority Allegation that protester is entitled to award on the basis of its low price offer is denied where the agency reasonably determined that the technical superiority of the awardee’s proposal justified the cost premium. Procurement Competitive Negotiation n Contract awards I n Propriety Allegation that procuring agency failed to comply with its streamlined source selection procedures is denied since these procedures are internal agency instructions which do not provide the protest- er with any legal rights and, in any event, the protester has not shown that it was prejudiced by the alleged noncompliance. Procurement Competitive Negotiation n Contract awards W W Personnel W W n Substitution WI I m Propriety Allegation that awardee misrepresented the availability of a key employee is denied where the record establishes that the awardee did not propose an individual whom it knew would be unavail- able. Page 46 B-236489, November 22,1989 89-2 CPD II 495 Procurement Competitive Negotiation W Offers W W Technical acceptability n W n Negative determination i l I l m Propriety Agency Properly Rejected Proposal as technically unacceptable where proposal did not include sufficient information to satisfy requirement for 10 years documentable slate/concrete tile roofing experience after agency gave offeror ample opportunity to correct the deficiency. B-236994.2, November 22, 1989 89-2 CPD ll496 Procurement Bid Protests W GAO procedures W W Protest timeliness W I l lo-day rule n H W n Adverse agency actions Protest of alleged solicitation improprieties (defective specifications) is untimely where an agency- level protest was timely filed before the closing date for receipt of quotations, but where subse- quent protest to the General Accounting Office was filed more than 10 working days after initial adverse agency action with respect the protest. Procurement Bid Protests W GAO procedures N n Protest timeliness n W m lo-day rule Protest of the agency’s evaluation methodology that did not include particular specifications as part of the technical evaluation and that competition was restricted is untimely where not filed within 10 working days after the protester learns of the basis for protest. B-237441, November 22,1989 89-2 CPD ll497 Procurement Bid Protests n GAO procedures II Protest timeliness W W R lo-day rule Protester who waits more than 6 weeks after it was notified of award and contract price, and 5 weeks after debriefing, to submit Freedom of Information Act request for information concerning possible grounds of protest, has failed to diligently pursue such information, and protest subse quently filed is therefore untimely. Page 41 B-236260, November 27, 1989 89-2 CPD ll498 Procurement Specifications n Performance specifications n H Adequacy Solicitation is not deficient for failure to itemize exact equipment to be cleaned under service con- tract where information contained in solicitation and available during site visits should be suffi- cient to enable prospective bidders to prepare bids intelligently and on a common basis. Procurement Specifications n Performance specifications n H Adequacy Solicitation provisions do not contain conflicting requirements where one provision provides gener- al listing of janitorial supplies to be furnished by contractor, and another section requires the con- tractor to furnish additional supplies not on the general list; read as a whole, solicitation clearly encompassed requirements set forth in both provisions. Procurement Specifications n Minimum needs standards I W Risk allocation n n H Performance specifications Contracting agency properly may structure procurement to impose maximum risk on contractor and minimize the potential burdens on the government. B-236318. November 27.1989 89-2 CPD ll499 Procurement Special Procurement Methods/Categories l Requirements contracts mWUse n W n Criteria Protest is denied where record supports agency determination that intelligence-related uses of cer- tain computer equipment place that equipment within the scope of an existing requirements con- tract to support a multi-agency intelligence system, notwithstanding protester’s unsupported asser- tions that the determination was incorrect and that a separate procurement should have been con- ducted. B-233740.4. November 28.1989 89-2 CPD ll500 Procurement Sealed Bidding I Bid opening n l Extension n n w Refusal n W W n Justification Protest that agency should delay bid opening until after Department of Labor issues modified wage determination to assure competition on an equal basis is denied; since wage determination Page 48 issued after bid opening is not applicable to solicitation, all bidders are competing equally, on basis of current wage determination. B-237351.2, November 28,1989 89-2 CPD ll501 Procurement Competitive Negotiation W Below-cost offers l W Acceptability Dismissal of protest is affirmed on reconsideration where protester argues that awardee would not have been found acceptable for award had technical evaluators known of awardee’s allegedly ex- treme low price for the work, there is no requirement that evaluators have access to prices in determining proposal acceptability, and there is no basis for the contracting officer to reject an otherwise acceptable proposal from a responsible offeror on the ground that the awardee may sus- tain a financial loss in performing the contract. B-236072.2 et al.. November 29. 1989 89-2 CPD ll502 Procurement Specifications W Minimum needs standards W n Competitive restrictions W W n Justification W W n l Sufficiency Specifications for photocopying services requiring new or newly manufactured copiers, equipment in current production and 1 dedicated service technician for every 40 copiers provided are not unduly restrictive of competition where the agency presents a reasonable explanation of why the specifications are necessary to meet its minimum needs and the record fails to show that the re- strictions are unreasonable. Procurement Specifications l Minimum needs standards n n Determination m I n Administrative discretion Protests that solicitations contain defective quantity estimates which exceed agencies’ actual needs are denied where estimates were obtained from and verified by specific user agencies as realistic estimates of their copier needs based upon historical agency use and best estimates of future demand for copying services. Procurement Specifications W Minimum needs standards n W Competitive restrictions n W H Justification n W W W Sufficiency Protest alleging that solicitation for diesel engine generators unduly restricts competition by speci- fying certain engine brake mean effective pressure and speed is denied where protester fails to show that agency’s technical judgment regarding engine pressure and speed is unreasonable and at least three firms, including protester, manufacture engines that comply with specifications. Page 49 Procurement Specifications W Minimum needs standards n n Competitive restrictions n n W Performance specifications W W W W Justification Experience requirements in solicitation that must be met by prior performance of engines under similar conditions which will be encountered during contract performance (ambient temperature/altitude and fuel) are not overly restrictive where agency is attempting to assure itself of reliability of diesel engines for continuous use. Procurement Socio-Economic Policies W Preferred products/services H n Domestic sources n W H Compliance Protest that specification, as amended, favors European manufacturers over American firms is denied where agency relaxed specification to obtain greater competition and solicitation contains Buy American Act and Balance of Payment clauses for use in evaluating foreign offers. Procurement Specifications s W Minimum needs standards n W Competitive restrictions n n n Performance specifications n I I I Justification General Accounting Office does not agree with protest contention that solicitation should contain evaluation factor for oil consumption and maintenance costs where agency evaluation follows pro- curement guidelines in National Academy of Science technical report on diesel engines and oil consumption and maintenance costs were considered by agency in setting engine speed and size requirements. B-236187.2, B-236187.3, November 29,1989 89-2 CPD ll503 Procurement Specifications W Minimum needs standards W W Competitive Restrictions W H W Justification n W W I Sufficiency i Procurement Specifications n Minimum needs standards H W Competitive restrictions W W W Performance specifications I I I n Justification Page 50 Procurement Socio-Economic Policies n Preferred product/services W W Domestic sources WI W Compliance B-237613, November 29,1989 89-2 CPD II504 Procurement Sealed Bidding n Bid guarantees n n Sureties n m W Acceptability Protester’s bid is properly rejected as nonresponsive where the corporate surety for the protester’s bid bond is not listed in Treasury Department Circular 5’70 at the time of bid opening, and such a deficiency may not be corrected after bid opening. B-236345, November 30, 1989*** 89-2 CPD ll505 Procurement Competitive Negotiation W Discussion reopening n n Propriety W W n Best/final offers H n m W Price adjustments Determination of whether the reopening of negotiations based on a late proposal modification is in the government’s best interest is within the contracting officer’s discretion; decision to reopen where the late modification showed the availability of prices significantly lower than those re- ceived in best and final offers does not constitute an abuse of discretion. B-236403, November 30,1989 89-2 CPD ll506 Procurement Sealed Bidding n Bids W W Error correction n n W Low bid displacement W W W W Propriety Protest of contracting agency’s decision not to permit the protester to correct a mistake in bid is denied where correction would have displaced the low bidder and the protester’s intended bid price is not apparent from the bid itself. B-236515, November 30, 1989 89-2 CPD ll 510 Procurement Bid Protests n GAO procedures W W Protest timeliness H m n IO-day rule Protest against alleged improper technical evaluation under small purchase procurement is dis- missed as untimely for lack of diligent pursuit where the protester waited approximately 5 months to receive the contracting agency’s final response to its agency-level protest before filing its protest at the General Accounting Office. Page 51 For: Telephone research service regarding Comptroller General decisions: (202) 275-5028 Information on pending decisions: (202) 275-5436 Copies of decisions: (202) 275-6241 Request to be placed on mailing lists for GAO Publications: (202) 275-4501 Questions regarding this publication: (202) 275-4501
Digests of Decisions of the Comptroller General of the United States, Vol. I, No. 2
Published by the Government Accountability Office on 1989-11-01.
Below is a raw (and likely hideous) rendition of the original report. (PDF)