oversight

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)

                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Unpublished   Decisions of the Comptroller      General of the United States tc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
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