oversight

Digests of Decisions of the Comptroller General of the United States, Vol. I, No. 4

Published by the Government Accountability Office on 1990-01-01.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

I                      Digests of Decisions
    January   I!+!)0



                       of the Comptroller
                       General of the
                       United States
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


Preface                                   *..
                                          111


Table of Decision Numbers                 iv
Digests
  Appropriations/Financial   Management     1
  Civilian Personnel                        3
  Military Personnel                        9
  Miscellaneous Topics                    10
  Procurement                             11




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 $ 3529 (formerly 31 U.S.C. $3 74 and 82d). Decisions concerning
claims are issued in accordance with 31 U.S. Code $ 3702 (formerly 31 U.S.C. $
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 this
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 (1989).




Page iii
Table of Decision Numbers


B-226941.5, January 26,199O                              60    B-235849.2, January 3, 1990        14
B-227179.2, January 5, 1990                              13    B-235977.2, B-235977.3, January
B-230078.2, B-230079.2, January                                4, 1990                            15
26, 1990***                                              60    B-235979, January 5, 1990           4
B-230385, January 16, 1990                                5    B-236061.2, January 4, 1990        16   i
B-231513, January 16, 1990”*                              1    B-236110, January 26, 1990          7
B-231717, January 10, 1990                                4    B-236189.2, January 8,199O         23
B-232354, January 16, 1990***                             9    B-236236.2, January 10, 1990       26
B-233404.2, January 26, 1990***                           9    B-236265.2, January 25, 1990** *   57
B-233454, January 31, 1990                                8    B-236270, January 26, 1990          9
B-233742.4, January 31, 1990”’                           69    B-236311, B-236313, January 8,
B-233841, January 26, 1990* * *                           7    1990                               24
B-234142.3, January 9,199O                               25    B-236373.6, January 23, 1990       49
B-234500.2, January 2, 1990                               3    B-236491, B-236493, January 24,
                                                               1990                               54
B-234624.2, January 22, 1990                             44
                                                               B-236544.2, January 17, 1990       34
B-234799, January 11,199O                                 5
                                                               B-236597.2, January 3,199O         14
B-234954, B-235043, January 17,
1990                                                      1    B-236640.2, January 10, 1990       27
B-235167, January 8, 1990                                 1    B-236667, January 26,199O           2
B-235203, January 2, 1990                                 3    B-236673, January l&l990           33
B-235205.2, January 5, 1990                              19    B-236698.2, January 17, 1990       35
B-235239.2, January 16, 1990”* *                         33    B-236702, January 4, 1990          16
B-235374, January 11, 1990                                5    B-236725.2, January 29, 1990       64
B-235431.4, et al., January 29,                                B-236733.2, January 26, 1990       61
1990                                                     63    B-236742, B-236743, January 23,
B-235526.2, January 8, 1990                              23    1990                               49
B-235583.2, B-235584.2, January                                B-236746.2, January 19, 1990       40
22,199o                                                  44    B-236751, January 2, 1990           3
B-235635.2, January 5, 1990                              19    B-236755, January 5, 1990          20


“‘(notes        published decisions) Cite published decisions as 69 Camp. Gm-




Page       iv




                                                                                                       i
                                                                                  i


Table of Decision Numbers




                                    Page                                   Page
B-236765.2, January 18, 1989         37    B-236960, January 17,199O        35
B-236777.2, January 2, 1990          11    B-236964, January 23,199O        51
B-236784, January 9,199O             26    B-236973, January 5, 1990        21
B-236790. Januarv 10. 1990** *       27    B-236974.2, January 24, 1990     55
B-236799, et al., January 4, 1990    16    B-236975, January 11,199O        29
B-236814, January 4,199O             17    B-236981, January 29,199O        64
B-236833, January 8, 1990            24    B-236984, January 2, 1990        13
B-236839, January 5, 1990            20    B-236985.2, January 23, 1990     51
B-236841.2, January 3,199O           14    B-236988, B-236988.2, January
B-236848, January lo,1990            27    25. 1990                         57
B-236850, January 2,199O             12    B-237005, January 5,199O         21
B-236865, January 5, 1990            20    B-237008, January 25,199O        58
B-236871, January 12,1990***         30    B-237009, January 12, 1990***    32
B-236873, January 19, 1990           40    B-237019,
B-236892, January 9,199O             26    B-237020.2,
B-236893, January 11, 1990           29    B-237032, B-237032.2, January
B-236894. Januarv 12.1990                  11, 1990                         30
                                     31
                                           B-237033, January 23, 1990       52
B-238903,
                                           B-237047, January 29, 1990       64
B-236911, January 12, 1990***        31
                                           B-237049, January 29,199O        64
B-236920, January 23, 1990           50
B-236927. Januarv 23.1990***         50    B-237054, January 29, 1990***    65
B-236930, January 19, 1990                 B-237067.2, January 30, 1990     67
                                     41
                                           B-237069, January 26, 1990       61
B-236931, January 18, 1990           38
B-236932. Januarv 19. 1990***              B-237070, January 11, 1990       30
                                     41
B-236933, January 22,1990** *        45    B-237083, January 19, 1990       43
B-236943, January 18, 1990                 B-237121, January 17, 1990       36
                                     38
B-236952, January 22, 1990                 B-237122, January 4,1990***      17
                                     46
B-236953.2, Januarv 31. 1990               B-237138, January 16,199O        33
                                     69




Page v
Table of Decision Numbers




                                     Page                                     Page
B-237139, January 5,1990***           21    B-237325, January 24, 1990***      56
B-237150, January 17, 1990            36    B-237338, January 25, 1990         59
B-237158, January 19, 1990            43    B-237352, January 26, 1990         62
B-237161. Januarv 4. 1990             18    B-237383, January 22, 1990         48
B-237172, January 19, 1990***         43    B-237384, January 26, 1990         63
B-237180, January 17,199O                   B-237385, January 8,199O           25
B-237184, et al., January 10, 1990    28    B-237387, B-237388, January 24,
B-237190, B-237192, January 24,             1990                               56
1990                                  55    B-237414, January 31, 1990         69
B-237193.3, January 8,199O            24    B-237415, January 22, 1990         48
B-237201, B-237201.3, January               B-237429, January 4,199O           18
30.1990                               67    B-237450, January 18, 1990         39
B-237209, January 22, 1990            47    B-237467, January 22,199O          49
B-237211.2, January 18, 1990          38    B-237627, B-237631, January 23,
B-237214, January 25, 1990            58    1990                              53
B-237228, January 25, 1990            59    B-237653, January 18,199O         39
B-237234, January 18, 1990             6    B-237685, January 5, 1990***      22
B-237239, January 23, 1990            53    B-237696, January 5, 1990         22
B-237245, et al., January 29,               B-237733.2, January 30, 1990      68
1990***                               65    B-237745, January 24, 1990        56
B-237249,   January 16, 1990***       34    B-237746, January 29, 1990        66
B-237259,   B-237259.2, January             B-237820, January 16, 1990        34
12, 1990                              32
                                            B-237876, January 5, 1990         23
B-237282,   January   29, 1990***     65
                                            B-237883,   January   5, 1990      4
B-237285,   January   30, 1990        68
                                            B-237888.2, January 8, 1990       25
B-237289,   January   5, 1990         21
                                            B-237919.3, January 12, 1990      10
B-237291,   January   22, 1990***     47
                                            B-237919.3, January 12, 1990      32
B-237293,   January   23,199O         53
                                            B-237947, January 18, 1990         7
B-237321,   January   22,1990***     48




Page vi
Table of Decision Numbers




                                    Page                                  Page
B-237964.2, January 29, 1990         66    B-238078, January 23, 1990      54
B-237986.3, January 17, 1990         37    B-238131, January 29, 1990      66
B-238032, January 26, 1990                 B-238220.2, January 29, 1990    67
B-238068, et al., January 2, 1990    14    B-238226, January 18, 1990      40




Page vii
Appropriations/Financial
Management

B-235167, January 8, 1990
Appropriations/Financial  Management
Accountable Officers
n Cashiers
H n Relief
W n n Physical losses
WWDHTheft
Cashier is relieved of liability for loss of funds in the amount of approximately $7,278. Presump
tion of negligence on the part of the accountable officer is rebutted when the record shows there is
evidence of faulty agency security resulting in knowledge of the safe combination by persons other
than the accountable officer.

B-231513, January 16,1990***
Appropriations/Financial Management
Judgment Payments
I Permanent/indefinite      appropriation
M H Availability
A court order finding defendant agency guilty of discrimination      and directing the specific adminis-
trative action of developing new, nondiscriminatory employment systems is not a money judgment
for which 31 USC. 5 1304, the Judgment Fund, is available as a source of funding. The fees and
expenses of an expert paid for by defendant agency to help develop the new systems were neither
“costs” of the litigation nor part of the plaintiffs’ attorney fees. Accordingly, the expert’s fees and
expenses are properly paid for out of agency appropriations, not the Judgment Fund.

B-234954, B-235043, January 17,199O
Appropriations/Financial  Management
Accountable Officers
l Disbursing officers
II W Liability restrictions
n W I Statutes of limitation
Since Treasury disbursing offXal received notice of losses resulting from the negotiation of both
the original and replacement checks more than three years ago, this Offlice is unable to grant
relief. The accountable officer has no personal liability since the applicable accounts have been
settled by operation of law. We consider the date of receipt by the agency of substantially com-
plete accounts, or where records are retained at the site, the end of the period of the account, as
the point from which the 3-year limitation period begins to run.



Page 1                                                                       Digests-January       1990
B-236667, January 26,199O
Appropriations/Financial Management
Appropriation Availability
W Amount availability
m U Augmentation
m W n Lump-sum appropriation
Appropriations/Financial            Management
Appropriation Availability
n Purpose availability
H n Lump-sum appropriation
n n W Augmentation
I n W n Multi-year appropriation
The Department of Education may use funds in its fiscal year 1990 lump-sum appropriation for
Student Financial Assistant to meet projected shortfalls in its 1989-1990 Pell Grant award year in
addition to $131 million provided for that purpose. On its face the appropriation is available for
obiigation from October 1, 1989 through September 30, 1991, which includes nine months of the
1989-1990 award year. There is also nothing in the language of the appropriation indicating that
the $131 million was intended to be the exclusive amount available for shortfalls. Further, the
legislative history of the appropriation shows a clear intent that funds from the lumpsum appro-
priation be used to cover the shortfall should the $131 million prove insufficient.




Page 2                                                                  Digests-January      1990
Civilian Personnel

B-234500.2, January 2,199O
Civilian Personnel
Relocation
H Residence transaction     expenses
H n Reimbursement
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-235203, January 2,199O
Civilian Personnel
Relocation
n Temporary quarters
W n Actual subsistence expenses
n n W Eligibility
I l H n Extension
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-236751, January 2,199O
Civilian Personnel
Leaves Of Absence
W Sick leave
n n Charging
n H n Retroactive adjustments
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 3                                                                   Digests-January      1990
B-235979, January $1990
Civilian Personnel
Relocation
W Temporary quarters
n n Actual subsistence expenses
W n W Reimbursement
n W I W 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.

B-237883, January 5,199O
Civilian Personnel
Travel
W Travel expenses
W n Credit cards
WBWUse
n W W W Procedures
Standards for allowing Department of Commerce to use corporate charge cards under limited cir-
cumstances are discussed.

B-231717, January lo,1990
Civilian Personnel
Relocation
W Expenses
n H Reimbursement
n H W Eligibility
n W W n Government advantage
Civilian Personnel
Relocation
n Household goods
n I Commuted rates
n n W Reimbursement
W n n 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.




Page 4                                                                  Digests-January      1990
B-234799, January 11,199O
Civilian Personnel
Compensation
n Work schedules
n B Time/attendance     reports
Civilian Personnel
Leaves Of Absence
n Leave-without-pay
n 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-235374, January l&l990
Civilian Personnel
Relocation
B Residence transaction expenses
n n Reimbursement
n n n Eligibility
n U n n New residence construction
Civilian Personnel
Relocation
n Residence transaction expenses
n n Taxes
n B n Reimbursement
n Ha n Eligibility
This summary letter decision addresees 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-230385, January l&l990
Civilian Personnel
Travel
n Travel expenses
I n Documentation procedures
n n m Burden of proof
Where an employee submits false receipts for lodgings in connection with temporary duty travel,
the evidence may overcome the presumption of honesty and fair dealing and constitute fraud. A
fraudulent claim for lodging costs taints the entire claim of per diem for a given day.




Page 5                                                                   Digests-January     1990




                                                                                                     i
Civilian Personnel
Travel
n Actual subsistence expenses
n l Fraud
H n n Allegation substantiation
n n n n Evidence sufficiency
Where the agency does not establish fraud by the employee in the submission of claims for Iodging
costs, the agency may still deny reimbursement or recoup prior payments for lodging costs if the
employee has not submitted sufficient evidence that the costs were actually incurred.

Civilian Personnel
Travel
n Lodging
I n Expenses
H w n Reimbursement
An employee’s claim for temporary duty lodging costs in a residence which he owns and holds as
rental property may not be paid absent cIear and convincing evidence that but for his lodging
there while on temporary duty, the residence would have been rented during the period of his
claim.

Civilian Personnel
Travel
n Actual subsistence expenses
W W Vouchers
n n H Payments
n n m H Propriety
The requirement in paragraph l-11.4 of the Federal Travel Regulations for supervisory review of
travel vouchers merely requires a verification that the travel was performed and does not require
a verification of the expenses claimed.

B-237234, January l&l990
Civilian Personnel
Compensation
H Overpayments
n n Error detection
n n n Debt collection
n H n n 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.




Page 6                                                                  Digests-January      1990
                                                                                                          I

B-237947, January 18, 1990
Civilian Personnel
Relocation
n Residence transaction expenses
n n Miscellaneous expenses
n l I Reimbursement
An employee who contracted to buy a house at her old duty station and then responded to a va-
cancy announcement, accepted a new job, and transferred to a new duty station, forfeited a real
estate deposit when she did not fulfill the contract to buy the house at the old duty station. The
forfeited deposit may not be reimbursed as a residence transaction expense under 5 U.S.C.
5 5724a(aX4) but may be reimbursed as a miscellaneous expense under 5 U.S.C. 9 5724afi) and im-
plementing regulations in Federal Travel Regulations (FTR), para. Z-3.3 (Supp. 4, Aug. 23, 1982).     i
The employee may be reimbursed more than the $700 already paid for miscellaneous expenses
under FTR, para. Z-3.3a only by documenting under FTR, para. 2-3.3b all the miscellaneous ex-
penses claimed, regardless of the agency’s incomplete advice concerning reimbursement.

B-233841, January 26, 1990***
Civilian Personnel
Travel
W Lodging
U H Reimbursement
n n W Government quarters
W n 1 U Availability
Defense Department civilian employee on temporary duty who left government quarters which
she considered inadequate and moved into commercial lodgings may not be reimbursed her com-
mercial lodging costs where installation officials determined that the government quarters were
adequate and therefore declined to issue a statement of nonavailability pursuant to 2 JTR para.
C1055. GAO will not substitute its judgment for that of officials who are responsible for determin-
ing adequacy of government quarters absent clear evidence that their determination was arbitrary
or unreasonable.

B-236110. Januarv 26. 1990
Civilian Personnel
Travel
n Travel regulations
l I Applicability
Civilian Personnel
Travel
H Travel expenses
n n Reimbursement
H m n Official business
H D W H Determination
The Drug Enforcement Administration may not reimburse its employees for the costs of attending
the funeral of a fellow employee killed in the line of duty. In the absence of a statute expressly
authorizing payment, a federal agency may not pay for the travel costs of employees attending the
funeral of a fellow employee since such travel is not official travel within the meaning of the
travel laws and regulations.


Page 7                                                                   Digests-January      1990
B-233454, January 31,199O
Civilian Personnel
Relocation
n Residence transaction expenses
W n Finance charges
In the absence of sufficient evidence showing that a relocation expense, characterized by the lend-
ing institution on the Settlement Certificate as a “NonRefundable Commitment Fee,” is a loan
origination fee, the 1 percent fee must be viewed as a finance charge, which is not reimbursable.




Page 8                                                                  Digests--January     1990
Military                    Personnel

B-232354, January 16,1990***
Military Personnel
Relocation
B Relocation travel
m I Reimbursement
n n n Circuitous routes
Notwithstanding orders directing a member to report to a specific port of embarkation incident to
a transfer overseas, the member’s entitlement to travel allowances is based on travel from the
appropriate port of embarkation serving his temporary duty station when the orders do not direct
travel to some other point.

Military     Personnel
Travel expenses
n Debt collection
A member’s claim for reimbursement of a collection made against him for the cost of traveling on
a government aircraft pursuant to personal business is denied when the member alleges that he
was eligible for space available travel but does not offer documentary evidence demonstrating that
he would have been permitted to board the flight taken as a space available passenger.

B-233404.2, January 26,1990***
Military Personnel
Pay
n   Survivor benefits
H   n Annuity payments
n   n I Offset
n   n 1 H Social security
When a widow’s Survivor Benefit Plan annuity is reduced because she receives social security ben-
efits based on her husband’s lifetime earnings, the reduction cannot exceed the amount she actual-
ly receives from Social Security.

B-236270, January 26,199O
Military Personnel
Pay
n   Overpayments
n   H Error detection
n   I H Debt collection
n   l H n Waiver
A discharged service member’s request for waiver of his debt arising because of failure to liquidate
advance payments made to him may not be considered for waiver under 10 U.S.C. 0 2’7’74since
only erroneous payments may be considered under that statute and these payments were valid
when made. Resuming regular payments prior to liquidation of the advance does not change the
regular payments or the advance into erroneous payments.

Page 9                                                                    Digests-January      1990
Miscellaneous Topics

B-237919.3, January 12, 1990
Miscellaneous Tonics
Federal Administrative/Legislative     Matters
H Congress
H W Library services
HWmFees
Under 2 USC. 0 150, the Library of Congress is authorized to charge subscribers of MARC tapes
and record8 a fee equal to its cost plus ten percent. The Library is not presently authorized to
charge a fee in an amount greater than its cost plus ten percent or to vary its fees among sub
scribers. The Library is authorized to set fees to reflect its direct and indirect costs.




Page 10                                                               Digests-January     1990
Procurement

B-236777.2, January 2,199O                                                           90-l CPD 2
Procurement
Bid Protests
I Antitrust matters
n W GAO review
General Accounting Office (GAO) will not consider arguments that awardee should be prosecuted
for alleged criminal conduct-such as knowingly making false representations in its bid or engag-
ing in collusive bidding-since such matters are beyond GAO’s bid protest function and should be
referred to the Department of Justice.

Procurement
Bid Protests
H Award pending appeals
H n Propriety
General Accounting Office (GAO) will not review agency’s determination that urgent and compel-
ling circumstances significantly affecting interests of the United States will not permit waiting for
a GAO decision.

Procurement
Bid Protests
W GAO procedures
n n Protest timeliness
H R W lo-day rule
W n H n Adverse agency actions
Protest of agency’s failure tu set aside solicitation for small business is dismissed as untimely
where not filed within 10 days after agency took the adverse action of opening bids in the face of
an agency-level protest.




Page I1                                                                    Digests-January      1990
Procurement
Competitive Negotiation
W Requests for proposals
H W Terms
W W W Shipment schedules
Procurement
Contractor Qualification
n Responsibility
n W Contracting officer findings
W W H Affirmative determination
W W W W GAO review
Allegation that awardee cannot perform in accordance with a solicitation’s delivery schedule con-
cerns the contracting agency’s affirmative responsibility determination which General Accounting
Office will review only where the protester makes a showing that contracting officials acted fraud-
ulently or in bad faith or misapplied definitive responsibility criteria.

Procurement
Sealed Bidding
n Bids
W n Responsiveness
W n W Determination      criteria
Bidder’s failure to complete the solicitation’s contingent fee representation does not affect the re-
sponsiveness of its bid, since completion of the clause is not necessary to determine whether the
bid meets the material requirements of the solicitation.

B-236850, January 2,199O                                                             90-l CPD 3
Procurement
Sealed Bidding
H Bids
n W Responsiveness
W I I Certification
n W H H Omission
Protest that bid must be rejected as nonresponsive where a bidder acknowledges an amendment
containing a Procurement Integrity Certificate clause, but fails to complete and sign the certificate
itself, is denied where bids were opened prior to December 1, 1989, but award was not made prior
to that date; the requirement for the certificate, which implements section 27(dXl) of the Office of
Federal Procurement Policy Act Amendments of 1988, has been eliminated in such cases by sec-
tion 507 of the Ethics Reform Act of 1989.

Procurement
Sealed Bidding
W Bids
n n Responsiveness
m I I Determination      criteria
Protest that shipping information contained in bid indicates that dimensions of bidder’s truck
exceed the dimensions specified in the invitation for bids, thus rendering the bid nonresponsive, is
denied; dimensions provided by bidder under shipping information were reasonably interpreted by
contracting agency as not referring to size of truck itself, and other circumstances pertaining to
the bid indicated that bidder did not intend to qualify its bid.

Page 12                                                                   Digests-January      1990
B-236984, January 2,199O                                                             90-l CPD 4
Procurement
Bid Protests
n Interested parties
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 bidder-to assert righti and present the net-
essary evidence to resolve mistake questions.

Procurement
Contractor Qualification
n Responsibility
n H Contracting officer findings
m H n Affirmative determination
n H I n GAO review
Procurement
Contractor Qualification
W Responsibility/responsiveness       distinctions
n H Sureties
l H m Financial capacity
Protest that agency should not have accepted protester’s bid because it in too low, is dismissed
since there is no legal basis on which to object to the submission or acceptance of a below cost bid.
Protester’s suggestion that awardee will not be able to perform at the price it bid concerns the
contracting officer’s affirmative determination of responsibility, a matter which our Office doa
not generally review.

Procurement
Contractor Qualification
n Responsibility
W U Contracting officer findings
D H n Bad faith
H HI l Allegation substantiation
Protester’s contention that the contracting officer’s determination of responsibility in the face of
awardee’s bankruptcy proceedings amounted ta bad faith is denied where actions by bankruptcy
court secured payment to subcontractors and suppliers for this contract and awardee recently sat-
isfactorily performed other similar contracts for the agency.

Procurement
Contractor Qualification
n Responsibility/responsiveness       distinctions
H H Sureties
B H n Financial capacity
Protest that alleged defect in certificate of sufficiency submitted with bid bond made low bid non-
responsive is denied since certificate serves only to assist the contracting officer in determining
the surety’s responsibility.



Page 13                                                                    Digests-January      1990
B-238068, et al., January 2, 1990                                                  90-l CPD 1
Procurement
Bid Protests
n GAO procedures
H n Interested parties
W W m Direct interest standards
Protester is not an interested party to maintain protest since it would not be eligible to receive
awards due to initiation of debarment proceedings.

B-235849.2, January 3,199O                                                         90-l CPD 7
Procurement
Bid Protests
n GAO procedures
H W Interested parties
m W n Direct interest standards
Protest allegation challenging award by firm properly found technically unacceptable is dismissed
because protester is not an interested party since it would not be in line for award if allegation
were resolved in its favor.

B-236597.2, January 3, 1990                                                        90-l CPD 8
Procurement
Bid Protests
n GAO procedures
R n Interested parties
H W n Direct interest standards
Protest allegation challenging award by firm properly found technically unacceptable is dismissed
because protester is not an interested party since it would not be in line for award if allegation
were resolved in its favor.

B-236841.2, January 3, 1990                                                       90-l CPD 9
Procurement
Bid Protests
n GAO procedures
W n GAO decisions
W E n Reconsideration
Request for reconsideration of prior decision dismissing protest as untimely is denied where the
information provided by the protester does not show that the prior decision contains either errors
of fact or of law.

Procurement
Bid Protests
H GAO procedures
n W Protest timeliness
n I W Good cause exemptions
H W H n Applicability
An untimely protest will not be considered under the good cause exception to the bid protest time-
liness rules where the protester had suffkient time, after learning that the agency did not agree

Page 14                                                                 Digests--January     1990
that the solicitation contained improprieties, to file its protest before the closing date for receipt of
proposals.

Procurement
Bid Protests
W GAO procedures
I H Protest timeliness
n n I Significant issue exemptions
W H H n Applicability
Invoking the significant issue exception to General Accounting Office timeliness rules is not war-
ranted where the issue of alleged solicitation improprieties is not of widespread interest to the
procurement community.

B-235977.2, B-235977.3, January 4,199O                                                90-l CPD 10
Procurement
Bid Protests
n GAO procedures
I W Protest timeliness
n H m Apparent solicitation       improprieties
Where solicitation explains how agency will apply evaluation preference for small disadvantaged
businesses (SDBs) and agency applied preference as set out in solicitation, protest filed after award
that evaluation preference is improper is untimely since it is based on the evaluation scheme as
set out in solicitation and therefore should have been filed before closing date for receipt of propos-
als.

Procurement
Contractor Qualification
n Responsibility criteria
n U Performance capabilities
Requirement that offerors under solicitation for bulk fuels designate as a source of supply a refin-
ery operating at the time the offeror submits its best and final offer (BAFO) is met where agency
observed refinery producing petroleum products in a test run 1 day after BAFO was submitted.

Procurement
Contractor Qualification
n Responsibility criteria
n n Performance capabilities
Where offeror does not meet specific letter of solicitation responsibility requirement but has exhib-
ited a level of achievement which in the agency’s reasonable view is equivalent to that required,
offeror may be considered to have satisfied requirement.




Page 15                                                                      Digests-January       1990
B-236061.2, January 4,199O                                                           90-l CPD 11
Procurement
specifications
W Minimum needs standards
W H Competitive restrictions
W W n Performance specifications
H W W W Geographic restrictions
Protest that solicitation did not require establishment of local travel agency offices but rather one
office for numerous areas is denied where solicitation contained list of cities requiring local offices
and contemplated separate awards for 13 areas based on separate proposals for each area.

B-236702, January 4, 1990                                                            90-l CPD 12
Procurement
Competitive Negotiation
W Offers
W n Competitive ranges
I n n Exclusion
W n n I Administrative discretion
Proposal, which, although labeled acceptable, was rated significantly inferior to those included in
the competitive range, was properly found outside of the competitive range, where, after reason-
ably evaluating the proposal, the contracting agency determined that the proposal had no reasona-
ble chance of being selected for award because the relative quality of the proposal, as compared to
the other offerors, would require significant revisions and specific agency direction in order for it
to be made competitive for award.

B-236799, et al., January 4,199O                                                     90-l CPD 13
Procurement
Contractor Qualification
n Responsibility criteria
H W Organizational experience
Agency’s determination that awardee met requirement that manufacturer possess 3 years experi-
ence with roofing system specified in solicitation is unobjectionable where record indicates manu-
facturer had at least 3 years experience with the same basic type of roofing system, if not neces-
sarily with all the same materials to be used on current project.

Procurement
Specifications
m Minimum needs standards
n W Determination
n I H Administrative discretion
Where protester argues that awardee’s proposed roofing system does not meet specification re-
quirement for 100 percent polyester ply sheets, but protester proposed using ply sheets of the same
composition as offered by awardee and agency has determined that both roofing systems will satis-
fy its minimum needs, contracting offkials have treated both offerors equally and there is no basis
to sustain protest against award.



Page 16                                                                    Digests-January       1990
B-236814, January 4,199O                                                            90-l CPD 14
Procurement
Bid Protests
U GAO procedures
n n Interested parties
n l n Direct interest standards
Protester has no standing to claim an error in a competitor’s offer; rather, it is the responsibility
of the contracting parties-the government and the offeror in line for award-to assert rights and
present the necessary evidence to resolve mistake questions.

Procurement
Competitive Negotiation
l Requests for proposals
n I Terms
H n I Compliance
Procurement
Competitive Management
I Contract terms
H I Compliance
n n I GAO review
Whether an offeror will actually deliver a product in compliance with specifications is a matter of
contract administration, which is the responsibility of the contracting agency and not within the
purview of the General Accounting Of&e’s bid protest function.

Procurement
Competitive Negotiation
U Requests for proposals
n I Terms
n H n Shipment schedules
Procurement
Contractor Qualification
W Responsibility
I W Contracting officer findings
n I n Affirmative determination
n n W H GAO review
Protest that awardee lacks the capacity to meet the required delivery schedule challenges the re-
sponsibility of the awardee; our Offrce will not review an agency’s affirmative determination of
responsibility absent a showing of possible fraud or bad faith on the part of the contracting offi-
cials or that definitive responsibility criteria have not been met,

B-237122, January 4,1990***                                                         90-l CPD 15
Procurement
Bid Protests
n Moot allegation
W H GAO review
Protester has no basis to object to the agency decision to hold discussions and request best and
final offers where firm is not low if discussions were not held, and discussions effectively provide a
new opportunity for firm to compete for award.

Page 17                                                                    Digests-January       1990
Procurement
Competitive Negotiation
n Discussion
n W Offers
H W W Clarification
n n H W Propriety
Protester has no basis to object to the agency decision to hoid discussions and request best and
final offers where firm is not low if discussions were not held, and discussions effectively provide a
new opportunity for firm to compete for award.

B-237161, January 4, 1990                                                           90-l CPD 16
Procurement
Sealed Bidding
W Low bids
WI Error correction
l H W Price adjustments
I I H n Propriety
Low bid was properly corrected to include amount omitted due to an extension error where clear
and convincing evidence established both the existence of the mistake and the amount the bidder
intended to include in its bid calculations and the bid will remain low by approximately eight per-
cent.

B-237429, January 4,199O                                                            90-l CPD 17
Procurement
Sealed Bidding
n Bids
n n Responsiveness
n n n Certification
n n n H Omission
Contracting agency’s omission of mandatory drug-free workplace clauses from solicitation and fail-
ure to obtain low bidder’s agreement to clauses before award does not require termination of
awardee’s contract where no bidder was prejudiced by the omission, the actual needs of the gov-
ernment were met by the award and termination would serve no useful purpose.

B-227179.2. January 5.1990
Procurement
Payment/Discharge
H Shipment costs
H W Additional costs
W W W Evidence sufficiency
Carrier’s claims for additional transportation charges, based on a terminal service charge con-
tained in a participating tariff bureau’s government rate tender, are valid even though the bureau
tender is not specifically listed as a governing publication in the carrier’s applicable individual
rate tender. So long as the applicable individual tender contains no provision contrary to the
intent to include such a charge, and a specifically listed governing publication (e.g., a bureau
tender) in turn is specifically governed by another publication (e.g., another bureau tender) con-
taining the charge, a terminal service charge contained in the indirectly referenced governing
publication is incorporated by reference into the tender.

Page 18                                                                    Digests-January       1990
Procurement
Payment/Discharge
n Shipment costs
W H Additional costs
H n W Payment time periods
n n n n Statutes of limitation
Although 31 IJ.S.C!. 5 3726(a) generally requires that claims for transportation charges be received
at GSA within 3 years, this Office will review a claim filed directly with this Office if it is filed
prior to the expiration of the statute of limitations.

Procurement
Payment/Discharge
n Shipments
I n Carrier liability
n n n Amount determination
H n n n GAO review
A carrier’s request for review of a General Services Administration (GSA) transportation settle-
ment under 31 U.S.C. 4 3726 must be received in this Office not later than 6 months (excluding
time of war) after GSA takes action or within the period specified in 31 U.S.C. 5 3726(a), whichever
is later. Although the carrier submitted copies of letters that it asserts it sent to this Office re-
questing review, and which are dated within the period, there is no record in this Office that the
letters were received, The copies alone, without other substantiating evidence, are not enough to
establish that the claims for transportation charges were received within the statute of limita-
tions, and therefore, such claims are barred.

B-235205.2, January 5,199O                                                         90-l CPD 18
Procurement
Bid Protests
W GAO decisions
W W Recommendations
n n n Modification
Procurement
Bid Protests
H GAO decisions
n n Reconsideration
Prior recommendation to terminate contract is modified where agency advises contract is substan-
tially complete. Instead, protester is entitled to recover reasonable bid preparation costs and costs
of filing and pursuing its protest.

B-235635.2, January 5,199O                                                         90-l CPD 19
Procurement
Bid Protests
n GAO decisions
n W Recommendations
l n n Modification
Prior recommendation to terminate contract is modified where agency advises contract is substan-
tially complete. Instead, protester is entitled to recover reasonable bid preparation costs and costs
of filing and pursuing its protest.

Page 19                                                                    Digests-January      1990
B-236755, January 5,199O                                                         90-l CPD 20
Procurement
Sealed Bidding
n Bids
l I Responsiveness
I n n Pre-award samples
n W n n Acceptability
Where contracting officer could not reasonably conclude from previous performance history that
the incumbent contractor’s product complied with current requirements, waiver of bid sample re-
quirement under the solicitation’s bid sample provision and subsequent award to incumbent was
improper.

B-236839, January 5,199O                                                         90-l CPD 21
Procurement
Competitive Negotiation
n Contract awards
M U Administrative discretion
W W n Cost/technical tradeoffs
H n H n Technical superiority
Agency reasonably determined to award contract to higher-priced, higher technically rated propos-
al where evaluation criteria provided that technical quality was more important than price.

Procurement
Competitive Negotiation
n Discussion reopening
H n Propriety
An agency properly may consider the impact of a best and final offer (BAFO) on an otherwise
unchanged technical proposal and the offeror assumes the risk that changes in ita BAFO might
raise questions which result in a lower technical score.

Procurement
Competitive Negotiation
n Offers
n n Competitive ranges
n W H Inclusion
n I n W Effects
Inclusion of a proposal in the competitive range does not necessarily mean that it is technically
equal to other proposals in the competitive range so as to make price determinative of award.

B-236865, January 5, 1990                                                        90-l CPD 22
Procurement
Competitive Negotiation
n Bequests for proposals
H H Oral amendments
Alleged oral advice by agency contract negotiator that closing date for receipt of proposals would
be extended by amendment does not constitute an oral amendment and is not binding on the gov-
ernment.

Page 20                                                                 Digests-January      1990
B-236973, January 5, 1990                                                         90-l CPD 23
Procurement
Competitive Negotiation
H Best/final offers
W H Rejection
n W I Ambiguous offers
Agency properly rejected protester’s best and final offer which was ambiguous with regard to pro-
tester’s intention to subcontract guuard services where solicitation prohibited subcontracting those
services.

B-237005, January 5,199O                                                          90-l CPD 24
Procurement
Competitive Negotiation
n Unbalanced offers
W W Materiality
I m n Determination
n W m H Criteria
Procurement
Contract Types
I Fixed-price contracts
W W Price determination
n W n Indefinite quantities
Where solicitation placed heavy emphasis on initial order quantity in price evaluation, and where
record contains no evidence that acceptance of low evaluated offer would result in other than the
lowest ultimate cost to the government, protest against allegedly unbalanced offer is denied.

B-237139, January 5, 1990***                                                      90-l CPD 25
Procurement
Sealed Bidding
H All-or-none bids
W W Responsiveness
Low bid is properly determined to be responsive as an “all or none” bid where bidder provides one
lump-sum price for work required rather than individual prices for six line items (base item plus
five additives) in the solicitation’s schedule.

B-237289, January 5.1990                                                          90-l CPD 26
Procurement
Sealed Bidding
n Bids
n n Responsiveness
W W H Certification
W n H n Omission
Protest against award of a contract to a bidder that acknowledges an amendment containing a
Procurement Integrity Certificate clause but fails to sign the Certificate itself with his bid is
denied since in light of the suspension of the requirement for the Certificate, the failure to sign
the Certificate prior to bid opening is immaterial and provides no basis to disturb the award.

Page 21                                                                   Digests-January      1990
B-237685, January 5, 1990***                                                       90-l CPD 27
Procurement
Competitive Negotiation
W Offers
n n Risks
W H W Pricing
Procurement
Specifications
n Minimum needs standards
n W Risk allocation
W W n Performance specifications
Protest allegation that solicitation provision, which requires contractor to lodge its employees in a
privately operated facility, places undue cost risk on offerors is denied where the solicitation pro-
vides that the contractor’s costs of lodging will be reimbursed by the government and any other
costs to the contractor are easily calculable.

Procurement
Competitive Negotiation
H Competitive advantage
W W Non-prejudicial allegation
Protest that operator of lodging facility has a competitive advantage is denied where protester
does not show what. advantage the operator is alleged to have or that the alleged advantage was
caused by any unfair action by the government.

B-237696, January 5, 1990                                                          90-l CPD 28
Procurement
Socio-Economic Policies
n Small businesses
W W Responsibility
n I n Negative determination
n n n n Effects
Contracting agency reasonably found bidder nonresponsible where bidder failed to provide suffi-
cient information to permit a finding that the individual sureties on its bid bond were acceptable.

Procurement
Bid Protests
W GAO procedures
n W Protest timeliness
n n n Apparent solicitation     improprieties
A contracting officer’s determination that a small business firm is nonresponsible need not be re-
ferred to the Small Business Administration when the determination is based upon the unaccepta-
bility of the bidder’s bond sureties.




Page 22                                                                   Digests-January      1990
                                                                                           b
B-237876, January 5,199O                                                          90-l CPD 29
Procurement
Bid Protests
n GAO procedures
n W Protest timeliness
H n D Apparent solicitation     improprieties
Protest against a restrictive geographic specification in a solicitation is untimely filed after the
closing date for responses to Commerce Business Daily (CBD) announcement where the restriction
was stated in the CBD announcement.

B-235526.2, January 8, 1990                                                        90-l CPD 30
Procurement
Bid Protests
W GAO procedures
W n GAO decisions
W W n Reconsideration
W H n H Additional information
Since, based on further review of the record, including new information submitted by agency, it
appears that initial protest with respect to cost evaluation issue may have been incorrectly dis-
missed as untimely, General Accounting Office reinstates that issue and considers it on the merits.

Procurement
Competitive Negotiation
n Contract awards
H n Administrative discretion
W W W Cost/technical tradeoffs
H n W W Technical superiority
Agency decision to select for award higher cost, higher rated technical proposal is unobjectionable
where under solicitation evaluation scheme technical concerns were more important than cost and
agency determined that the cost to the agency to bring the lower cost offeror up to the technical
level of the eventual awardee outweighed the cost advantage of the offeror with the lower techni-
cal rating.

B-236189.2, January 8,199O                                                         90-l CPD 31
Procurement
Specifications
M Brand name/equal specifications
n W Equivalent products
H W n Salient characteristics
W W n W Descriptive literature
In “brand name or equal” procurement, agency properly determined that awardee’s offered
“equal” item w3s acceptable based on descriptive literature in bid, even though taken largely from
brand name manufacturer’s commercial literature, since it indicated awardee’s intent to furnish
items meeting the specified salient characteristics in the same manner as the brand name item.



Page 23                                                                    Digests-January      1990
B-236311, B-236313, January 8,199O
Procurement
Payment/Discharge
I Federal procurement regulations/laws
W W Revision
W n H Cost accounting
General Accounting Office has no objection to Federal Acquisition Regulation (FAR) Case No.
89-56, which would revise FAR 9 47.303-6 and the clause at FAR § 52.247-34 to except heavy or
bulky freight from the normal requirement that supplies delivered by truck be made available at
the truck’s tailgate.

Procurement
Contract Types
n Supply contracts
n W Shipment terms
General Accounting Office has no objection to Federal Acquisition Regulation (FAR) Case No.
89-54 which would revise: 1) FAR 5 43.205(fl to allow inclusion of the clause at FAR 52.243-6 to
provide a basis for requiring contractors to account separately for changed work if the estimated
cost of a change, or a series of related changes, exceeds $100,000, 2) FAR 0 15.804-6 to require
identification of all costs incurred before the submission of a contract pricing proposal, and 3) FAR
$5 15.805-5 and 43.204(b) to provide for field pricing reviews in connection with equitable adjust-
ments.

B-236833, January 8,199O                                                           90-l CPD 32
Procurement
Small Purchase Method
n Quotations
W H Evaluation
n I I Technical acceptability
A procuring agency’s technical evaluation of a proposed alternate product resulting in its rejection
as technically unacceptable will not be disturbed absent a clear showing that the agency has acted
unreasonably.

B-237193.3, January 8,199O                                                         90-l CPD 33
Procurement
Bid Protests
n GAO procedures
n I Protest timeliness
H n n IO-day rule
W W H n Reconsideration motions
A request for reconsideration must be filed at the General Accounting Office (GAO) not later than
10 days after the basis for reconsideration is known or should have been known and the filing of a
protest in the interim with the General Services Administration Board of Contract Appeals does
not toll the time for filing with the GAO.




Page 24                                                                   Digests-January      1990
B-237385, January 8,199O                                                          90-l CPD 34
Procurement
Sealed Bidding
H Invitations for bids
n n Evaluation criteria
n W H Prices
n n n n Overhead costs
Protest that estimated cost of transporting contract items from bidder’s facility to selected agency
locations should not be added to bid price for purpose of evaluating f.o.b. origin bids is denied to
extent that protester argues such evaluation is contrary to solicitation, because solicitation pro-
vides that bid evaluation is to include estimated transportation costs.

Procurement
Sealed Bidding
l Invitations for bids
n n First-article testing
n W n Waiver
I m H H Administrative determination
Protest that bidder was not informed that it could request a waiver of the solicitation’s require-
ment of first article testing is denied where solicitation clearly provided that requirement would
be waived upon approval by agency and set forth procedure for applying for waiver.

B-237888.2, January 8, 1990                                                        90-l CPD 35
Procurement
Bid Protests
I GAO procedures
n n Protest timeliness
n n n IO-day rule
n n n H Reconsideration motions
Request for reconsideration of prior dismissal of protest as untimely filed is denied where protest-
er argues only that it lacked knowledge of General Accounting Office Bid Protest Regulations,
since protesters are on constructive notice of the regulations as they are published in the Federal
Register and Code of Federal Regulations.

B-234142.3, January 9, 1990                                                        90-l CPD 36
Procurement
Bid Protests
n GAO procedures
H n GAO decisions
n I n Reconsideration
Second request for reconsideration is denied where it establishes no legal or factual basis for re-
versing or modifying earlier decisions.

                                                                           .



Page 25                                                                   Digests-January      1990
B-236784, January 9,199O                                                          90-l CPD 37
Procurement
Sealed Bidding
n Bids
H H Responsiveness
n n n Price omission
n n n W Unit prices
Protest that bid was improperly rejected as nonresponsive for failure to price a subitem is denied
where it has not been established that another, priced subitem was suffmiently identical to the
omitted item to establish a pattern of bidding from which the omitted price can be inferred.

B-236892, January 9,199O                                                          90-l CPD 38
Procurement
Competitive Negotiation
W All-or-none offers
W W Acceptance
Solicitation that grouped eight sonar transducers in one package for purposes of an all-or-none
procurement, instead of further subdividing the group into two packages (“build to specification”
and “build to print”), as suggested by protester, was not unduly restrictive of competition; the
agency had a reasonable basis for concluding that inclusion of eight transducers in one group,
based on similarity of function and commonality of materials and production processes, would best
meet its minimum needs by promoting efficiency and economy, and that the protester’s approach
may have tended to reduce competition overall.

Procurement
Competitive Negotiation
n Offers
W n Submission time periods
a n I Adequacy
Protest that agency allowed insufficient time for preparation of proposals is denied where period
allowed exceeded the statutorily mandated minimum time and did not preclude full and open com-
petition.

B-236236.2. January 10.1990                                                       90-l CPD 39
Procurement
Bid Protests
W GAO procedures
W W Interested parties
Protester is not an interested party to maintain protest against the contracting agency’s cancella-
tion of a solicitation where protester’s bid was nonresponsive to the solicitation.




Page 26                                                                  Digests-January      1990
B-236640.2, January 10, 1990                                                         90-l CPD 40
Procurement
Bid Protests
n Allegation substantiation
H H Lacking
H n n GAO review
Procurement
Bid Protests
W Non-prejudicial    allegation
H W GAO review
Protest is denied where record contains no evidence that release of protester’s not-to-exceed price,
submitted in connection with a previously canceled sole-source solicitation, prejudiced the protest-
er.

Procurement
Competitive Negotiation
W Requests for proposals
W n Oral solicitation
WBWUse
Protest against use of oral solicitation is denied where protester fails to show that contracting offi-
cer unreasonably determined that use of such procedures was justified on basis of urgency, in view
of information indicating that critical supplier would be unavailable if normal procurement proce-
dures were followed.

B-236790, January 10,1990***                                                         90-l CPD 41
Procurement
Sealed Bidding
n Unbalanced bids
W n Materiality
W B m Responsiveness
Low bid for operation and maintenance contract is materially unbalanced where price for initial
N-day mobilization period amounts to approximately 63 percent of overall price for the firm,
l-year performance period in the contract as awarded, and 22 percent of the potential S-year con-
tract period.

B-236848, January lo,1990                                                            90-l CPD 42
Procurement
Bid Protests
n Allegation substantiation
n n Lacking
l n W GAO review
Protest that contracting agency improperly considered cost savings resulting from recent award of
two related contracts to one of the offerors ia denied where there is no evidence that these awards
were considered during the evaluation.


Page 27                                                                     Digests-January      1990
Procurement
Competitive Negotiation
W Contract awards
W H Administrative discretion
n n I Cost/technical tradeoffs
n n n W Technical superiority
In a negotiated procurement the contracting agency has broad discretion in making cost/technical
tradeoffs. Award to higher rated offeror with higher proposed costs is not objectionable where
agency reasonably concluded that cost premium involved was justified considering the technical
superiority of the selected offeror’s proposal.

Procurement
Competitive Negotiation
W Offers
W W Evaluation
R n W Downgrading
n n n n Propriety
Protest that contracting agency excessively downgraded proposal by overemphasizing slight weak-
ness is denied where record shows that agency considered the weakness significant and the evalua-
tion of the proposal was consistent with the criteria set forth in the solicitation.

B-237184, et al., January lo,1990                                                 90-l CPD 43
Procurement
Socio-Economic Policies
W Small businesses
n n Competency certification
n n I Adequacy
Certificate of competency (CCC) proceedings were properly conducted where protester was given
sufficient notice that its contract performance history was under review and was given an ade-
quate opportunity to, and did in fact, present information on its own behalf with regard to that
performance history to the Small Business Administration, which then considered the information
in its CCC deliberations.

Procurement
Socio-Economic Policies
n Small businesses
n n Competency certification
n W W Adequacy
Where the record shows that the Small Business Administration (SBA) considered all information
provided to it by the protester during the certificate of competency proceeding, protest that vital
information was not considered by SBA is denied.

Procurement
Socio-Economic Policies
n Small businesses
W l Competency certification
W I W Information disclosure
Agency was not obligated to furnish the protester with a copy of a pre-award survey report for use
during a certificate of competency proceeding.

Page 28                                                                  Digests-January      1990
Procurement
Socio-Economic Policies
W Small businesses
n W Responsibility
n H n Competency certification
HI I I Negative determination
The Small Business Administration has the statutory authority to review a contracting officer’s
findings of nonresponsibility and to conclusively determine a small business concern’s responsibil-
ity through the certificate of competency process.

B-236893, January 11,199O                                                         90-l CPD 44
Procurement
Contractor Qualification
W De facto debarment
n n Non-responsible contractors
Where procuring agency makes an award to the next low bidder after determining that the pr*
tester was nonresponsible because of an unsatisfactory record of integrity, protester’s due process
rights were not violated because the agency determination applied to one procurement only, which
did not constitute a de facto debarment or suspension where due process considerations are appli-
cable.

Procurement
Contractor Qualification
W Responsibility
II m Contracting officer findings
W H W Negative determination
n n H n Criteria
Contracting agency reasonably determined that bidder was nonresponsible based on information
in a criminal investigation report which called into queetion the bidder’s integrity baaed on con-
duct under recent government procurements.

B-236975, January 11, 1990                                                         90-I CPD 45
Procurement
Competitive Negotiation
U Requests for proposals
n W Cancellation
I I I Justification
H W H W Minimum needs standards
Protest that agency-after terminating for convenience a contract initially awarded under a re
quest for quotations (RFQ) to another firm baaed on determination that awardee did not satisfy all
RFQ requirements-should       have awarded contract to only other quoter, protester, is denied where
agency reasonably found all quotes, including protester’s, technically unacceptable and concluded
that RFQ failed to reflect its minimum needs.




Page 29                                                                   Digests-January      1990
B-237032, B-237032.2, January 11, 1990                                          90-l CPD 46
Procurement
Sealed Bidding
n Bids
I I Price negotiation
n n W Allegation substantiation
n n n n Evidence sufficiency
Allegation that agency manipulated amount of funding available to displace protester as HOW
bidder is denied where record shows that contracting officer recorded amount of available funds
prior to bid opening and funding amount has not changed.

Procurement
Sealed Bidding
H Contract awards
I I Propriety
n n n Funding restrictions
Where invitation for bids contains an item representing the base bid and several deductive items
and at the time of bid opening no funds are available for award, under the standard “Additive or
Deductive Items” clause, low bidder is the firm which bid the lowest price for the least amount of
work on the base bid less all deductive items.

B-237070, January 11,199O                                                        90-l CPD 47
Procurement
Competitive Negotiation
H Offers
W W Evaluation
n n n Technical acceptability
Agency’s decision to reject protester’s proposal was reasonable where proposal contained signifi-
cant technical and informational deficiencies such that it would require major revisions before it
could be made acceptable and proposal otherwise lacked a reasonable chance of award in view of
technical superiority and lower price of competing offeror’s proposal.

B-236871, Januam 12, 1990***                                                     90-l CPD 48
Procurement
Competitive Negotiation
W Requests for proposals
W n Amendments
n n n Propriety
Protest challenging agency’s decision after receipt of initial proposals to issue amendment to re-
quest for proposals (RFP) increasing the number of items to be procured, instead of issuing sepa-
rate solicitation for the additional number required, is denied since a significant change in the
government’s requirements is a proper basis for amending an RFP after receipt of proposals.




Page 30                                                                 Digests-January      1990
B-236894, January 12,199O                                                          90-l CPD 49
Procurement
Bid Protests
n Moot allegation
W H GAO review
Allegation that agency should not have rejected protester’s offer as unacceptable is academic, and
will not be considered, where solicitation provided for award to low acceptable offeror and award-
ee, not protester was low; even if protester prevailed in protest, it would not be in line for award.

B-236911, January 12,1990***                                                       90-l CPD 50
Procurement
Bid Protests
n GAO procedures
n II Interested parties
n W n Direct interest standards
Protester is an interested party under Bid Protest Regulations to protest that agency improperly
evaluated its proposal and that request for proposals (RFP) was improperly canceled on the basis
that no acceptable proposals were received, even though the protester’s proposal was among the
lowest ranked and highest priced.

Procurement
Competitive Negotiation
n Offers
H H Evaluation
W H II Personnel experience
Agency reasonably found protester’s proposal was unacceptable because it failed to offer personnel
with direct relevant experience as required by the RFP. The protester’s assertion that the failure
to have the specified experience is not deficient since the personnel it offered have broad experi-
ence in related fields and may utilize this experience for their assignments under the RFP is
merely an attempt by protester to rewrite the solicitation and restate the agency’s needs.

Procurement
Competitive Negotiation
W Offers
l l Evaluation
H H W Personnel experience
Agency reasonably rejected the protester’s proposal as technically unacceptable where the protest-
er’s proposed personnel did not meet the agency’s specific education and experience requirements
and the protester did not indicate that it could or would offer different personnel meeting these
requirements.

Procurement
Competitive Negotiation
W Offers
H m Evaluation
n H n Technical acceptability
Agency reasonably rejected the protester’s proposal as technically unacceptable where the protest-
er’s proposed personnel did not meet the agency’s specific education and experience requirements

Page 31                                                                    Digests-January       1990
and the protester did not indicate that it could or would offer different personnel meeting these
requirements.

B-237009, January K&1990***                                                       90-l CPD 51
Procurement
Competitive Negotiation
n Contract awards
n n Initial-offer awards
n 4 n Propriety
Award to low acceptable offeror on basis of initial proposals was proper even though protester,
after a pricing audit conducted by Defense Contract Audit Agency as part of the evaluation, of-
fered to lower the price in its initial proposal below the price in awardee’s initial proposal; prp
curement did not progress beyond the initial proposal stage so as to require request for best and
final offers (BAFOs), there was no indication that the awardee would reduce its price in a BAFO,
and the potential reduction in protester’s price would not offset awardee’s significant technical
superiority.

B-237259, B-237259.2, January 12,199O                                             90-l CPD 52
Procurement
Competitive Negotiation
n Offers
I l Evaluation
n m m Technical superiority
Procurement
Competitive Negotiation
W Offers
H n Competitive ranges
W n W Exclusion
n W W n Administrative discretion
Protests challenging agency’s evaluation of proposals and exclusion from the competitive range
are denied where review of agency’s technical evaluations of protesters’ proposals indicates that
they were evaluated in accordance with solicitation’s evaluation criteria and that agency reason-
ably concluded that the proposals would require major revisions to become acceptable.

B-237919.3, January 12,199O                                                       90-l CPD 53
Procurement
Bid Protests
W GAO procedures
l I GAO decisions
n H W Reconsideration
Procurement
Contract Management
n Contract administration
W n Contract terms
n l W Compliance
W n H W GAO review
Request for reconsideration of dismissal of protest that awardee does not intend to perform con-
tract in compliance with specifications is denied as protest involves matter of contract administra-

Page 32                                                                  Digests-January       1990
tion and therefore is not for consideration under General Accounting Office Bid Protest Regula-
tions.

B-235239.2, January 16, 1990***                                                  90-I CPD 54
Procurement                                                                                     -
Contract Management
W Contract administration
H n Convenience termination
W n W Competitive system integrity
Contracting agency’s determination not. to terminate contract award based solely on an FBI record
of an interview with a former employee of the agency indicating that the awardee bribed the
former employee to help it obtain the award will not be disturbed where (1) the awardee denies
the alleged wrongdoing, leaving the charges disputed; (21 a criminal investigation of the alleged
wrongdoing is ongoing; and (3) the agency states that if evidence of misconduct by the awardee to
support terminating the contract is uncovered, corrective action will be taken at that time.

B-236673, January 16,199O
Procurement
Payment/Discharge
W Liquidated damages
W n Remission
Request for remission of liquidated damages assessed by Department of the Army is denied in the
absence of a favorable recommendation by the head of the agency.

B-237138, January 16, 1990                                                       90-l CPD 56
Procurement
Competitive Negotiation
W Offers
n W Competitive ranges
I I I Exclusion
n W W H Administrative discretion
Procurement
Contractor Qualification
n Organizational conflicts of interest
n n Allegation substantiation
n W I Evidence sufficiency
Contracting agency reasonably determined that an organizational conflict of interest existed and
properly excluded the protester from competing for a contract to survey general licensees using
equipment containing radioactive material (under a general license granted by the contracting
agency), where the protester provides consulting services to these general licensees and performs
service work for the equipment in question, because it may appear to the general licensees that
the Nuclear Regulatory Commission endorses the protester to perform service work, thus creating
an unfair competitive advantage which is specifically prohibited under applicable agency statutory
and regulatory provisions.




Page 33                                                                 Digests-January      1990
B-237249, January 16,1990***                                                     90-l CPD 57
Procurement
Socio-Economic Policies
n Small business set-asides
n n Contract awards
l I W Price reasonableness
Award to large business which submitted low quote on small business-small purchase set-aside WBS
improper, where the procuring agency did not specifically determine, or have any evidence to indi-
cate, that the second low quote from a small business, which was only 6 percent higher than the
price of the large business awardee, was unreasonable.

B-237820, January 16,199O                                                        90-l CPD 58
Procurement
Contractor Qualification
n Responsibility
n W Contracting officer findings
n 4 l Negative determination
W n W n Pre-award surveys
Procurement
Soeio-Economic Policies
H Small businesses
W n Contract awards
m n U Non-responsible contractors
n W H W Competency certification
Rejection of small business’ low offer and award of a contract to the second-low offeror was im-
proper where the agency found low offeror nonresponsible, but improperly failed to refer nonre-
sponsibility determination to the Small Business Administration for certificate of competency pro
ceedings.

B-236544.2, January 17,199O                                                      90-l CPD 59
Procurement
Competitive Negotiation
W Offers
n n Competitive ranges
n n n Exclusion
n H W n Administrative discretion
Proposal to provide personal services of health professionals was properly excluded from the com-
petitive range where agency found offeror had diffkulty providing similar services in the past and
therefore received a low score under the evaluation factor relating to previous experience, and
where agency concluded that offeror’s proposed compensation for health professionals would be
insufficient to recruit and retain such individuals.




Page 34                                                                  Digests-January     1990
B-236698.2, January 17, 1990                                                     90-l CPD 60
Procurement
Competitive Negotiation
n Requests for proposals
W W Terms
n W W Service contracts
n I1 H Applicability
Procurement
Special Procurement Methods/Categories
W Service contracts
I I Applicability
Agency determination not to include Service Contract Act provisions in a contract for specialized
education program is reasonable where the principal purpose of the contract is to procure profes-
sional services, which are exempt from the statute’s coverage, notwithstanding the incidental use
of service employees under the contract.

B-236960, January 17,199O                                                         90-l CPD 61
Procurement
Competitive Negotiation
n Offers
n H Evaluation
m n W Technical acceptability
Protester’s contention that the agency improperly determined that its proposal was technically un-
acceptable is denied where the allegation primarily is baaed on the protester’s mere disagreement
with the agency concerning the significance of the experience of one employee in his previous ca-
pacity, aa an agency employee. Since the burden is on the offeror to submit an adequately written
proposal, the agency evaluation is reasonable where the record shows that the proposal contained
numerous material deficiencies.

Procurement
Competitive Negotiation
n Offers
n W Evaluation
H H n Technical acceptability
Protester’s argument that as the lowest priced offeror it is entitled to award is denied where pro-
tester’s proposal was properly found to be technically unacceptable.

Procurement
Competitive Negotiation
H Offers
W W EvaIuation errors
n n n Evaluation criteria
n W H I Application
Protest alleging that contracting agency used an undisclosed evaluation criterion ia denied where
the record indicates that proposals were evaluated in accordance with the criteria set forth in the
solicitation.

Page 35                                                                  Digests-January      1990
B-237121, January 17,199O                                                        90-l CPD 62
Procurement
Small Purchase Method
W Contract awards
H n Quantity reduction
I n W Propriety
An award of less than all of the line items is proper where, under a request for quotations, the
agency deleted one item because sufficient funds were not available to award this item.

Procurement
Special Procurement Methods/Categories
n Federal supply schedule
n n Contract awards
n W n Propriety
Award of a contract for equipment under a nonmandatory Federal Supply Schedule is proper
where agency has no “actual knowledge” of a price more advantageous to the government.

B-237150, January 17,199O                                                         90-l CPD 63
Procurement
Special Procurement Methods/Categories
n Federal supply schedule
W W Off-schedule purchases
n W W Justification
m n I II Low prices
Agency determination to seek a waiver from the General Services Administration to purchase out-
side a mandatory Federal Supply Schedule because it believes its needs cannot be met by items
from the schedule is not objectionable where there is no allegation of bad faith or showing that
the agency’s conclusion lacked any reasonable basis.

B-237180, January 17, 1990                                                        90-I CPD 64
Procurement
Bid Protests
W GAO procedures
W n Protest timeliness
n n n lo-day rule
Where a protester later supplements a timely protest with new grounds, the later raised allega-
tions are untimely if filed more than 10 working days after the basis of protest is known or should
have been known since those allegations must independently satisfy the timeliness requirements.

Procurement
Contractor Qualification
n De facto debarment
W W Non-responsible contractors
Protest that nonresponsibility determination was tantamount to a & facto debarment is denied
where protester was awarded another agency contract and will not be precluded from competing
and receiving award of future contracts, assuming it is otherwise qualified.

Page 36                                                                  Digests-January      1990
Procurement                                                                              ---
Contractor Qualification
W Responsibility
W H Contracting officer findings
n W W Negative determination
W n W R Criteria
Protest that contracting officer’s nonresponsibility determination lacked a reasoriable basis is
denied where determination is based upon contracting officer’s reasonable conclus!Jxl that the pro-
tester did not provide the necessary proof that it would be able to comply with the required per-
formance schedule.

B-237986.3, January 17, 1990                                                   l._.-l._“---
Procurement                                                                                    .-
Bid Protests
n GAO procedures
n W Protest timeliness
H W H Apparent solicitation     improprieties
Protest against alleged solicitation improprieties that were apparent prior to the closing date for
the receipt of initial proposals is untimely where not filed before the closing date.

Procurement
Bid Protests
n GAO procedures
I n Protest timeliness
n H W l&day rule
Protest regarding content of discussions is untimely filed under Bid Protest Regulations since it
was not filed within 10 working days of when discussions were conducted or best and final offers
submitted.

Procurement
Bid Protests
W GAO procedures
I n Protest timeliness
n H n lo-day rule
New and independent grounds of protest, concerning the contracting agency’s technical evaluation
of the protester’s proposal, baaed on debriefing are dismissed as untimely where filed more than
10 working days after the debriefing.

B-236765.2, January 18,199O                                                       90-l CPD 65
Procurement
Contract Management
I Contract modification
n H Cardinal change doctrine
n W W Criteria
W H H n Determination
Contract may not be awarded to low bidder under solicitation which did not provide for any asbes-
tos removal with the intent of materially modifying the contract after award to provide for asbes-
tos removal.

Page 37                                                                  Digests-January       1990
Procurement
Sealed Bidding
I Invitations for bids
n H h&bid      opening cancellation
n W n Justification
n H n W Sufficiency
Contracting agency had compelling reason to cancel solicitation for renovation work after bid
opening, where the solicitation did not provide for any asbestos removal and asbestos was discov-
ered, necessitating substantial additional requirements which contracting agency reasonably deter-
mined should be performed BB part of the renovation contract.

B-236931, January 18,199O                                                          90-l CPD 66
Procurement
Competitive Negotiation
n Offers
n W Evaluation
n n 1 Administrative discretion
General Accounting Office has no basis to object to questions raised by agency in regard to protest-
er’s initial proposal where protester, who argues that questions were used to unfairly reject its
proposal, has not shown that the questions were unrelated to solicitation requirements or that the
protester was not given adequate time in which to respond.

B-236943, January l&l990                                                           90-l CPD 67
Procurement
Competitive Negotiation
H Bequests for proposals
l l Evaluation criteria
W W W Sample evaluation
n H W n Testing
An agency properly rejected a protester’s offer for video electronic news-gathering services when
protester failed to timely submit a technical proposal in the form of a sample videotape, as re-
quired by the solicitation.

B-237211.2, January 18, 1990                                                       90-l CPD 68
Procurement
Sealed Bidding
I Invitations for bids
W n Amendments
m II n Acknowledgement
n n W n Responsiveness
Contracting officer properly found responsive bid which failed to acknowledge receipt of a solicita-
tion amendment that forwarded copies of drawings which were referenced in previously-acknowl-
edged amendments.




Page 38                                                                   Digests-January      1990
B-237450, January l&l990                                                           90-l CPD 69
Procurement
Competitive Negotiation
H Offers
W n Evaluation
n n n Information submission
n n W W Contractor duties
Agency properly rejected protester’s proposal as technically unacceptable where the pro@          of-
fered to meet all required specifications but failed to provide suffuzient detail of proposed unit’s
actual specifications and how it would meet the solicitation’s requirements.

Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n H Information submission
n l I n Contractor duties
Even where a request for proposals provides that award will be made on the basis of the lowest-
priced proposal meeting the requirements of the solicitation, an agency properly may evaluate an
offeror’s failure to provide sufficient detail to allow evaluators to determine whether the solicita-
tion’s requirements will be met, where the solicitation’s instructions for preparation of proposals
require such detail for that purpose.

B-237653, January l&1990                                                           90-l CPD 70
Procurement
Sealed Bidding
n Bid guarantees
n n Sureties
n n W Acceptability
n n n n Information      submission
Agency reasonably found bidder nonresponsible where bidder failed to provide sufficient informa-
tion to permit a finding that the individual sureties on its bid bond were acceptable.

Procurement
Socio-Economic Policies
n Small businesses
l W Competency certification
W W n Applicability
A contracting offxer’s determination that a small business firm is nonresponsible need not be re-
ferred to the Small Business Administration when the determination is based upon the unaccepta-
bility of the bidder’s bond sureties.




Page 39                                                                   Digests-January       1990
B-238226, January IS,1990                                                       90-l CPD 71
Procurement
Sealed Bidding
n Bids
I n Responsiveness
W H n Signatures
H m n W Omission
A bidder’s failure to sign a bid renders the bid nonresponsive; the lack of signature cannot be
cured by the bidder’s attendance at bid opening or by the bidder’s arrangements for insurance and
storage space which are not part of the bid.

B-236746.2, January 19,199O                                                     90-l CPD 72
Procurement
Bid Protests
n Non-prejudicial   allegation
n n GAO review
Procurement
Contractor Qualification
n Responsibility
lI Contracting officer findings
n W W Negative determination
n8 W W GAO review
Where protester reasonably was found nonresponsible it was not prejudiced by the method chosen
to evaluate bid prices and the award of a construction contract to the only other viable bidder.

B-236873, January 19, 1990                                                      90-l CPD 73
Procurement
Contractor Qualification
n Responsibility
W W Contracting officer findings
W W n Negative determination
n W n H Pre-award surveys
Protester’s right to procedural due process does not require advance disclosure of pre-award
survey results or an opportunity for contractor to defend position where this information is used
to find the protester not responsible for a single procurement.

Procurement
Socio-Economic Policies
n Small businesses
II n Competency certification
n W W Extension
n n H W Administrative discretion
Contracting agency has sole discretion to extend period within which a small business concern
may apply for certificate of competency.

Page 40                                                                Digests-January      1990
Procurement
Socio-Economic Policies
n Small businesses
W n Responsibility
n H n Competency certification
n H W W Negative determination
General Accounting Office will not reexamine contracting agency’s determination of nonresponsi-
bility where a small business concern has not timely filed a complete application for certificate of
competency with the Small Business Administration.

B-236930, January 19,199O                                                         90-l CPD 74
Procurement
Sealed Bidding
W Bids
n n Options
W n W Evaluation
Where agency initially believed options would be exercised, it properly provided for their evalua-
tion in solicitation, and this determination did not preclude the agency from subsequently deter-
mining that funding problems currently make it uncertain whether funds would be available to
the agency to permit exercise of the options, and that bid that will not become low unless all op
tions are exercised therefore is materially unbalanced.

Procurement
Sealed Bidding
W Unbalanced bids
n I Materiality
n 4 W Responsiveness
The apparent low bid on a contract for a l-year base period and four l-year options was properly
rejected as materially unbalanced where there is a large price differential between the base and
option years, the bid does not become low until the last option year, and the government has indi-
cated it will probably not exercise the options due to funding uncertainly; there thus is reasonable
doubt that acceptance of the bid ultimately will result in the lowest overall cost to the govern-
ment.

B-236932. Januarv 19.1990***                                                      90-l CPD 75
Procurement
Bid Protests
n Allegation
n W Abandonment
Contention that agency should have held discussions with protester before requesting best and
final offers so that protester could revise its proposal to correct any deficiencies is considered
abandoned where agency reported that discussions were not necessary because protester’s initial
proposal was technically acceptable, and protester did not rebut or otherwise comment upon agen-
cy’s assertion.




Page 41                                                                   Digests-January      1990
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n W n lo-day rule
I I l l Effective dates
Protest is considered timely where it was filed in the General Accounting Office (GAO) within 10
working days after agency’s initial adverse action on agency-level protest (issuance of amendment
demonstrating that agency was not going to delete solicitation clause as requested by protester).
Even though agency denied agency-level protest by letter more than 10 working days before pro-
tester filed protest with GAO, where protester denies receipt of agency’s letter and record contains
no evidence to show receipt by protester, we resolve doubt concerning timeliness in favor of pro-
tester.

Procurement
Bid Protests
n GAO procedures
W n Interested parties
W m m Direct interest standards
Offeror whose direct economic interest would be affected by award of a contract under protested
procurement is an interested party for purposes of protesting that preproduction evaluation clause
deviates from Changes clause required by Federal Acquisition Regulation and should be deleted
from solicitation.

Procurement
Competitive Negotiation
n Offers
n W Designs
n H n Evaluation
n W n H Technical acceptability
Preproduction       evaluation  clause    requiring    contractor    to    evaluate    production
drawings/specifications and to suggest and accept engineering changes for certain purposes before
beginning production with no increase in price or delay in delivery is to be read in conjunction
with Changes clause which was incorporated into the solicitation as required by the Federal Ac-
quisition Regulation (FAR), and therefore does not represent a deviation from the FAR Changes
clause or a new procurement regulation requiring publication for public comment.

Procurement
Competitive Negotiation
n Offers
W W Designs
n W W Evaluation
n W W n Technical acceptability
Use in production contract of preproduction evaluation (PPE) clause in order to shift burden to
contractor to evaluate production drawings/specifications and to suggest and accept engineering
changes for certain purposes before beginning production with no increase in price or delay in
delivery is proper where the contractor will be compensated for its PPE efforts as part of the over-
all contract price.

Page 42                                                                   Digests-January      1990
B-237083, January 19,199O                                                           90-l CPD 76
Procurement
Bid Protests
n GAO procedures
W n Interested parties
Sixth lowest bidder protesting maximum age requirement for buses used in providing solicited bus
service is not an interested party under Bid Protest Regulations, where the firm would not have
been in line for award even if protested restriction were omitted. Protester’s unsupported allega-
tion of unspecified challenges against lower bidders is not sufficient to establish that protester
would be in line for award if its protest were sustained.

Procurement
Contract Management
n Contract administration
W H GAO review
Contention that agency treated protester unfairly in administration of prior contract involve a
matter of contract administration not cognizable under Bid Protest Regulations


B-237158, January 19,199O                                                           90-l CPD 77
Procurement
Sealed Bidding
W Bids
W n Responsiveness
n W W Price omission
n W H m Unit prices
Bidder’s failure to include in its bid unit prices for subline items, as required by the solicitation,
renders its bid nonresponsive because without these unit prices calculation of payment deductions
for unsatisfactory performance cannot properly be made by agency, and bidder retains the oppor-
tunity to control the amount of these deductions after bid opening by allocating total prices to
specific subline tasks that are subject to payment deductions.

B-237172, January 19,1990***                                                        90-l CPD 78
Procurement
Sealed Bidding
n Bids
n H Error correction
n W W Low bid displacement
I n W W Propriety
Agency improperly permitted correction of bid containing discrepancy between arithmetic total of
line item prices and grand total price indicated in bid where either price reasonably could have
been intended, and only one of which was low. Agency may not rely upon bidder’s worksheets to
determine which price was intended since the request for correction is considered as resulting in
displacing a lower bid.




Page 43                                                                    Digests-January       1990
B-234624.2. January 22.1990                                                        90-l CPD 79
Procurement
Bid Protests
W GAO procedures
n n Protest timeliness
n H W Apparent solicitation     improprieties
Protest by original awardee that agency improperly amended the solicitation and required resub-
mission of proposals is untimely when filed more than 5 months after protester was advised of
agency action.

Procurement
Bid Protests
W GAO procedures
W H Protest timeliness
W W W lo-day rule
Protest by original awardee, challenging agency’s release of its technical proposal, is untimely
where protester had reason to know of its release more than 7 months prior to filing its protest
and any actual ignorance of release is attributable to a failure to diligently pursue the informa-
tion

B-235583.2, B-235584.2, January 22,199O                                            90-l CPD 80
Procurement
Bid Protests
n GAO procedures
n H GAO decisions
W n W Reconsideration
Request for reconsideration that is based on arguments that could have been, but were not, raised
by the protester in the course of its original protest is denied.

B-236903, January 22, 1990                                                         90-l CPD 81
Procurement
Competitive Negotiation
W Competitive advantage
W n Conflicts of interest
l l H Post-employment restrictions
W W l W Allegation substantiation
Protest that bidder should have been disqualified from competing under solicitation for services
for which the owner of the bidder’s company formerly served as the contracting officer’s represent-
ative under a predecessor contract, an alleged conflict of interest, is denied where there is no evi-
dence that the former employee was privy to agency information which was not publicly available,
or that any action of the former employee resulted in prejudice for or on behalf of the bidder.




Page 44                                                                   Digests-January       1990
Procurement
Contractor Qualification
W Responsibility
I m Contracting officer findings
W H n Affirmative determination
W n n H GAO review
The General Accounting Offrce will not review an affirmative determination of responsibility
absent a showing of possible fraud or bad faith on the part of the procurement officials, or that
definitive responsibility criteria in the solicitation were misapplied.

Procurement
Contractor Qualification
W Responsibility
W n Contracting officer findings
I I I Pre-award surveys
n n W n Administrative discretion
An agency is not required to conduct a preaward survey when the information available to it is
sufficient to allow the contracting officer to make an affirmative responsibility determination.

B-236933, January 22,1990***                                                       90-l CPD 82
Procurement
Competitive Negotiation
n Best/final offers
n W Price adjustments
H W n Misleading information
W W n W Allegation substantiation
Protest that firm was misled by alleged agency oral advice is denied where even if protester’s ver-
sion of facts were true, the record contains no evidence that protester was placed at a competitive
disadvantage by the alleged oral advice.

Procurement
Competitive Negotiation
H Offers
n W Evaluation
n W H Downgrading
n n H H Propriety
Downgrading of protester’s proposal under one of 19 evaluation subcriteria during the best and
final offer evaluation was not prejudicial to the protester because it did not materially affect
source selection decision.

Procurement
Competitive Negotiation
W Offers
W n Evaluation
Protest that agency failed to properly follow the source selection plan (SSP) in evaluating offers is
denied since SSPs are merely internal agency instructions which do not vest outside parties with
rights, and agencies are only required to adhere to the evaluation scheme outlined in the solicita-
tion.

Page 45                                                                   Digests-January       1990
Procurement
Bid Protests
W GAO procedures
n I Protest timeliness
n H W Deadlines
W n I n Constructive notification
Procurement
Competitive Negotiation
W Contract awards
W W Award procedures
n W W Procedural defects
Protest that agency failed to timely notify protester of intent to award to another firm is denied
where, even though agency erred in not providing timely notice, protester was not prejudiced.

B-236952, January 22, 1990                                                          90-l CPD 83
Procurement
Competitive Negotiation
n Contract awards
H n Award procedures
W n W Procedural defects
Agency’s failure to promptly notify unsuccessful offeror of award is a procedural defect that does
not affect the validity of a contract award.

Procurement
Competitive Negotiation
n Offers
n n Evaluation
n W H Administrative discretion
Agency’s failure to consider past performance of offeror in evaluation is unobjectionable where
offeror failed to address that past performance in its proposal.

Procurement
Competitive Negotiation
n Offers
W n Price determination
I W n Collusion
n n n W Allegation substantiation
Mere fact that two or more offerors proposed to utilize the same subcontractor to perform a por-
tion of the required work does not establish that the offerors engaged in price collusion and thus
does not establish that the offerors falsely certified in their offers that they independently arrived
at their prices.




Page 46                                                                    Digests-January       1990
B-237209, January 22,199O                                                         90-l CPD 84
Procurement
Socio-Economic Policies
W Small businesses
W n Responsibility
H n W Competency certification
n n n H Negative determination
Protest challenging rejection of protester as nonresponsible is denied where protester fails to show
that nonresponsibility determination by contracting agency and subsequent denial of certificate of
competency by Small Business Administration (SBA) were the result of bad faith- notwithstand-
ing protester’s disagreement with contract agency’s and SBA’s conclusions-because record con-
tains no evidence that government officials acted with specific and malicious intent to harm pro-
tester.

B-237291, January 22,1990***                                                      90-l CPD 85
Procurement
Contractor Qualification
n Responsibility
n W Contracting officer findings
n n W Affirmative determination
n n n n GAO review
Affirmative responsibility determination is not subject to objection where, although awardee had
experienced financial difficulties, contracting officer considered the company’s financial situation
and found in light of the fact that the company has become part of another corporation reportedly
in a strong financial position, and has submitted satisfactory bank references, that company had
the financial resources to perform the contract.

Procurement
Contractor Qualification
n Responsibility/responsiveness       distinctions
8 W Sureties
W W n Financial    capacity
Procurement
Sealed Bidding
I Bid guarantees
W n Sureties
W n n Acceptability
Protest against agency’s acceptance of awardee’s four individual sureties is denied where agency
investigated the sureties and found that at least two of them were acceptable.




Page 47                                                                   Digests-January      1990
B-237321, January 22, 1990***                                                        90-l CPD 86
Procurement
Contractor Qualification
n Organizational conflicts of interest
H n Allegation substantiation
n n n Evidence sufficiency
Procurement
Socio-Economic Policies
W Small business S(a) subcontracting
n W Contract awards
I n n Delays
n n W H Pending protests
In light of agency’s broad discretion to decide to contract or not contract through the section 8(a)
program, there is no legal basis to object to agency’s suspension of negotiations with an 8(a) firm
pending resolution of protest by another 8(a) firm involving allegations of conflict of interest on
the part of the agency’s technical project officer in selecting the 8(a) firm for negotiations or to the
issuance of a task order for these services within the scope of an existing contract with a third 8(a)
contractor.

B-237383. Januarv 22. 1990                                                           90-l CPD 87
Procurement
Specifications
W Minimum needs standards
W H Competitive restrictions
II m n Geographic restrictions
W H n n Justification
An agency may restrict a procurement to offerors within a specified geographical area if the re-
striction is reasonably necessary for the agency to meet its minimum needs. Fact that the
protester/incumbent performed the same services satisfactorily from a location substantially out-
side of the specified area does not in itself mean the restriction is unreasonable where the record
provides no reason to question the agency’s view that its 3-year experience with the incumbent
has shown that frequent faceto-face interchange between the parties is essential to meet its mini-
mum needs.

B-237415, January 22,199O                                                            90-l CPD 88
Procurement
Socio-Economic Policies
n Preferred products/services
n n Domestic products
n n W Compliance
Milling machine accessories required for the machine to meet solicitation specifications may prop-
erly be considered as components in determining whether their cost should be considered for pur-
poses of determining whether the machine meets the requirement that it be manufactured domes-
tically.




Page 48                                                                     Digests-January       1990
Procurement
Socio-Economic Policies
H Preferred products/services
W H Domestic products
W H W Interpretation
An agency’s evaluation of a product as domestically manufactured will not be disturbed where a
foreign manufactured machine iron is transformed into a finished milling machine by a domestic
manufacturer who installs domestically manufactured components and the domestic: components
constitute more than 50 percent of the cost of the end product.

B-237467, January 22,199O                                                            90-l CPD $9
Procurement
Sealed Bidding
W Bids
I n Error correction
n W H Low bid displacement
n W H n Propriety
Correction of bid displacing a lower bidder is not permitted unless the existence of the mistake
and bid intended are substantially ascertainable from the invitation and bid itself. Where bid for
services contains identical prices for monthly unit and extended yearly prices, and the only rea-
sonable interpretation of the bid is that yearly prices were correct, agency properly allowed correc-
tion.

B-236373.6, January 23,199O                                                          90-l CPD 90
Procurement
Bid Protests
n GAO procedures
W n Administrative reports
W W W Comments timeliness
Protester’s late receipt of agency report is not a basis for reopening protest dismissed for failure to
file comments or express continued interest in the protest within 10 working days after receipt of
the report; acknowledgment notice specifically informed protester of the need to advise the Gener-
al Accounting Office of late receipt of report.

B-236742, B-236743, January 23,199O
Procurement
Contract Management
R Federal procurement regulations/laws
R n Revision
n W W Government property
WWmmIJse
General Accounting Office has no objection to Federal Acquisition Regulation (FAR) case No.
89-58, a proposal to amend FAR 09 45.304, 51.103, 51.200, 52.204 and 52.251.2 to clarify contractors’
use of government vehicles and government sources of supply.




Page 49                                                                     Digests-January       1990
Procurement
Noncompetitive Negotiation
n Federal procurement regulations/laws
n n Revision
n H H Subcontractors
n n n n Contract awards
General Accounting Office comments on Federal Acquisition Regulation (FAR) case NO. 89-59, a
proposal to amend FAR $44.202-1 to clarify subcontract notice and consent requirements, by sug-
gesting that the section provide that the government’s designation of a specific subcontractor must
be justified.

B-236920, January 23, 1990                                                          90-l CPD 91
Procurement
Sealed Bidding
n Bid guarantees
n n Sureties
n n n Acceptability
General Accounting Office (GAO) denies a protest alleging that individual sureties named on the
bid bond of the low bidder are not acceptable where the protester presents no evidence to support
its assertion. The acceptability of individual sureties is a matter of bidder responsibility where the
contracting officer is vested with a wide range of discretion and business judgment, and GAO will
not object to an affirmative determination in this type of case unless bad faith by procuring offi-
cials is shown.

Procurement
Sealed Bidding
n Line items
n n Cost restrictions
n H n Waiver
H n n n Administrative      discretion
Agency has the discretion to request and receive waivers of the statutory cost limitation on one
line item of low bid on family housing unit project even after bids are opened if the waiver is
granted prior ix award in accordance with Department of Defense procedures.

B-236927, January 23, 1990***                                                       90-l CPD 92
Procurement
Sealed Bidding
H Bid guarantees
n n Sureties
n n n Acceptability
m m n n Information      submission
Agency reasonably found individual surety on bid bond unacceptable, and thus properly rejected
bidder as nonresponsible, where, in response to agency request for supporting information showing
ownership and value of assets claimed, the surety submitted escrow agreement as a pledge of
assets, but the agreement was made subject to Louisiana, rather than federal law; agency was not
required to compromise the financial guarantee represented by the bid bond by making govern-
ment subject, in case of default, to laws under which its rights may be less than under federal law,
which otherwise applies to federal contracts.

Page 50                                                                    Digests-January       1990
B-236964, January 23,199O                                                         90-l CPD 93
Procurement
Competitive Negotiation
n Contract awards
W W Administrative discretion
W H H Cost/technical tradeoffs
I H n n Technical superiority
Protester’s argument that its technical proposal was substantially equal to the awardee’s and thus
its lower price entitled it to award is rejected where record shows that awardee’s proposal was
reasonably regarded aa technically superior to the protester’s

Procurement
Competitive Negotiation
n Contract awards
H n Administrative discretion
W H W Cost/technical tradeoffs
n n n n Technical superiority
Award to higher priced, higher technically-rated offeror is proper where solicitation provides that
technical considerations are more important than price and the agency reasonably determined
that the technical advantages outweighed the coat savings.

Procurement
Competitive Negotiation
W Offers
n W Evaluation errors
n W W Allegation substantiation
A protester fails to prove that the proposal evaluation process was biased or that technical evalua-
tions were unreasonable where no independent evidence of bias is provided and the record reason-
abiy supports the contracting agency’s technical judgment.

Procurement
Competitive Negotiation
W Competitive advantage
n n Incumbent contractors
An agency is not required to equalize competition for a particular procurement by considering the
competitive advantage accruing to an offerer due to its incumbent status provided that such ad-
vantage is not the result of unfair government action or favoritism.

B-236985.2, January 23,199O                                                       90-l CPD 94
Procurement
Specifications
W Design specifications
n n Defects
n W n Allegation substantiation
W n I I Evidence sufficiency
Protest that specification calling for “non-coinoperated commercial” washers and dryers is defec-
tive is denied where, contrary to protester’s unsupported contention that only two types of equip

Page 51                                                                   Digests-January      1990
ment-coin-operated commercial and household type-are available, the record shows that equip-
ment meeting description in solicitation in fact is available.

B-237020.2. January 23.1990                                                        90-l CPD 95
Procurement
Bid Protests
m GAO procedures
n W Protest timeliness
n n H Apparent solicitation     improprieties
Protest of alleged solicitation defect which is apparent prior to the closing date for the receipt of
initial proposals must be filed prior to the closing date to be considered timely.

Procurement
Competitive Negotiation
n Contract awards
I n Administrative discretion
W H W Cost/technical tradeoffs
n W n n Cost savings
Procurement
Competitive Negotiation
W Offers
n W Evaluation errors
I l W Non-prejudicial allegation
Award will not be disturbed where protester was not prejudiced by alleged improper evaluation of
its proposal where even if protester’s proposal received maximum point acores in challenged eval-
uation areas, it still would not have been rated technically superior to awardee’s lower-priced pro-
posal.

B-237033. January 23.1990                                                          90-l CPD 96
Procurement
Sealed Bidding
n Bids
n W Responsiveness
n W W Descriptive literature
H W W R Adequacy
Where an invitation for bids required descriptive literature sufficient to determine whether the
offered item conformed to the technical specifications and bidders were advised that failure to do
so would require rejection of their bids, the procuring agency properly rejected as nonresponsive a
bid whose descriptive literature referencing the item failed to establish that the item would meet
the listed solicitation requirements.




Page 52                                                                   Digests-January       1990




                                                                                                        j
B-237239, January 23,199O                                                            90-l CPD 97
Procurement
Competitive Negotiation
n Offers
n n Competitive ranges
W W n Exclusion
n W n n Administrative discretion
Exclusion from the competitive range was proper where protester’s technical proposal scored sub-
stantially below technically acceptable proposals within the competitive range and would require
major revisions to become acceptable.

B-237293, January 23, 1990                                                           90-l CPD
                                                                                           -- 98
Procurement
Competitive Negotiation
n Requests for proposals
n H Terms
I I I Ambiguity allegation
n H W W Interpretation
Solicitation provision is not ambiguous where its meaning is clear and an alternate interpretation
suggested by protester-that an explanatory note in one exhibit of the solicitation also applied to
another, different exhibit simply because both exhibits contained asterisks-is clearly unreason-
able.

Procurement
Bid Protests
H GAO procedures
W W Protest timeliness
W W n Apparent solicitation      improprieties
Protest alleging solicitation impropriety   is untimely   where not filed prior to closing date for re-
ceipt of proposals.

B-237627, B-237631, January 23, 1990
Procurement
Payment/Discharge
W Federal procurement regulations/laws
n W Revision
n n n Cost reimbursement
General Accounting Office has no objection to Federal Acquisition Regulation (FAR) case No.
89-71, a proposal to add paragraph (a)(4) to the cost principle at FAR section 31.205-41 to make
the Superfund tax an allowable contract cost.




Page 53                                                                      Digests--January     1YiYU
Procurement
Special Procurement Methods/Categories
n Federal procurement regulations/laws
W n Revision
n n W Service contracts
m I n n Service continuity
General Accounting Office has no objection to Federal Acquisition Regulation (FAR) case NO.
89-68, a proposal to revise FAR se&on 37.110(c) concerning use of the clause at FAR section
52.237-3, Continuity of Services.

B-238078, January 23,199O
Procurement
Competitive Negotiation
n Federal procurement regulations/laws
H H Revision
n H W Construction contracts
General Accounting Office has no objection to Federal Acquisition Regulation (FAR) case NO.
89-78, a proposal that would prescribe new solicitation provisions for negotiated construction con-
tracts.

B-236491, B-236493, January 24,199O
Procurement
Payment/Discharge
n Federal procurement regulations/laws
H W Revision
W W n Prime contractors
H I l l Liquidated damages
General Accounting Office has no objection to Federal Acquisition Circular 84-50, an interim rule
revision Federal Acquisition Regulation (FAR) Subpart 19.7 and adding a contract clause at FAR
section 52.219-16 to implement section 304 of the Business Opportunity Development Reform Act
of 1988, Pub. L. No. 100-656, which provides for payment of liquidated damages by a prime con-
tractor that fails to make a good faith effort to comply with a required subcontracting plan.

Procurement
Socio-Economic Policies
H Federal procurement regulations/laws
W W Revision
General Accounting Office has no objection to Federal Acquisition Regulation (FAR) case No.
89-61, a proposal to amend to the cost principles at FAR Subparts 31.3, 31.6, and 31.7, which deal
with cost allowability under contracts with, respectively, educational institutions, Indian tribal
governments, and nonprofit organizations, to reflect recent statutory changes.




Page 54                                                                  Digests-January     1990
B-236974.2. Januarv 24. 1990                                                       90-l CPD 99
Procurement
Bid Protests
W GAO procedures
W n Interested parties
H W W Direct interest standards
Procurement
Bid Protests
H GAO procedures
H W Protest timeliness
n W n lo-day rule
Protest by third low offeror against awardee is dismissed as protester is not interested party next
in line for award. Subsequent protest against second low offeror, filed more than 10 working days
after basis of protest was known, is dismissed as untimely and therefore does not confer standing
as interested party on protester.

B-237190, B-237192, January 24, 1990                                             90-l CPD 100
Procurement
Contractor Qualification
n De facto debarment
n n Non-responsible contractors
Two determinations of nonresponsibility under two contemporaneous procurements do not consti-
tute de facto suspension or debarment where they are based on currently available information,
reasonably showing record of unsatisfactory performance.

Procurement
Socio-Economic Policies
n Small businesses
n W Competency certification
n n H Bad faith
n W W W Allegation substantiation
Small Business Administration’s (SBA) failure to obtain protester’s rebuttal to all of agency’s un-
satisfactory performance ratings did not constitute a failure to consider vital information, since
SBA possessed relevant rebuttals submitted during prior certificate of competency (COC) process,
and SBA states that it would have denied COCs on the basis of performance under a single con-
tract for which the protester’s rebuttal to proposed unsatisfactory performance rating was ob-
tained and investigated by the SBA.

Procurement
Socio-Economic Policies
H Small businesses
W W Responsibility
W H H Competency certification
W n n n GAO review
Small Business Administration’s denials of certificates of competency are not subject to review
absent evidence that the denials were the result of fraud, bad faith, or a failure to consider vital
information regarding protester’s responsibility.

Page 55                                                                   Digests-January      1990
B-237325, January 24, 1990***                                                    90-l CPD 101
Procurement
Competitive Negotiation
l Best/final offers
n I Rejection
n W W Propriety
Where protester is given notice of agency’s interpretation of government requirement during dis-
cussions, agency properly rejected protester’s offer as unacceptable for failing to meet requirement
in its best and final offer.

Procurement
Soeio-Economic Policies
H Small businesses
H W Competency certification
W n W Eligibility
W n W H Criteria
Where agency properly found a small business concern’s offer to be technically unacceptable, with-
out questioning the offeror’s ability to perform or any other traditional element of responsibility,
agency is not required to refer its determination to exclude the concern’s proposal to the Small
Business Administration under certificate of competency procedures.

B-237387, B-237388, January 24,199O                                              90-l CPD 102
Procurement
Small Purchase Method
n Contract awards
H I Propriety
W W n Contractors
I I H W Identification
An agency may issue a valid purchase order to a firm under a name which includes a phrase in
addition to its corporate name where the firm to bc bound is clearly identified and the additional
phrase does not describe any other active business.

B-237745, January 24,199O                                                        90-l CPD 103
Procurement
Sealed Bidding
W Bid guarantees
n W Sureties
n n n Acceptability
Bid is properly rejected where the bidder is found nonresponsible for its failure to establish the
acceptability of individual bid bond sureties.




Page 56                                                                   Digests-January      1990
Procurement
Socio-Economic Policies
n Small businesses
W n Competency certification
H n H Eligibility
W n W n Criteria
A responsibility determination need not be referred to the Small Business Administration   where it
is based solely on the unacceptability of individual bid bond sureties.

B-236265.2, January 25,1990***                                                  90-l CPD 104
Procurement
Competitive Negotiation
n Discussion reopening
W W Propriety
Where awardee waits until after award to advise the government that certain of its proposed line
items do not meet the technical specifications required by the solicitation, if agency reopens dis-
cussions to permit offeror to modify its proposal, it must conduct discussions with all offerors in
the competitive range.

B-236988, B-236988.2, January 25,199O                                           90-I CPD 105
Procurement
Competitive Negotiation
W Competitive advantage
W W Non-prejudicial allegation
Protester was not prejudiced by agency not disclosing government-rights software used by the
awardee in its proposal since solicitation encouraged offerors to use such software, all offerors
used it, and the awardee’s use of such software had an insignificant effect on its proposed costs.
                            -
Procurement
Competitive Negotiation
W Offers
W n Evaluation errors
I n n Non-prejudicial allegation
Contrary to the protester’s speculation otherwise, record reflects that competing system designs
were evaluated using the same standard to determine whether they would degrade “operational
missions” of an existing central processing unit-even under the protester’s interpretation of the
term “degrade.”

Procurement
Competitive Negotiation
M Technical evaluation boards
W n Bias allegation
W n n Allegation substantiation
W W W W Evidence sufficiency
Protester’s general expression of disagreement with the conclusions of the agency’s technical eval-
uators does not establish that their judgments were unreasonable.

Page 57                                                                  Digests-January      1990
Procurement
Competitive Negotiation
n Technical evaluation boards
n n Bias allegation
n n n Allegation substantiation
n n n I Evidence sufficiency
Protester was not prejudiced in the evaluation of its cost proposal where record shows that alleged
irregularities in the evaluation process did not affect the final ranking of proposals.

B-237008, January 25, 1990                                                       90-l CPD 106
Procurement
Competitive Negotiation
H Offers
n n Cost realism
n n n Evaluation
n n H n Administrative discretion
Cost realism analysis is reasonable where: (1) contracting officer reviewed the labor rates proposed
by each offeror and requested the Defense Contract Audit Agency (DCAA) to compare the pro-
posed rates with the average rates paid by each offeror in each labor category on a company-wide
basis; (2) contracting officer adjusted proposed rates upward if average rates paid by an offeror for
a particular category of labor were higher than proposed rates; and, (3) wherever possible RCAA
verified that rates proposed for certain individuals named in proposals are in fact the actual rates
that those individuals are paid.

Procurement
Competitive Negotiation
H Unbalanced offers
I l Cost allocation
H n q Labor costs
n n n n Justification
The concept of unbalanced bidding generally is not relevant in a negotiated procurement in which
award is based upon evaluation of cost and technical factors with technical factors considered
more important than cost. In any event, protest alleging that awardee’s offer was unbalanced is
denied where review of awardee’s proposed labor rates for cost-plus-fixed-fee contract reveals that:
(1) overall rates for basic year of contract and all three option years are roughly equal allowing a
reasonable escalation factor in each option year; and (2) there is no evidence that proposed rates
are nominal for some labor categories and enhanced in others.

B-237214, January 25,199O                                                         90-l CPD 107
Procurement
Competitive Negotiation
H First-article testing
I l Prior contractors
H n l Waiver
n H n n Propriety
Agency’s decision not to waive first article testing requirement for protester, a current producer of
the item being procured, was reasonable where the technical data package for the item had
changed, the agency anticipated preproduction evaluation changes, and there were quality prob-
lems with protester’s current production.

Page 58                                                                   Digests-January       1990
Procurement
Sealed Bidding
n Bids
W H Responsiveness
W W W Certification
n n n n Submission time periods
Contention that awardee that submitted Certificate of Procurement Integrity with its initial pro-
posal failed to comply with requirement that Certificate be provided as close as practicable to
award is denied where awardee submitted additional Certificate after award covering the period
between its initial proposal and award, performance of the protested contract has been suspended
pending resolution of the protest, and statutory requirement for submission of Certificate has been
suspended.

B-237228, January 25, 1990                                                        90-l CPD 108
Procurement
Contractor Qualification
H Responsibility
n W Contracting officer findings
n H n Bad faith
n W W H Allegation substantiation
Protest of award of a contract for source controlled item to approved source is denied where pro-
tester fails to demonstrate that agency’s affirmative determination of awardee’s responsibility was
the result of fraud or bad faith on the part of the contracting officer, and solicitation did not con-
tain a definitive responsibility criterion.

B-237338, January 25,199O                                                         90-l CPD 109
Procurement
Bid Protests
W GAO procedures
W W Interested parties
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 low bidder-to assert rights and present the neces-
sary evidence to resolve mistake questions.

Procurement
Sealed Bidding
W Contract awards
I I Qualified offers
m n n Propriety
Protest that statement in a bid which was low on two of nine line items under a solicitation per-
mitting multiple awards improperly qualified the bid is denied where the only reasonable interpre-
tation of the statement is that it qualified bid items, other than the two, upon which the award
was based.




Page 59                                                                    Digests-January      1990
B-226941.5, January 26, 1990                                                    90-l CPD 110
Procurement
Bid Protests
n GAO procedures
n W Preparation costs
Protester is entitled to be reimbursed for coata of its president’s time in pursuing protest where
protester, in accordance with prior decision of General Accounting Office, suffkiently documents
president’s base salary.

Procurement
Bid Protests
n GAO procedures
W W Preparation costs
Protester is not entitled to recover costa of bonus paid to president where protester does not show
that bonus was paid in accordance with standards set forth in Federal Acquisition Regulation.

B-230078.2, B-230079.2, January 26,1990***                                      90-l CPD 111
Procurement
Bid Protests
n GAO procedures
H n Preparation costs
Procurement
Competitive Negotiation
n Offers
n W Preparation costs
Protester awarded costs in connection with successful protest is entitled to reimbursement for pre
posal preparation and protest costs incurred or initially paid by prospective subcontractor, where
the costs were incurred by the subcontractor acting in concert with and on behalf of offeror and
offeror has agreed to reimburse to subcontractor the amount ultimately recovered from the gov-
ernment.

Procurement
Bid Protests
a GAO procedures
n n Preparation costs
Where claim for costs of proposal preparation and of filing and pursuing protests is not adequately
documented, claimant is not entitled to recovery.




Page 60                                                                  Digests-January      1990
B-236733.2, January 26,199O                                                        90-l CPD 112
Procurement
Competitive Negotiation
H Bequests for proposals
n n Cancellation
n n n Justification
n n W n GAO review
Where Veterans Administration (VA) properly accepted a gift of intravenous medical equipment
for VA patients under statutory authority, VA is not required to reissue a solicitation for the same
equipment which had previously been canceled.

Procurement
Bid Protests
W GAO procedures
n n Anticipated profits
Offeror has no legal entitlement to anticipated profits under canceled solicitation.

B-237019, January 26,199O                                                          90-l CPD 113
Procurement
Noncompetitive Negotiation
W Sole sources
II II Justification
n n H Intellectual property
Sole-source award of a contract for an automated mileage software database package is unobjec-
tionable where the agency reasonably determines that only one source can supply the desired
product, since only that source holds a copyright to the mileage guides upon which the software
must be based.

B-237069, January 26,199O                                                          90-l CPD 114
Procurement
Competitive Negotiation
I Competitive advantage
n n Conflicts of interest
H n W Post-employment restrictions
n W W W Allegation substantiation
Procurement
Contractor Qualification
n Organizational conflicts of interest
n W Allegation substantiation
W n W Evidence sufficiency
The mere employment of a former consultant to the agency who is familiar with the work re
quired and helped prepare the specification does not confer an unfair competitive advantage or
establish a conflict of interest where the facts do not demonstrate that any action of the consult-
ant resulted in prejudice for or on behalf of the awardee, that the consultant had access to inside
agency information concerning the procurement, or that the consultant’s prior employment im-
properly influenced the evaluation and award.

Page 61                                                                     Digests-January    1990
Procurement
Competitive Negotiation
n Contract awards
W l Administrative discretion
W m W Cost/technical tradeoffs
l I II m Technical superiority
Contracting agency acted reasonably in selecting for award an offeror proposing to validate pro-
posed towed buoy antenna system, by means of dynamic computer model to simulate operation of
an actual buoy system, over offeror proposing a slightly less expensive, but unproven and invali-
dated new system.

B-237352, January 26,199O                                                       90-l CPD 115
Procurement
Bid Protests
n GAO procedures
W W Protest timeliness
I I W Apparent solicitation       improprieties
Protest challenging requirement     apparent from the face of an invitation   for bids is untimely
where filed after bid opening.

Procurement
Sealed Bidding
W Bids
n W Responsiveness
W n W Terms
W W n I Deviation
Protester’s bid was properly rejected as nonresponsive where bid stated on its face that it did not
comply with a material requirement in the specification that battery backup to radio fire alarm
monitoring system must transmit continuous low battery messages once the strength of such bat-
teries dropped below a certain level.

Procurement
Sealed Bidding
W Non-responsive bids
W n Post-bid opening periods
WI W Clarification
n H W n Propriety
Agency properly refused to permit modification of nonresponsive bid to render such bid responsive
as such action gives firms the option of accepting or rejecting a contract after bids are exposed,
thus impairing the integrity of the competitive bidding process.




Page 62                                                                  Digests--January     1990    P
B-237384, January 26, 1990                                                      90-l CPD 116
Procurement
Sealed Bidding
n Bids
n W Errors
n n W Error substantiation
Agency properly rejected bid where price was so low as to be clearly mistaken and protester failed
to provide evidence that its bid would have been low absent mistake.

Procurement
Sealed Bidding
H Contracting officers
H n Bad faith
n n W Allegation substantiation
Contention that procurement was tainted based on protester’s allegation that contracting officer
improperly released to its competitor the name of the firm which had provided a funds commit-
ment letter to the protester is denied where record indicates only that the contracting officer, in
response to a request for the name of the protester’s bond surety, inadvertently misidentified the
company which had issued the commitment letter as protester’s surety, and later provided the
correct name.

B-238032, January 26,199O              l   epd?90-1 CPD 117
Procurement
Bid Protests
n Forum election
n W Finality
General Accounting Office will not consider a protest which sets forth the same issues raised by
the protester in a pending claim before the agency’s Board of Contract Appeals.


B-235431.4, et al., January 29,199O                                             90-l CPD 118
Procurement
Bid Protests
l GAO procedures
H W GAO decisions
n W n Reconsideration
W H H n Additional information
Procurement
Bid Protests
n GAO decisions
n n Recommendation
n n W Modification
Prior recommendation that contracting agency suspend performance on current contract, resohcit
and terminate current contract if appropriate is modified on reconsideration where agency estab
lishes urgent and compelling need for contract performance and advises that performance is sub-
stantially completed.

Page 63                                                                  Digests-January      1990
B-236725.2, January 29,199O                                                        90-l CPD 119
Procurement
Bid Protests
n GAO procedures
W m GAO decisions
H H n Reconsideration
Reconsideration request is denied where the protester has presented no evidence that prior deci-
sion was based on factual or legal errors.

B-236981, January 29,199O                                                          90-l CPD 120
Procurement
Contractor Qualification
H Responsibility
I I Contracting officer findings
W n H Affirmative determination
W m W 1 GAO review
Procurement
Contractor Qualification
n Responsibility/responsiveness       distinctions
Since solicitation provision restricting the procurement to “previous proven producers” relates to
bidder responsibility, not responsiveness of the bid, the General Accounting Office will not review
an affirmative determination of bidder’s responsibility in the absence of circumstances not applica-
ble here.

B-237047, January 29,199O                                                          90-l CPD 122
Procurement
Sealed Bidding
n Bids
I II Responsiveness
W W W Shipment schedules
n W n n Deviation
Procurement
Sealed Bidding
W Two-step sealed bidding
n n Offers
n n n Evaluation
H n W H Administrative discretion
Bid is properly rejected as nonresponsive where bid does not clearly evidence the bidders’ intent to
provide drawings for approval within the time period specified in the invitation for bids.

B-237049, January 29,199O                                                          90-l CPD 121
Procurement
Contract Management
n Contract administration
n 1 GAO review
Protest that solicitation’s procedural specifications relating to the processing of various contractor
requests are unduly vague is denied where solicitation is clear as to the procedural requirements,

Page 64                                                                     Digests-January       1990
and protester’s “evidence” is comprised of information as to how agency handled such requests
under predecessor contract. Agency’s previous actions as well as possible future actions concern
contract administrzuion matters which are not for review by the General Accounting Office.

Procurement
Specifications
n Minimum needs standards
n n Risk allocation
n n w Performance specifications
Protest that “performance type” specifications for construction of Navy vessel are restrictive of
competition is denied where solicitation design risks involved are apparent and obvious to all expe-
rienced offerors, Risks are inherent in procurements, and offerors are expected to use their profes-
sional expertise and business judgment in taking these risks into account in computing their
offers.

B-237054, January 29,1990***                                                      90-l CPD 123
Procurement
Competitive Negotiation
n Contract awards
I m Administrative discretion
n n n Cost/technical tradeoffs
I I n R Technical superiority
Procuring agency made a proper cost/technical analysis in determining to make award to a higher
technically rated, higher cost offeror over protester’s significantly lower rated, lower cost proposal
where the record shows that the agency reasonably found that the protester’s low Cost approach
may not allow for the quality of work and personnel contemplated by the solicitation as indicated
by the protester’s entry level labor rates and excessive hours proposed to accomplish the sample
task.

B-237245, et al., January 29,1990***                                               90-l CPD 124          I
Procurement
Sealed Bidding
w Contract awards
H w Propriety
n n H Performance specifications
H n H H Waiver
Protest that bidder’s proposed roofing system did not satisfy a solicitation requirement that the
roof have a Class A fire rating is denied where record indicates that the roofing system in fact
satisfied the requirement.

B-237282, January 29,1990***
Procurement
Socio-Economic Policies
n Preferred products/services
I I Domestic products
n w H Construction contracts
Under a construction contract, elevator dispatching system which is to be incorporated into the
building constitutes construction material under the Buy American Act. Therefore, award&s for-
eign made group overlay controls, as components of the system, do not violate the act’s prohibition
against the use of foreign construction material.

Page 65                                                                     Digests-January      1990
Procurement
Competitive Negotiation
n Contract awards
n W Administrative discretion
n n n Cost/technical tradeoffs
W W W n Technical superiority
Award to higher priced, higher technically rated offeror is not objectionable where technical con-
siderations outweighed cost in solicitation’s award criteria, and the agency reasonably concluded
that the awardee’s superior proposal provided the best overall value.

B-237746, January 29,199O                                                        90-l CPD 126
Procurement
Sealed Bidding
n Bid guarantees
W H Sureties
n n W Acceptability
Bid was properly rejected where the bidder is found nonresponsible for its failure to establish that
individual bid bond sureties were acceptable.

B-237964.2. Januarv 29.1990                                                      90-I CPD 127
Procurement
Bid Protests
M GAO procedures
H W GAO decisions
n n W Reconsideration
Procurement
Socio-Economic Policies
H Small businesses
n H Contract awards
n l H Eligibility
General Accounting OWce will not review an agency’s actions under the Section 8(a) program
absent a showing that agency offkials have violated regulations or engaged in fraud or bad faith.

B-238131. Januarv 29.1990                                                        90-l CPD 128
Procurement
Bid Protests
W GAO procedures
n n Protest timeliness
n I n Apparent solicitation     improprieties
Protest challenging an alleged impropriety apparent from the face of a solicitation      is untimely
where tiled after the closing date for receipt of proposals.




Page 66                                                                   Digests-January       1990
B-238220.2, January 29, 1990                                                     90-l CPD 129
Procurement
Bid Protests
W GAO procedures
W n GAO decisions
W H H Reconsideration
Procurement
Bid Protests
W GAO procedures
n W Protest timeliness
n W W Significant issue exemptions
W n W n 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.

B-237067.2, January 30,199O                                                      90-l CPD 130
Procurement
Bid Protests
n GAO procedures
W W GAO decisions
W I n Reconsideration
Request for reconsideration of prior decision dismissing protest is denied when based on repetition
of arguments and facts considered when previous protest was dismissed.

B-237201, B-237201.3, January 30, 1990                                           90-l CPD 131
Procurement
Competitive Negotiation
W Discussion
W I Offers
H n n Clarification
W n I W Propriety
Protest that agency held discussions with awardee is denied because clauses included in final con-
tract document, which protester contends indicate that discussions were held, did not affect the
agency’s assessment that awardee’s proposal satisfied the requirements of the RFP.

Procurement
Competitive Negotiation
n Discussion
W W Propriety
H W n Allegation substantiation
n W n W Evidence sufficiency
Even if it is shown that discussions were held with any offeror other than the awardee, whether
with the protester or other disappointed offeror, protester did not suffer any competitive prejudice
since alleged discussions did not give awardee an unfair competitive advantage by permitting it to
make its proposal acceptable or otherwise improve it.

Page 67                                                                   Digests-January      1990
Procurement
Competitive Negotiation
W Contract awards
W n Initial-offer awards
W n W Propriety
Contracting agency did not abuse its discretion in proceeding with award on an initial proposal
basis to the iow offeror even though protester submitted a letter offering to reduce its costs.
Agency was not required to conduct discussions as a result of protester’s letter, which was submit-
ted 4 months after initial proposals were received and just a few days before award was made,
when the suggested reductions were not substantiated in the letter and the likelihood of sign&
cant reductions must be balanced against agency’s interest in making a timely award without the
time and expense of discussions.

B-237285, January 30,199O                                                        90-l CPD 133
Procurement
Noncompetitive Negotiation
W Contract awards
n n Sole sources
W H n Propriety
A contracting agency has a reasonable basis for determining that only one source can meet its
needs for elevator maintenance services where only two sources expressed interest in maintaining
the elevators and one of the two sources had been determined nonresponsible under solicitation
for identical services less than 1 month before based on its poor past performance.

B-237733.2, January 30, 1990                                                     90-l CPD 142
Procurement
Bid Protests
n GAO procedures
W H Protest timeliness
n n n Apparent solicitation     improprieties
Protest alleging improprieties apparent on the face of the solicitation but filed after the bid open-
ing date is untimely.

Procurement
Bid Protests
W GAO procedures
1 W Interested parties
Firm which submitted a “no bid” response to a procurement because contracting agency denied its
request for an extension of the bid opening date, but which did not timely protest the agency’s
action, is not an “interested party” under the General Accounting Office’s Bid Protest Regulations
for the purpose of challenging the awardee’s responsibility or the responsiveness of ita bid.




Page 68                                                                   Digests-January       1990
B-233742.4, January 31, 1990***                                                90-l CPD 132
Procurement
Competitive Negotiation
n Contract awards
R l Propriety
H n H Evaluation errors
n l W H Materiality
Procurement
Competitive Negotiation
H Requests for proposals
H n Terms
W n H Compliance
Award to offeror whose proposal in negotiated procurement failed to conform to material specifica-
tion requirement concerning computer workstation was improper where waiver of requirement re
sulted in competitive prejudice.

B-236953.2, January 31,199O                                                    90-l CPD 143
Procurement
Contractor Qualification
H Responsibility/responsiveness      distinctions
Procurement
Sealed Bidding
W Bids
RI Responsiveness
n n H Certification
W n n W Omission
Bidder’s failure to submit properly and completely executed certification regarding debarment,
suspension, proposed debarment and other responsibility matters with bid at bid opening does not
affect firm’s material obligations under solicitation and therefore does not render bid nonrespon-
sive.

B-237414, January 31. 1990                                                     90-l CPD 144
Procurement
Sealed Bidding
I Invitations for bids
W n Post-bid opening cancellation
n n m Justification
W m W n Sufficiency
Procuring agency’s cancellation of invitation for bids (IFB) after bid opening is proper where
agency reasonably determined that IFB improperly omitted requirement for bid and performance
bonds which it reasonably found were necessary to ensure the continuous performance of essential
stenographic services.




Page 69                                                                 Digests-Januar:      13%’
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