oversight

Digests of Decisions of the Comptroller General of the United States, Vol. I, No. 5

Published by the Government Accountability Office on 1990-02-01.

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

         k




Ctirrent 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                                   ill

Table of Decision Numbers                 iv
Digests
  Appropriations/Financial   Management         1
  Civilian Personnel                            6
  Military Personnel                      13
  Miscellaneous Topics                    16
  Procurement                             17




Page ii
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 offkial 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. $0 ‘74 and 82d). Decisions concerning
claims are issued in accordance with 31 U.S. Code $ 3702 (formerly 31 U.S.C. 8
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-197911.3, February 2, 1990                       19     B-235664.2, February 16, 1990      47
B-220860, February 2,1990* * *                     13     B-235727, February 28,199O          5
B-221129.2, February 23,199O                       16     B-235761.5, February 28,199O       73
B-227534.3, February 21,199O                       11     B-235837, February 23,199O         15
B-229067.2, February 28,199O                       12     B-235846, February 14,199O          8
B-229184, February 16,1990* * *                     9     B-236141.1, February 23,199O        2
B-230250, February 16,1990* * *                     2     B-236141.2, February 23, 1990       3
B-231085, February 15,199O                          9     B-236218.2, February 23, 1990      59
B-231927.2, February 12, 1990                       7     B-236321, February 16,199O         10
B-232139.5, February 28, 1990                      73     B-236330.2, February 14,199O        1
B-232489.2, February 8,199O                         7     B-236371.2, February 13,199O       40
B-233213.2, February 26,199O                       64     B-236516, February 23,1990***      11
B-233379, February 9,199O                          15     B-236651, February 12,199O          8
B-233740.5, February 9,199O                        31     B-236687.2, February 12, 1990      36
B-234006.2, February 13,199O                       39     B-236734.2, February 23,199O       59
B-234242, February 6,199O                           1     B-236735.2, February 27, 1990      69
B-234288, February 8,199O                           7     B-236756, February 5,1990***       13
B-234426, February 23,199O                         15     B-236769, February 8,199O           7
B-234619, February 16,1990***                      47     B-236816, February 8,1990***        1
B-234619, February 16,1990***                       9     B-236836, February 14,199Q          9
B-234695, February 2,1990***                       13     B-236870.2, February 23, 1990      60
B-234695, February 2,1990***                        6     B-236928.2. Februarv 6.1990        26
B-234876.2, February 16,199O                       10     B-236956.3, February 7,199O        26
B-235118, February 2,199O                          20     B-237010.2, et al., February 16,
B-235158, February 6,199O                          14     1990                               48
B-235159, February 7,199O                          14     B-237029, February 1,199O          17
B-235328, February 23,199O                         11     B-237048.3. Februarv 27. 1990      69
B-235569.4, February 23, 1990                      59



***(notes published decisions) Cite published decisions as 69 Comp. Gen.-




Page iv
Table of Decision Numbers




B-237058.2, B-237058.3, February        B-237264, February 5,1990* * *   24
14,199o                            42   B-237267, February 12,199O       37
B-237060.2, February 26, 1990      64   B-237276, B-237277, February 13,
B-237065.2, February 26,199O       65   1990                             40
B-237073.2, February 26,1990* **   65   B-237288, February 7,199O        27
B-237116, February 7,1990***       27   B-237295, February 14,1990* * *  43
B-237146, February 23,1990***       4   B-237299, February 5,199O        24
B-237146, February 23,1990***      16   B-237300, February 1,199O        18
B-237151.2, February 28,199O       74   B-237306.2, February 20, 1990    53
B-237156. February 2.1990          20   B-237320. Februarv 14.1990       43
B-237157.2, February 8,199O        29   B-237327, February 14,1990***    44
B-237160.2, February 2,199O        21   B-237328, February 9,1990***     33
B-237164, February 1, 1990         17   B-237331, B-237331.2, February
B-237166, B-237166.2, February          20,199o                          53
8,199O                             30   B-237335, February 13,199O       41
B-237166.4, B-237166.5, February        B-237337. Februarv 13.1990       41
16,199O                            48   B-237341, February 9,199O        34
B-237170, B-237173, February 2,         B-237342, February 12, 1990      37
1990                               21
                                        B-237347. Februarv 12.1990       38
B-237181, February 1,199O          18
                                        B-237354, February 14,199O       44
B-237183, February 8,199O          30
                                        B-237358, February 12,199O        8
B-237194, February 9,199O          31
                                        B-237359, February 12,199O       38
B-237202, February 2,199O          21
                                        B-237361, February 16,199O       49
B-237207, February 1, 1990         18
                                        B-237363, February 20,199O       54
B-237208, February 9,199O          32
                                        B-237364, February 9,199O        34
B-237208.2, February 20,1990***    53
                                        B-237366, B-237366.2, February
B-237212, February 5,1990***       23   14.1990                          45
B-237248. Februarv 2.1990          22   B-237368, February 16,199O       49
B-237254, February 13, 1990        40   B-237369, February 5,199O        25




Page v
Table of Decision Numbers                                                        Y’




B-237377,   February 22,199O          56   B-237532,   February 16, 1990              51
B-237395,   February 23,199O           4   B-237537,   February 16,199O               51
B-237405,   February 9, 1990          35   B-237545,   February 26, 1990              66
B-237407,   February &I990            19   B-237555.   Februarv 27.1990               70
B-237408,   February 23.1990          60   B-237558,   February 16,199O               51
B-237410,   B-237475, February 21,         B-237572,   February 7,199O                28
1990***                               55   B-237595.   Februarv 27.1990               71
B-237411,   February 1, 1990          19   B-237596,   February 23,199O               61
B-237412,   February 13, 1990         42   B-237598,   B-237599, February 26,
B-237424,   February 15,199O          46   1990***                               . 66
B-237426,   February 16,199O          50   B-237616,   February   7,199O           29
B-237434,   February 23,199O * * *    cl   B-237619,   February   27,199O          71
B-237448,   February 27,199O          70   B-237629.   Februarv   26,1990***       66
B-237454,   B-237454.2, February           B-237632,   February   16,1990***       52
20.1990                               54   B-237638,   February   22,1990* * *     57
B-237465,   February   26,199O        65   B-237640,   February   6,199O            6
B-237466,   February   28, 1990”* *   74   B-237651,   February   13,199O          42
B-237486,   February   26,199O        66   B-237658,   February   12,199O          39
B-237495,   February   22,199O        56   B-237666,   February   23,199O          62
B-237503,   February   27,199O        70   B-237677.   Februarv   16.1990          52
B-237511,   February   9,199O         35   B-237680,   February   5,199O           25
B-237512,   February   20,199O        54   B-237687,   February   22,1990* * *     58
B-237515,   February   7,1990** *     28   B-237692,   February   23,199O          62
B-237517,   February   22,199O        57   B-237752,   February   9,199O           36
B-237522,   February   23,199O        61   B-237794,   February   23,199O          62
B-237527,   February   21,199O        55   B-237826,   February   26,199O          67
B-237530,   February   16,199O        50   B-237843,   February   22,199O          58
B-237531,   February   12, 1990       38   B-237844,   February   28,199O          75




Page vi
       .


Table of Decision Numbers




B-237864, February 23,199O       63   B-238178.2, February 23,199O   63
B-237892, February 7,199O        29   B-238222, February 21,199O      2
B-237978, February 28,199O       75   B-238279, February 8,199O      31
B-237986.4, February 26,199O     68   B-238283.2, February 20,199O   54
B-237991, February 15,199O       46   B-238332, February 22,199O     58
B-237992, February 26,199O       68   B-238347, February 1,199O      19
B-238023, February 22,199O       11   B-238399, February 12,199O     39
B-238031, et al., February 27,        B-238411, February 14,199O     45
1990                             72   B-238458. Februarv 15.1990     46
B-238038, February 23,199O       12   B-238460, February 8,199O      31
B-238039.2, February 27,199O     72   B-238461, February 23,199O     12
B-238074, February 9,199O        36   B-238507, February 15,199O     47
B-238095, February 23,199O       63   B-238541, February 23,199O     63
B-238121, February 1, 1990        6   B-238619, February 22,199O     59
B-238134, February 26,199O       68   B-238621. Februarv 26.1990     68
B-238172, February 21,1990***    56   B-238622, February 28,199O     76




Page vii
                          C
Overruled, Modified and
Distinguished

59 Comp. Gen. 502   11




Page viii
Appropriations/Financial
Management


B-234242. February 6.1990
Appropriations/Financial  Management
Accountable Officers
W Cashiers
W n Relief
H W W Physical losses
WWmWTheft
Appropriations/Financial              Management
Accountable Officers
n Determination criteria
Accountable officer is relieved of liability for physical loss resulting from criminal activity beyond
her control. District Ranger is not an accountable officer; this Office is not the appropriate agency
to address his liability.

B-236816, February 8,1990***
Appropriations/Financial Management
Appropriation Availability
W Purpose availability
H n Specific purpose restrictions
W n W Entertainment/recreation
U.S. Army School of the Americas may use offkial representation funds to pay for a change of
command/incoming commander reception since the reception was an official function rather than
a purely private social one and the use of official representation funds is consistent with Army
regulations.

B-236330.2. February 14.1990
Appropriations/Financial Management
Claims Against Government
n Interest
An Army offker whose initial claim against the government was allowed is not entitled to interest
on the amount paid in the absence of a statute authorizing such payment.




Page 1                                                                    Digests-February       1990
B-230250, February 16,1990***                                                                 3
Appropriations/Financial Management
Budget Process
W Funds
W H Deposit
W N n Miscellaneous revenues
Appropriations/Financial             Management
Claims By Government
H False claims
1 W Claim settlement
n n m Funds
H n m n Deposit
Appropriations/Financial             Management
Claims By Government
W False claims
W H Claim settlement
n W n Interest
The Federal Emergency Management Agency (FEMA) may deposit in the National Insurance De-
velopment Fund (Fund) that portion of a damage award or settlement obtained pursuant to the
False Claims Act that would reimburse the Fund for losses suffered as a result of a policyholder’s
false claims. In addition to the principal amount of the false claims paid, the Fund may be reim-
bursed for interest on that amount plus any administrative expenses incurred in connection with
the payment and recovery of these claims. However, FEMA must deposit any portion of an award
or settlement that exceeds these amounts in the Treasury as miscellaneous receipts.

B-238222, February 21,199O
Appropriations/Financial Management
Accountable Officers
n Agents
W W Relief
n W l Physical losses
H n n n Drug control
Where ‘flashroll’ funds are lost during attempted drug arrest, and DEA determines that agent
acted (1) without negligence and (2) in the performance of his official duties, the expenditure can
be recorded as an investigative expense. In such circumstances, there is no need to seek relief from
our Office. 61 Comp. Gen. 313 (1982).

B-236141.1, February 23,199O
Appropriations/Financial Management
Judgment Payments
W Approval
W W Certifying officers
n n W Elimination
GAO does not object to Treasury’s elimination of its certifying officers from the process by which
payments are made pursuant to 31 U.S.C. 9 1304. Although, as codified, 31 U.S.C. 0 3325(a)(l) (1982)
directs executive branch disbursing officers to pay vouchers certified by the certifying officer or
head of the “executive agency concerned”, the original legislation did not so restrict a disbursing
officer’s authority. Rather, the original 1941 legislation permitted disbursing officers to disburse
over vouchers certified by “the head of the department, establishment, or agency concerned” or

Page 2                                                                   Digests-February      1990
      .


his qr her designee. Thus, for purposes of Judgment Fund payments, GAO by statute is the
“agency concerned” for purposes of 31 USC. 0 3325, and executive branch disbursing offkers can
pay any voucher duly certified by an authorized GAO official.

B-236141.2, February 23.1990
Appropriations/Financial Management
Accountable Officers
H Certifying officers
H W Liability
n W W Legislative/judicial     personnel
Appropriations/Financial              Management
Accountable Officers
n Disbursing officers
n n Liability
n W H Legislative/judicial     personnel
The strict liability imposed by law upon a government disbursing officer for public funds entrusted
to him may not be transferred in whole or in part to another person, unless such a transfer is
specifically authorized by law. While partial transfers of financial liability were mandated with
respect to certifying officers in the executive branch (by chapter 350 of the Act of Aug. 23, 1912,
Pub. L. No. 62-299, 37 Stat. 360,375, and the Act of Dec. 29, 1941, Pub. L. No. 77389, Chap 641, 55
Stat. 875, codified in 31 U.S.C. 5 3521 and 00 3325, 3528 (19821,respectively), no similar authority or
requirement exists with respect to certifying offrcers in the legislative or judicial branches.

Appropriations/Financial              Management
Accountable Officers
W Certifying officers
n n Liability
W W n Legislative/judicial     personnel
Appropriations/Financial              Management
Accountable Officers
W Disbursing offhers
W 4 Liability
W n n Legislative/judicial     personnel
The duties and liabilities of executive branch disbursing and certifying officers were generally de-
fmed by the Act of Dec. 29, 1941, Pub. L. No. 77-389, chap. 641, 55 Stat. 875, codified in 31 U.S.C.
8 3325, 3528. However, that act does not apply to disbursing or certifying offkers in the legislative
or judicial branches.




Page 3                                                                    Digests-February       1990
Appropriations/Financial             Management                                                ,
Accountable Officers
n Certifying officers
W n Liability
n E H Legisiative/judicial    personnel
Appropriations/Financial             Management
Accountable Officers
W Disbursing officers
0 W Liability
W n n Legislative/judicial    personnel
Agencies have discretionary authority to include in their regulations provisions which impose
varying degrees of financial liability upon their employees for losses suffered by the government
as the result of the employee’s negligence or errors in judgment while carrying out his or her
official duties. Such regulations become terms of the employees’ employment contract.

Appropriations/Financial             Management
Accountable Officers
W Certifying officers
W H Appointment
W I W GAO authority
The Directors of GAO’s GGD/Claims Group and General Services & Controller were advised that:
(1) GAO may have its own certifying officers (both for the preparation of internal administrative
vouchers and for the preparation of settlement certificates used to certify payments from the
Judgment Fund, 31 U.S.C. $1304 (1982), as amended. (2) Unless GAO specifically provides other-
wise in its administrative regulations, GAO’s certifying officers are not financially liable for any
losses the government may incur as the result of any erroneous certifications made by them. (3) If
GAO decides to administratively impose some degree of financial liability upon its certifying offi-
cers, it may also provide a mechanism to relieve those employees from that liability when justified
by the facts and circumstances.

B-237146, February 23,1990***
Appropriations/Financial Management
Budget Process
H Funding
H n Construction contracts
In overseeing construction of the Federal Triangle Development Project, The Pennsylvania
Avenue Development Corporation may have its construction consultants’ fees amortized as a cost
of construction rather than as an expense of the Corporation because the funds transferred to the
Corporation under the Federal Triangle Development Act were intended to cover startup costs.
The Corporation formally notified the required congressional committees of its plan to amortise
these costs as a cost of construction and the committees did not object to this arrangement.

B-237395, February 23,199O
Appropriations/Financial Management
Judgment Payments
W Approval
W n Certifying officers
W n n Elimination
L&.er advises the Treasury Department that its past practice of certifying judgment fund pay-
ments was not required by statute, and GAO would not object to its elimination. Since 31 U.S.C.

Page 4                                                                  Digests-February       1990
     .


0 1324 specifically conditions payment from the fund upon certification by GAO, there is ample
authority for such payments to be disbursed upon GAO’s certification alone.

B-235727, February 28,199O
AmwoDriationdFinancial   Management
Appropriation Availability
W Purpose availability
n W Specific purpose restrictions
W E n Personal expenses/furnishings
The National Park Service may not expend its appropriations to reimburse federal employees who
paid a fee to obtain state pesticide application licenses, because such fees are a personal expense to
the employees incident to a condition of employment.




Page 5                                                                    Digests-February       1990
Civilian Personnel


B-238121, February 1,199O
Civilian Personnel
Relocation
B Residence transaction     expenses
l n Inspection fees
n n n Reimbursement
Civilian Personnel
Relocation
n Residence transaction expenses
n H Miscellaneous expenses
n n H Reimbursement
Thk 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-234695, February 2,1990***
Civilian Personnel
Relocation
n Temporary quarters
n n Actual subsistence expenses
n W n Spouses
n H n n Eligibility
An agency may pay a civilian employee’s claim for temporary quarters subsistence expenses for
her spouse incident to her transfer, even though the authorization is issued retroactively by
amendment to the employee’s order, and even though the spouse is a member of the uniformed
services who is also being transferred, provided reimbursement would not result in the couple re-
ceiving a duplication of payments for the same purpose.

B-237640, February 6,199O
Civilian Personnel
Relocation
n Household goods
n 1 Temporary storage
l n n Expenses
n H n H Weight certification
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-February       1990
     .



B-232489.2, February 8,199O
Civilian Personnel
Relocation
W Overseas personnel
n W Return travel
W W n Eligibility
On reconsideration, our prior decision limiting reimbursement of an employee’s travel and trans-
portation expenses to the constructive cost of returning to his residence, rather than reimbursing
him for the actual costs he incurred in returning to another location, is affirmed.

B-234288, February 8,199O
Civilian Personnel
Relocation
W Residence transaction expenses
n n Loan origination fees
W n W Reimbursement
W H W n Amount determination
Under a revision to the Federal Travel Regulations, para. 2-6.2d(l)(b) (Supp. 26, effective Oct. 1,
1987), an employee to be reimbursed for a loan origination fee in excess of 1 percent of the loan
amount must show by clear and convincing evidence, including an itemization of the lender’s ad-
ministrative charges, that the fee does not include prepaid interest, points or a mortgage discount.
In addition, the employee must show that the fee amount does not exceed the amount customary
in the locality of the residence.

B-236769, February 8,199O
Civilian Personnel
Relocation
W Residence transaction expenses
n n Reimbursement
H n n Eligibility
n W H n Property titles
A transferred employee who sold a residence at her old duty station which she owned jointly with
her nondependent sister may be reimbursed only one-half of real estate expenses since nondepen-
dent sister does not qualify under the $Federal Travel Regulations as member of the employee’s
“immediate family” for purposes of real estate expense reimbursement.

B-231927.2. February 12.1990
Civilian Personnel
Compensation
n Compensation retention
n n Eligibility
An employee, who exercised his reemployment rights under 10 U.S.C. 0 1586 (19821,accepted a de-
motion and returned from overseas to his prior position in Hawaii. Upon reconsideration, he is
entitled to additional compensation since the agency set his rate of “basic pay” at less than that to
which he would have been entitled if he had not been assigned to duty outside the United States.
The term “basic pay” includes the special rate of pay he received under 5 U.S.C. $5303 before his
overseas assignment. Decision Yukio Fujikawu, B-231927, Feb. 3,1989, is overruled.

Page 7                                                                   Digests-February      1990
B-236651, February 12,199O                                                                   c
Civilian Personnel
Relocation
W Expenses
W W Reimbursement
W W W Eligibility
W W W W Personal convenience
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-237358. February 12.1990
Civilian Personnel
Travel
W Temporary duty
W W Travel expenses
W W W Return travel
W W W W Reimbursement
This summary letter decision addresses well established rules which have been discussed in previ-
ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to
decisions indexed under the above listed index entry.

B-235846, February 14,199O
Civilian Personnel
Travel
W Overseas allowances
W W Educational travel
W W W Dependents
W W W W Alternate destinations
Civilian Personnel
Travel
W Overseas allowances
W W Tour renewal travel
W W W Dependents
n W W W Alternate destinations
The Panama Canal Commission may fund educational and tour renewal travel to an alternate
location for dependents of U.S. citizen employees of the Commission who are in the United States
for undergraduate studies. These dependents need not return to Panama during a period in which
U.S. citizens are warned not to travel to Panama.




Page 8                                                                 Digests-February      1990
    .


B-236836, February 14,199O
Civilian Personnel
Leaves Of Absence
n Sick Leave
n n Charging
W W W Administrative     discretion
This summary letter decision addresses well established rules which have been discussed in previ-
ous Comptroller General decisions. To locate substantive decisions addressing thii issue, refer to
decisions indexed under the above listed index entry.

B-231085, February 15,199O
Civilian Personnel
Relocation
W Residence transaction expenses
n W Reimbursement
n W W Eligibility
W W n 4 Residency
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-229184, February 16,1990***
Civilian Personnel
Relocation
n Taxes
W W Allowances
n W W Eligibility
Due to the reimbursement of his relocation expenses, a transferred employee’s adjusted gross
income exceeded the maximum allowable for taking a deduction for a contribution to an Individ-
ual Retirement Account (IRA) on a jointly fded tax return. He indicates that the loss of the IRA
deduction increased his tax liability by $300, and he seeks an additional amount of relocation
income tax (RIT) allowance to compensate him for this loss. Although a RIT allowance is intended
to reimburse an employee for substantially all of the increased taxes he incurs due to the expenses
of relocation that he is reimbursed, the applicable regulations provide that the allowance is not to
be adjusted to accommodate an employee’s unique circumstances. Payment of an additional RIT
allowance in these circumstances is not authorized.

B-234619, February 16,1990***
Civilian Personnel
Travel
W Overseas travel
W n Travel modes
n W W Domestic sources
n W n n Air carriers
Under travel arrangements made by his agency, a U.S. Information Agency employee traveled
from Costa Rica to Greece on foreign air carriers, although under an alternate routing he could
have traveled part of the way on a U.S. carrier. The employee should not be assessed a penalty for
violating the Fly America Act, 49 U.S.C. App. 8 151’7,because he is an employee of an agency cov-
ered by an exception to the act, 49 U.S.C. App. 5 1518, for travel between points outside the United

Page 9                                                                  Digests-February      1990
States. Although it is within the agency’s discretion to limit use of the exception, applicable
agency regulations do not make the exception inapplicable to this travel.

Civilian Personnel
Travel
W Overseas travel
W n Travel modes
n n n Domestic sources
W W W n Air carriers
A U.S. Information Agency employee being transferred from California to Greece was required to
stop in Washington, D.C., for ‘7 days of consultation. He was then routed by his agency on a U.S.
air carrier from Washington, D.C., to Frankfurt, Germany, and by foreign carrier on to Greece,
because U.S. carrier service for the entire distance was not available on the day he traveled, al-
though it was available 5 days a week. The Comptroller General’s Fly America Guidelines do not
specifically require a delay in beginning travel in these circumstances. The Foreign Affairs
Manual provides generally that scheduling the use of U.S. carriers is expected for transfer travel
or when the traveler has flexibility. However, this general policy statement does not support a
penalty against the employee in this case since the agency scheduled his travel and apparently
concluded that the travel could not be delayed.

B-234876.2, February 16,199O
Civilian Personnel

n Retroactive compensation
W W Promotion
n n W Discretionary authority
W W n n Violation
Employee claims entitlement to a pay adjustment under 5 U.S.C. $53330~) and agency regulations,
contending that applicable provision of those regulations (Civilian Manpower Management In-
struction 531.53, para. S3-2c(l)), which uses the word “will” establishes a mandatory agency
policy. The claim is denied. The word “will” used in the phrase “will be adjusted when justified,”
does not mandate a pay adjustment. The words “when justified” modify the word “will” and estab
lish that the agency policy is discretionary. Since we find no error or abuse of discretion in agen-
cy’s action, there is no basis to adjust the employee’s pay rate.

B-236321. Februars 16.1990
Civilian Personnel
Relocation
W Expenses
n H Reimbursement
W H n Eligibility
n n n W Personal convenience
Where an employee whose position was abolished declined transfer offer by her agency but instead
transferred to another agency of her choice, agency’s determination that the transfer was primari-
ly for then convenience or benefit of the employee, thereby precluding reimbursement of reloca-
tion expenses, was not arbitrary or clearly erroneous.




Page 10                                                                 Digests-February       1990
    .


B-227534.3, February 21,199O
Civilian Personnel
Relocation
n Household goods
n n Shipment
n n n Restrictions
n n n n Privately-owned vehicles
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-238023, February 22,1990
Civilian Personnel
Relocation
n Residence transaction expenses
n n Loan origination fees
n n n Reimbursement
n n n n 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-235328, February 23,199O
Civilian Personnel
Relocation
n Residence transaction expenses
n n Taxes
n n n Reimbursement
n n n n Eligibility
Employee contends that his own alternative method of calculating the Relocation Income Tax al-
lowance (RIT allowance) is better than the method prescribed by General Services Administra-
tion’s (GSA’s) regulations. His claim for additional reimbursement is denied since he has not dem-
onstrated either that the regulations are inconsistent with the statutory authority or that these
regulations are arbitrary or unreasonable on their face.

B-236516. Februars 23.1990***
Civilian Personnel
Relocation
n Residence transaction expenses
n n Reimbursement
n n n Eligibility
An employee who is transferred back to his former duty station is entitled to only those real
estate expenses which he incurred prior to notice of the retransfer and those which cannot be
avoided. Warren L. Shipp, 59 Gomp. Gen. 502 (19801,amplified.



Page 11                                                                Digests-February      1990
B-238038. Februarv 23,199O
Civilian Personnel
Relocation
n Residence transaction expenses
W W Loan origination fees
n n W Reimbursement
W W H 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-238461, February 23,199O
Civilian Personnel
Compensation
H Retroactive compensation
W H Eligibility
H n q Court decisions
n q n W GAO review
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-229067.2, February 28,199O
Civilian Personnel
Compensation
n Overtime
W W Eligibility
W n W Travel time
Employee was required to perform temporary duty at various refineries 2 or 3 days in advance of
ships’ estimated arrivals. This need to perform duties at various times with advance notice was an
administratively controllable event by either the agency or the employee, and therefore her travel
outside of normal hours is not compensable as overtime under 5 U.S.C. $5542(b)(2)(B)(iv).




Page 12                                                                Digests-February      1990
     .



Military                  Personnel


B-220860, February 2,1990***
Military Personnel
Pay
n Retirement pay
n n Suspension
n n W Foreign employment
In 65 Comp. Gen. 382 (19861,we held that a retired U.S. Marine Corps officer, ostensibly employed
by a U.S. corporation which furnished services to the Royal Saudi Naval Forces (RSNF), was actu-
ally an employee of the Saudi Arabian government and, as such, was required to obtain consent
under 3’7 U.S.C. 0 908 before payments of his military retired pay could be resumed. Arguments
submitted in support of a request for reconsideration of this decision do not change our conclusion
that the RSNF had the right to control, supervise and direct the work of the retired officer, the
key elements in our determination that he was employed by the foreign government. Accordingly,
our previous decision is affirmed.

B-234695, February 2,1990***
Military Personnel
Relocation
n Temporary quarters
H H Actual expenses
n W n Spouses
n n n n Eligibility
An agency may pay a civilian employee’s claim for temporary quarters subsistence expenses for
her spouse incident to her transfer, even though the authorization is issued retroactively by
amendment to the employee’s order, and even though the spouse is a member of the uniformed
services who is also being transferred, provided reimbursement would not result in the couple re-
ceiving a duplication of payments for the same purpose.

B-236756, February 5,1990***
Military Personnel
Pay
n   Retirement pay
n   H Overpayments
H   n n Debt collection
n   n n n Waiver
A retired member of the Coast Guard was informed that he was being paid erroneously and he
repaid the amounts due to the Coast Guard; however, the erroneous payments continued following
the notification and repayment. The member is not without fault since he should have expected
the monthly payments to change and he should have made inquiries of the proper officials when
the payments were not reduced. In such circumstances waiver of his debt may not be granted
under 10 U.S.C. 5 2774.

Page 13                                                                 Digests-February      1990
Military     Personnel                                                                         f
Pay
n   Retirement pay
n   H Overpayments
n   n n Debt collection
n   n n n Set-off
Collection of a debt under 37 USC. $21007(c), which provides that two thirds of monthly pay may
be deducted from members of the uniformed service to repay a debt, rather than 5 U.S.C. $5514
which limits collection to 15 percent, is appropriate where legislation amending 37 U.S.C. 8 1007(c)
was enacted subsequent to legislation amending 5 U.S.C. 0 5514.

B-235158, February 6,199O
Military Personnel
Pay
n   Overpayments
n   n Error detection
l   n n Debt collection
n   n n g Waiver
A former Navy member’s request for waiver of his debt to the United States arising out of an
overpayment of pay for unused leave entitlement is granted. The member questioned the disburs-
ing clerk and the disbursing clerk’s supervisor and became convinced that the payment was cor-
rect. He therefore was without fault in accepting the erroneous payment.

B-235159. February 7.1990
Military Personnel
Pay
m Dual compensation restrictions
n n Overpayments
n n H Debt collection
n n H n Waiver
Military     Personnel
Pay
n   Retirement pay
n   w Overpayments
n   n n Debt collection
n   n n n Waiver
A retired member who accepted employment with the Veterans Administration and then received
overpayments of retired pay in violation of the Dual Compensation Act may not have the overpay-
ments waived, since he had reason to know that the payments were erroneous, the basis of the
error, and that the problem was in the process of being corrected.




Page 14                                                                 Digests-February      1990
      .


B-233379. Februarv 9.1990
Military Personnel
Pay
n Survivor benefits
n n Annuity payments
n n n Eligibility
When a member elects coverage under the Survivor Benefit Plan @BP) for his spouse and child,
the child may not receive the annuity unless the widow becomes ineligible to receive the annuity
under 10 U.S.C. 0 145003).Since a widow of two members cannot receive two SBP annuities but
must choose one of them, she becomes ineligible to receive the other. Therefore, a dependent child
may receive an annuity if the child is covered under the annuity not chosen by the widow.

B-234426, February 23,199O
Militarv Personnel
Pay
n   Overpayments
n   n Error detection
n   n n Debt collection
n   n n n Waiver
A debt arising from the unearned portion of a selective reenlistment bonus does not arise out of
an “erroneous payment” and therefore is not subject to consideration for waiver by the Comptrol-
ler General under 10 U.S.C. $2774.

B-235837, February 23,199O
Military Personnel
Pay
n   Retirement pay
n   n Amount determination
n   n n Computation
n   n n n Effective dates
A Navy member who was transferred to the Fleet Reserve in 1976, and subsequently retired in
1983 at grade E-6 with 30 years of service, is not entitled to advancement on the retied list to
grade E-7, the highest grade at which he had served, since the statutory authority for such ad-
vancement applies only to retirements beginning in December 1987.




Page 15                                                                Digests-February      1990
Miscellaneous Topics


B-221129.2, February 23,199O
Miscellaneous Topics
Environment/Energy/Natural          Resources
n Environmental protection
n n Air quality
n n n Standards
n n n n Enforcement
While section 112 of the Clean Air Act, 42 U.S.C. 9 7412, authorizes the Environmental Protection
Agency to take certain specified actions to regulate emissions of hazardous air pollutants, it gener-
ally does not authorize the agency to implement the National Clean Air Coalition’s recommenda-
tions (Le., requiring hazard assessments and accident prevention standards) for regulating the acci-
dental release of chemical air pollutants.

B-237146. February 23.1990***
Miscellaneous Topics
Federal Administrative/Legislative       Matters
n Government corporations
n n Construction contracts
n n n Funding
In overseeing construction of the Federal Triangle Development Project, The Pennsylvania
Avenue Development Corporation may have its construction consultants’ fees amortized as a cost
of construction rather than as an expense of the Corporation because the funds transferred to the
Corporation under the Federal Triangle Development Act were intended to cover start-up costs.
The Corporation formally notified the required congressional committees of its plan to amortize
these costs as a cost of construction and the committees did not object to this arrangement.




Page 16                                                                  Digests-February       1990
Procurement


B-237029. February 1.1990                                                          90-l CPD 134
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation      improprieties
Allegation that proposal was rejected as technically unacceptable due to certain radiological proce-
dures contained in the solicitation which were unduly restrictive and overstated the contracting
agency’s minimum needs is untimely where the protester did not file its protest until after the
award, since the alleged impropriety was apparent from the face of the solicitation.

Procurement
Competitive Negotiation
n Best/final offers
n n Technical acceptability
n n n Negative determination
n n n n Propriety
Contracting agency reasonably determined that protester’s proposal was technically unacceptable
where protester was twice advised of certain deficiencies in its proposal and failed to correct these
deficiencies in its second best and final offer, since the protester’s protest merely reflects its dis-
agreement with the contracting agency’s evaluation.

B-237164, February 1,199O                                                          90-l CPD 135
Procurement
Specifications
n Minimum needs standards
n n Competitive restrictions
n n n Justification
n q n n Sufficiency
Solicitation requirement for security clearance at time of contract award does not unduly restrict
competition where contract performance will involve classified material, and successful completion
of the contract would be risked if the successful contractor’s personnel were not required to have
clearance at that time.




Page 17                                                                   Digests-February       1990
B-237181, February 1,199O                                                         90-l CPD 136
Procurement
Competitive Negotiation
n Contract awards
n n Administrative discretion
n n n Cost/technical tradeoffs
n n n n Technical superiority
Where request for proposals provided that the lowest priced offeror would not necessarily receive
award, and that the award would be based on the specific combination of technical merit and cost
which is most advantageous to the government, agency properly awarded to higher-rated, higher
priced offeror where agency reasonably determined that the technical advantage associated with
higher-rated proposal outweighed the price premium.

Procurement
Competitive Negotiation
n Offers
n n Cost realism
n n n Evaluation
n n n n Administrative discretion
Protest against failure to conduct cost analysis using certified cost or pricing data is denied where
adequate price competition was obtained and agency did conduct price analysis which showed that
proposed price is reasonable in comparison with current or recent prices for the same or substan-
tially the same items.

B-237207, February 1,199O                                                        90-l CPD 137
Procurement
Sealed Bidding
n Low Bids
n n Error correction
n n n Price adjustments
n n n n Propriety
Agency determination allowing a bidder to correct an alleged mistake in its apparent low bid prior
to award was proper where the bidder presented clear and convincing evidence establishing both
the existence of its mistake and its intended bid price, and the corrected bid would remain low by
approximately 6 percent.

B-237300, February 1,199O                                                        90-l CPD 138
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation     improprieties
Protest that descriptive literature requirement in solicitation was not sufficiently specific fled
after protester’s bid was rejected for failure to submit such literature is dismissed as untimely
because General Accounting Office’s Bid Protest Regulations require that protests of alleged solici-
tation improprieties be filed before bid opening.

Page 18                                                                  Digests-February      1990
    B&237407, February 1,199O                                                       90-l CPD 139
    Procurement
    Competitive Negotiation
    W Contract awards
    n n Propriety
    W W n Brand name/equal specifications
    n n H n Equivalent products
    General Accounting Office will not disturb the contracting agency’s determination that the award-
    ee’s boring and milling machine complies with specification requirement, where the awardee’s
    offer specifically stated that the offered equipment would comply with the specification in ques-
    tion, and commercial literature included with the awardee’s offer indicated that the required fea-
    ture meeting the specification was an optional item commercially available for the offered model.

    B-237411, February 1,199O                                                       90-l CPD 140
    Procurement
    Competitive Negotiation
    n Requests for proposals
    W W Cancellation
    W W H Justification
    W n W W GAO review
    Procurement
    Noncompetitive Negotiation
    n Use
    n n Justification
    W n W Urgent needs
    Contracting agency’s decision to cancel a request for proposals and to place a delivery order for
I   part of the canceled requirement under an existing contract is reasonable where, in view of unex-
    pected deterioration of supply stock, only one source can meet the agency’s urgent need for the
    item.

    B-238347, February 1,199O                                                       90-l CPD 141
    Procurement
    Bid Protests
    W GAO authority
    Protest against the award of concession permits for five cruiseship entries into national park is
    not for consideration under General Accounting Offrce’s bid protest function since it does not con-
    cern a procurement by a federal agency of property or services within the scope of the bid protest
    provisions of the Competition in Contracting Act of 1984.

    B-197911.3, February 2,199O
    Procurement
    Payment/Discharge
    n Shipment
    H n Carrier liability
    H W n Burden of proof
    Shipper’s 6day delay in signing delivery documents does not preclude a claim against the carrier
    for damage to household goods.

    Page 19                                                                Digests-February       1990
Procurement
Payment/Discharge
W Shipment
H H Damages
n W n Evidence sufficiency
Post-delivery movement of shipper’s household goods within his residence is not sufficient to dem-
onstrate that damage to the goods occurred after delivery.

B-235118, February 2,199O
Procurement
Payment/Discharge
W Shipment costs
W n Rate schedules
H W n Interpretation
When applicable rate publication specifically applies a minimum charge to shipments of less than
10,000 pounds that occupy a truck’s full visible capacity but is silent with respect to similar ship-
ments of 10,000 pounds or more, there is no basis to conclude that there is any minimum charge
on shipments of more than 10,000 pounds.

B-237156, February 2,199O                                                         90-l CPD 145
Procurement
Bid Protests
n GAO procedures
W W Protest timeliness
n n n Apparent solicitation      improprieties
Protest allegations that agency improperly reopened discussions, and obtained new best and fmal
offers (BAFOs) constituting an auction, are untimely when filed after award.

Procurement
Competitive Negotiation
n Discussion reopening
W W Propriety
Agency’s verbal relaxation of requirement to submit resumes for awardee without advising pro-
tester of change does not require that negotiations be reopened where, due to awardee’s higher
technical score and lower price, award decision would remain the same.

Procurement
Competitive Negotiation
W Requests for proposals
n W Amendments
H W W Notification
W H W H Contractors
Agency’s verbal relaxation of requirement to submit resumes for awardee without advising pro-
tester of change does not require that negotiations be reopened where, due to awardee’s higher
technical score and lower price, award decision would remain the same.

Page 20                                                                  Digests-February      1990
    .


Pxocurement
Competitive Negotiation
W Offers
W W Evaluation errors
W W W Personnel experience
W W W W Point ratings
Where solicitation advises offerors of the total points available for each evaluation factor but also
advises that subfactors would not be assigned points, agency reasonably evaluated each member of
offerors’ proposed staffs, consistent with stated evaluation criteria, by using a position functions
matrix to produce a percentage of the total possible points for the staffing technical factor.

B-237160.2. Februaw            2.1990                                             90-l CPD 146
Procurement
Competitive Negotiation
W Offers
W W Late submission
W W W Acceptance criteria
W W W W Government mishandling
Where solicitation incorrectly indicated place for delivery of hand-carried proposals, and agency
personnel then misdirected offeror when it attempted delivery of its proposal, government action
was the paramount cause of a hand-carried proposal’s being submitted several minutes after the
time specified in the solicitation for receipt of proposals; lateness therefore properly may be
waived and the proposal accepted for award.

B-237170, B-237173, February 2,199O                                              90-l CPD 147
Procurement
Competitive Negotiation
W Offers
W W Competitive ranges
W W W Withdrawal
Where agency erroneously advised protester that its proposals were acceptable and within the
competitive range in conducting discussions before the evaluation was completed, the protester
was not prejudiced when the agency ultimately and reasonably determined that the proposals
were unacceptable, even though the protester had not been apprised of all cited deficiencies during
the discussions, since the portions of the proposals which the protester clarified during discussions
showed its lack of understanding of the request for proposals (RFPs) requirements.

B-237202, February 2,199O                                                        90-l CPD 148
Procurement
Contract Management
W Contract administration
W W Default termination
W W W Propriety
W W W W GAO review
General Accounting Office will not consider the propriety of a contracting agency’s decision to ter-
minate a contract for default, since that is a matter for the contracting agency’s board of contract
appeals under the contract disputes clause.

Page 21                                                                  Digests-February       1990
Procurement
Contract Management
W Contract administration
W W Default termination
W W W Resolicitation
W W W W GAO review
Generally, statutes and regulations governing regular federal procurements are not strictly appli-
cable to reprocurement after default; General Accounting Office will review reprocurement only to
determine if the contracting agency’s actions were reasonable in the circumstances.

Procurement
Competitive Negotiation
W Contract awards
W W Propriety
Award of replacement contract for repair and maintenance of meat wrapping machines used in
commissaries to the second-low offeror under the original procurement after the agency terminatr
ed the original contract with the protester for default was reasonable, where: (1) urgent need for
repairs to prevent spoilage required that replacement contract be awarded immediately; (2) it was
unlikely that there would be any new offerors participating even if a new procurement were con-
ducted because only a short period of time had elapsed between first procurement and award of
replacement contract; (3) replacement contract was made at price that was approximately 9 per-
cent lower than replacement contractor’s original offer; and (4) agency reasonably concluded that
protester was not a potential source for the reprocurement contract in view of its performance
problems under the defaulted contract.

B-237248, February 2,199O                                                         90-l CPD 149
Procurement
Competitive Negotiation
W Requests for proposals
W W Terms
W W W Interpretation
Protest that procuring agency improperly determined protester’s proposal noncompliant with so-
licitation requirement is denied where protester’s interpretation of requirement is not reasonable
or consistent with solicitation as a whole.

Procurement
Competitive Negotiation
W Discussion
W W Adequacy
W W W Criteria
Agency conducted meaningful discussions where it directed protester to area in which its proposal
was noncompliant with minimum solicitation requirement; procuring agency is not required to
notify offerors of deficiencies remaining in their best and final offers or conduct successive rounds
of discussions until such deficiencies are corrected.




Page 22                                                                  Digests-February       1990
   .


B-237212, February 5,1990***
Procurement
Competitive Negotiation
W Requests for proposals
W W Terms
W W W Compliance
Protest that awardee did not meet solicitation requirement that all houses should be built facing
south is denied where protester has not shown that solicitation requirement that houses be orient
ed within 20 degrees of south, such that a major section of the roof faces within 20 degrees of
south, could reasonably be read as requiring that the front of each house must face south.

Procurement
Competitive Negotiation
W Offers
W W Designs
W W W Evaluation
W W W W Technical acceptability
Procurement
Competitive Negotiation
W Requests for proposals
W W Terms
W W W Compliance
Protest that awardee did not meet solicitation requirement that a major section of house roof face
within 20 degrees of south is denied where agency reasonably found that awardee’s proposal sub-
stantially complied with the requirement and the protester was not prejudiced by the agency’s
acceptance of the proposal.

Procurement
Bid Protests
W Moot allegation
W W GAO review
Procurement
Competitive Negotiation
W Offers
I W Designs
W W W Evaluation
W W W W Technical acceptability
Protest that awardee’s plans did not meet Uniform Federal Accessibility Standard concerning
wheelchair turning space in its bathrooms for the handicapped is denied where agency architect
concluded that awardee met the requirement and our review of the requirement does not provide
us with any basis to question that determination.




Page 23                                                                Digests-February      1990
                                                                                                .


B-237264. February 5,1990***                                                                        E
Procurement
Socio-Economic Policies
W Small businesses
W W Disadvantaged business set-asides
W W W Preferences
W W W W Computation
Protest against the application of the small disadvantaged business evaluation preference to only
the cost adjustment factors in a procurement for natural gas is denied where the method em-
ployed constitutes a reasonable application by the Air Force of the 10 percent preference called for
under its regulations, to a contract which incorporates index pricing, by limiting the preference to
those portions of the contract which are actually priced by the offerors, and for which the amount
paid does not fluctuate.

B-237299. February 5,199O                                                        90-l CPD 152
Procurement
Sealed Bidding
W Bids
W W Responsiveness
W W W Descriptive literature
W W W W Adequacy
Bid was properly rejected as nonresponsive where descriptive literature was required to establish
conformance to the solicitation’s specifications, and protester not only failed to submit all of the
required descriptive literature, but also submitted literature which indicated that its offered prod-
uct did not conform to the specifications.

Procurement
Bid Protests
W Allegation substantiation
W W Lacking
W W W GAO review
Procurement
Sealed Bidding
W Bids
W W Evaluation
W W W Discussion
W W W W Propriety
Where protester alleges that a firm that evaluated bids for the contracting agency, under contract,
engaged in discussions with other bidders in order to disqualify the protester’s bid, but fails to
provide any evidence in support of its allegation, there is no basis for concluding that the protest-
er’s bid was improperly evaluated.




Page 24                                                                  Digests-February       1990
   .


B-237369, February 5,199O                                                         90-l CPD 153
Procurement
Sealed Bidding
W Bids
W W Responsiveness
W W W Certification
W q W W Ambiguity
Where a bidder certifies in a total small business set-aside both that it will furnish only end items
manufactured or produced by domestic small business concerns, and, in its Buy American certifi-
cate, that it would supply non-domestic end products, its bid is nonresponsive since it is not clear
from the bid documents whether the bidder will comply with the set-aside requirement to supply
only items manufactured or produced in the United States.

Procurement
Socio-Economic Policies
W Small businesses
W W Competency certification
W W W Applicability
Certification concerning a bidder’s obligation to furnish products manufactured or produced by a
domestic small business is a matter of responsiveness and is not an issue to be referred to the
Small Business Administration since it does not concern a bidder’s representation that it is a
small business.

B-237680, February 5,199O                                                         90-l CPD 154
Procurement
Sealed Bidding
W Invitations for bids
W W Cancellation
W W W Justification
W W q W Price reasonableness
Contracting officer’s decision to cancel invitation for bids (IFB) based on unreasonableness of bid
prices was proper where low bid exceeded the government estimate by ‘71 percent and there is no
showing that the decision to cancel was unreasonable or based on bad faith on the part of con-
tracting officials.

Procurement
Sealed Bidding
W Invitations for bids
W W Cancellation
W W W Resolicitation
W W W W Propriety
Where cancellation of solicitation is in accord with governing legal requirements, the agency does
not create an impermissable auction on resolicitation.




Page 25                                                                  Digests-February       1990
                                                                                             .


B-236928.2. Februarv 6.1990                                                     90-l CPD 155
Procurement
Bid Protests
I GAO procedures
W W Protest timeliness
W W W Apparent solicitation     improprieties
Protest that an amendment to the solicitation should not have been issued and that discussions
should have been conducted is untimely when not filed prior to the closing date for revised propos-
als.

Procurement
Competitive Negotiation
W Best/final offers
W W Price disclosure
W W W Allegation substantiation
Protest that price disclosure was improper based solely on a price reduction in the awardee’s best
and final offer is denied.

Procurement
Contractor Qualification
W Responsibility
W W Contracting officer findings
W W W Pre-award surveys
W W W W Administrative discretion
Assertion that the agency did not conduct a proper preaward survey of the awardee is denied,
since the decision to survey is within the discretion of the contracting offker.

B-236956.3, February 7,199O                                                     90-l CPD 156
Procurement
Contract Management
W Contract administration
W W Convenience termination
W W W Administrative determination
W W W W GAO review
Termination of requirements contract for the convenience of the government was not improper
where shortly after award agency discovered that solicitation was defective because it failed to
provide estimates for any of the specific services to be performed such that the agency could not
determine which bid represented the lowest cost to the government.




Page 26                                                                 Digests-February      1990
Bd37116, February 7,1990***                                                      90-l CPD 157
Procurement
Competitive Negotiation
W Best/final offers
W n Price disclosure
H H n Allegation substantiation
Procurement
Competitive Negotiation
n Best/final offers
n n Price disclosure
n W n Contractors
n H n n Competitive restrictions
Agency may reject proposal of offeror who takes exception in its best and final offer to Certificate
of Independent Price Determination and explains the circumstances of an exchange of pricing in-
formation with another offeror, where the agency determines the exchange had the effect of re-
stricting competition.

B-237288, February 7,199O                                                        90-l CPD 158
Procurement
Sealed Bidding
H Bids
W H Modification
n n n Submission methods
W W n n Procedural defects
Bid modification written on outside of bid envelope does not render bid nonresponsive where bid
complied with all material requirements of the solicitation.

Procurement
Sealed Bidding
H Bids
n n Modification
H n W Interpretation
H W n n Intent
Contracting agency may consider a downward bid modification written on the bid envelope       where
agency’s procedures for inspecting bid documents are sufkiently     thorough that agency       would
have discovered the notation on the bid envelope regardless of whether the bidder called it    to the
agency’s attention, and it was clear that the modification was not an internal note since     it was
signed by the individual responsible for preparing the bid.

Procurement
Sealed Bidding
n Bids
n n Modification
n n H Interpretation
n n W n Intent
Where bid modification is written on outside of bid envelope and is signed with the initials of the
person who signed the bid, the contracting agency reasonably assumed that the person whose ini-
tials accompanied the modification signed the modification himself, not through an agent.

Page 21                                                                 Digests-February       1990
                                                                                              .


B-237515, February 7,1990***                                                   90-l CPD 169
Procurement
Competitive Negotiation
n Requests for proposals
H W Terms
n n W Service contracts
I II W n Applicability
Procurement
Special Procurement Methods/Categories
q Service contracts
m H Terms
Contracting officer properly determined-consistent with the view of the Department of Labor, the
agency charged with implementing the Walsh-Healey Act-that the Walsh-Healey Act does not
apply to contract for rental of personal property since such a contract does not involve “furnish-
ing” equipment within the meaning of the act. 19 Comp. Gen. 486 (19391,affirmed.

Procurement
Sealed Bidding
n Invitations for bids
n 4 Post-bid opening cancellation
n W n Justification
n W W n Competition enhancement
Determination after bid opening that Walsh-Healey Act does not apply to contract for rental of
personal property, despite inclusion of Walsh-Healey requirements in the invitation for bids QFB),
does not require cancellation of IFB, since there is no indication that competition was restricted
due to inclusion of Walsh-Healey requirements and no bidders were prejudiced by agency’s subse-
quent determination to waive Walsh-Healey requirements.

B-237572, February 7,199O                                                      90-l CPD 160
Procurement
Socio-Economic Policies
n Small businesses
n n Disadvantaged business set-asides
n n H Preferences
n W n n Computation
General Accounting Office denies protest concerning the proper method of applying the small dis-
advantaged business preference to procurements of natural gas where the identical issue was re-
solved in a recent and previous protest involving the same agency and the same type of procure-
ment.




Page 28                                                                Digests-February      1990
   .


E-237616, February 7,199O                                                     90-l CPD 161
Procurement
Sealed Bidding
n Bids
n n Responsiveness
q n n Determination criteria
Procurement
Sealed Bidding
n Invitations for bids
n q Terms
n n n Interpretation
n n n n Alternate bids
Bidder’s failure to bid on alternate item which was not selected for award by procuring activity
does not render bid nonresponsive.

B-237892, February 7,199O
Procurement
Payment/Discharge
n Federal procurement regulations/laws
n n Amendments
n n n Personnel
n n n n Fringe benefits
General Accounting Offke (GAO) is in favor of a change proposed in Federal Acquisition Regula-
tion (FAR) case No. 39-70 that would amend FAR section 31.205-6(m) to provide that the costs of
postretirement benefits other than pensions are allowable only if paid currently. GAO has no ob-
jection to other changes relating to fringe benefits proposed in FAR case 89-70.

Procurement
Payment/Discharge
n Federal procurement regulations/laws
n n Revision
n n n Payment procedures
n BBBTaxes
General Accounting Office has no objection to Federal Acquisition Regulations (FAR) case No.
89-73, a proposal to revise various provisions in FAR Parts 29 and 52 concerning dollar values
relating to taxes.

B-237157.2, February 8,199O                                                   90-l CPD 162
Procurement
Sealed Bidding
n Low bids
n n Error correction
n n n Price adjustments
n n n n Propriety
Procuring agency properly denied protester’s request for upward correction of its low bid because
of an error in its subcontractor quote where the protester established that a mistake had been
made but did not submit clear and convincing evidence of its intended bid.

Page 29                                                               Digests-February      1990
Procurement
Sealed Bidding
n Low bids
n n Error correction
n n l Price adjustments
n n n n Propriety
Agency properly rejected the protester’s bid-which may have been low because of a mistake-
where the protester first alleges that it made a mistake and then seeks to abandon or waive the
claim of mistake, and it is not clear that the bid would have been low regardless of any mistake.

B-237166, B-237166.2, February 8,199O                                          90-l CPD 163
Procurement
Sealed Bidding
n Two-step sealed bidding
n n Offers
n n n Rejection
n n n n Propriety
Protester’s proposal under modified two-step procurement was properly rejected as technically
noncompliant where protester was given notice of potential areas where its proposal did not
comply with essential requirements of the solicitation and failed to correct those areas.

Procurement
Sealed Bidding
n Two-step sealed bidding
n n Offers
n n B Competitive ranges
n n B n Exclusion
The General Accounting Office will not question the exclusion of the protester’s proposal as non-
compliant where the proposal was reasonably found deficient with respect to essential require-
ments of the solicitation.

B-237183, February 8,199O                                                      90-l CPD 164
Procurement
Competitive Negotiation
n Discussion
n n Adequacy
n n n Criteria
Protest is sustained where agency failed to discuss with offerors spare parts requirement con-
tained in RFP for facsimile machines and related items in spite of evidence in the proposals that
the offerors had widely divergent views as to what was required which was reflected in some offer-
ors pricing requirement 40 times higher than awardee.




Page 30                                                                Digests-February      1990
E-238279, February 8,199O                                                      90-l CPD 165
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation     improprieties
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Unapparent solicitation     improprieties
Even though contracting officials erroneously advised the protester that an evaluation preference
for small disadvantaged business (SDB) concerns would be applicable to a forthcoming procure-
ment, where the solicitation contained no SDB provision because the procurement was exempted
from the requirement by regulation, a protest of the lack of an SDB preference is untimely when
filed after the bid opening date.

B-238460, February 8,199O                                                      90-l CPD 166
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
Protest filed more than 10 days after protester was orally informed that its agency-level protest
had been denied is untimely; protester may not delay fling its protest until it has received the
agency decision in writing.

B-233740.5, February 9,199O                                                    90-l CPD 167
Procurement
Sealed Bidding
n Bids
n n Responsiveness
n n n Price omission
n n n n Options
Bid that fails to include prices for option years is nonresponsive and must be rejected where the
invitation requires such prices and provides that they will be evaluated for award.

B-237194, February 9,199O                                                      90-l CPD 168
Procurement
Sealed Bidding
n Bid guarantees
n n Sureties
n n n Acceptability
Agency may determine individual surety unacceptable, without discussions, where the agency rea-
sonably determines that the surety’s claimed equity in jointly-owned real estate, which the surety
listed on his SF-28, Affidavit of Individual Surety, is not an asset that should be considered in
determining the surety’s net worth and, absent this asset or the protester’s identification of any

                                                                       Digests-February      1990
other acceptable assets, the surety has insufficient net worth to cover the potential bond obliga-
tions.                                                                                          \

B-237208, February 9,199O                                                        90-l CPD 169
Procurement
Competitive Negotiation
n Contract awards
n n Administratipe discretion
n n n Cost/technical tradeoffs
n n n n Technical superiority
Award to offeror having higher-cost, technically excellent proposal under request for proposals
which gave greater weight to technical merit compared with cost advantage is justified where con-
tracting agency reasonably determined that acceptance of proposal was worth the higher cost in-
volved.

Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Personnel experience
It was not unreasonable for the contracting agency to consider personnel experience in evaluating
proposals under “experience of the offeror” evaluation standard since: (1) the standard did not con-
tain a statement limiting evaluation to institutional (offeror) experience; (2) the evaluation stand-
ard contained two substandards which could arguably be fulfilled by individual employees; and (3)
only one aspect of one key employee was to be elsewhere evaluated under the request for propos-
als.

Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Personnel
Since proposed Project Manager director of successful offeror provided unequivocal offer to be em-
ployed by successful offeror at a stated hourly labor hour cost figure, contracting agency properly
evaluated proposed individual as being committed to offeror.

Procurement
Competitive Negotiation
n Offers
n n Evaluation
q n B Personnel experience
Request for proposals clause which required proposed Project Manager for contract to have per-
formed relevant projects “in the past year, on a full-time basis” reasonably conveyed contracting
agency’s intent that Project Manager has worked on a full-tiie basis on relevant projects for at
least part of the year, but clause did not reasonably require full-time work for the entire year as
protester argues.



Page 32                                                                  Digests-February       1990
  .


Erocurement
Bid Protests
H Allegation substantiation
n W Lacking
H W n GAO review
Allegation that contracting agency improperly disclosed names of incumbent contractor’s person-
nel to competitor for recruitment purpose is denied where it is speculative, at best. Contracting
agency denies disclosing incumbent’s staff names; moreover, there are many ways for contracting
companies to identify individuals for recruitment purposes.

Procurement
Competitive Negotiation
n Contracting officer duties
q n Contract award notification
Failure of contracting agency to give written, preaward notice of award is not significant where
agency did give oral, pre-award notice of award.

Procurement
Contract Management
W Contract administration
n W GAO review
Successful offeror’s difficulties in staffing contract after award relate to contract administration
and are not for consideration under Bid Protest Regulations, 4 C.F.R. Part 21 (1989). See 4 C.F.R.
5 21.3(m)(l).

B-237328. February 9,1990***
Procurement
Socio-Economic Policies
n Small businesses
n n Disadvantaged business set-asides
W W n Eligibility
q W n W Determination
Agency properly rejected joint venture under small disadvantaged business (SDB) set-aside where
agency reasonably determined that SDB member of joint venture did not control at least 51 per-
cent of venture as evidenced by the SDB member’s lack of the financial capability to obtain neces-
sary bonds, lack of funds to handle its financial commitments, lack of experience and technical
resources to handle its portion of the contract, and the non-SDB member’s maintenance of all
record keeping for the venture.




Page 33                                                                 Digests-February       1990
                                                                                              .


B-237341, February 9,199O                                                      90-l CPD 171
Procurement
Bid Protests
W Moot allegation
W n GAO review
Procurement
Sealed Bidding
I Bids
H W Late submission
H W W Rejection
H W W H Propriety
Protest that late bid should not have been rejected is dismissed as academic where record indi-
cates that bid was not low and that protester thus would not be in line for award even if General
Accounting Office found that bid should have been accepted.

B-237364, February 9,199O                                                      90-l CPD 172
Procurement
Competitive Negotiation
W Contract awards
W W Administrative discretion
n H W Cost/technical tradeoffs
n H W n Technical superiority
Under solicitations that call for award on the basis of the best overall value to the government,
with primary consideration given to technical merit, agency source selection officials have broad
discretion to make cost/technical tradeoffs; such tradeoffs need only have a rational basis.

Procurement
Competitive Negotiation
n Offers
n H Evaluation
n W H Personnel experience
In evaluating the corporate experience of a new business, an agency may, but is not obligated to,
consider the prior related experience of a principal officer.

Procurement
Socio-Economic Policies
W Small businesses
n H Competency certification
W W n Applicability
Certificate of competency (COC) procedures do not apply where a small business firm’s offer in a
negotiated procurement is considered weak under technical evaluation factors relating to experi-
ence and past performance, since the COC program is for reviewing nonresponsibility, not the
comparative evaluation of technical proposals.




Page 34                                                               Digests-February      1990
B-237405, February 9,199O                                                        90-l CPD 173
Procurement
Competitive Negotiation
n Offers
n n Evaluation
H n 4 Royalties
n n n n Cost evaluation
Protest is denied where record supports propriety of agency’s use of alternate authorization and
consent clause in solicitation (which does not include explicit royalty or patent indemnification
requirements) where agency reasonably challenges process patent held by protester, due to rights
obtained by the government in the patented process under protester’s prior subcontract with
prime government contractor.

Procurement
Bid Protests
n Patent infringement
N N GAO review
Exclusive remedy for patent infringement is to bring an action in United States Claims Court
against government for money damages under 28 U.S.C. Q 1498 (1982).

B-237511, February 9,199O                                                         90-l CPD 174
Procurement
Sealed Bidding
n Invitations for bids
n n Amendments
n n n Materiality
An amendment which incorporates into an invitation for bids (IFB) a Federal Acquisition Regula-
tion provision detailing the order of precedence to be given in instances of conflicting contract in-
terpretations is material since it gives the government the right to reconcile conflicts which other-
wise would not be available to it and therefore changes the legal relationship between the parties.

Procurement
Sealed Bidding
W Invitations for bids
n n Amendments
n n H Acknowledgment
n n H n Responsiveness
A bidder’s failure to acknowledge with its bid a material amendment to an invitation for bids ren-
ders the bid nonresponsive.

Procurement
Sealed Bidding
H Invitations for bids
n n Amendments
n n H Acknowledgment
n n n n Waiver
Bidder’s failure to acknowledge a material amendment to a solicitation which also extended the
bid opening date may not be waived where the bid contains only the previous bid opening date

Page 35                                                                  Digests-February       1990
since the mere submission of the bid on the amended bid opening date is not sufficient to show
that bidder intended to be bound by the terms of the amendment.                             *


B-237752, February 9,199O                                                        90-l CPD 175
Procurement
Bid Protests
N GAO procedures
N N Protest timeliness
N N N lo-day rule
Procurement
Sealed Bidding
N Invitations for bids
N N Competition rights
N N N Contractors
N N N N Exclusion
Protest against nonreceipt of solicitation is dismissed as untimely where protest is filed more than
2 months after bid opening, and protester allowed 3 months to expire without inquiry concerning
whereabouts of solicitation.

B-238074, February 9,199O                                                        90-i CPD 176
Procurement
Small Purchase Method
N Contract awards
N N Propriety
N N N Contractors
N N N N Identification
General Accounting Office denies protest concerning the propriety of award to a fun under a
name which includes a phrase in addition to its corporate name where the identical issue was
resolved in a recent decision on a protest by the same protester and involving the same relevant
set of factual circumstances.

B-236687.2, February 12,199O                                                     90-l CPD 177
Procurement
Contractor Qualification
N Responsibility
N N Contracting officer findings
N N N Affirmative determination
N N N N GAO review
Protest challenging agency’s determination that awardee will be able to perform the contract by
supplying equipment conforming to the specifications involves the issue of the awardee’s responsi-
bility, the affirmative determination of which General Accounting Office will not review 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.




Page 36                                                                 Digests-February       1990
  .


B-237267, February 12,199O                                                      90-l CPD 178
Procurement
Bid Protests
N GAO procedures
N N Protest timeliness
N N N Apparent solicitation improprieties
Protest against apparent solicitation improprieties- agency inclusion of an allegedly unqualified
producer as an approved source and alleged “flaw” in specifications-is untimely when filed after
bid opening.

Procurement
Contractor Qualification
N Responsibility
n n Contracting officer findings
N N N Affirmative determination
N N N N GAO review
Protest concerning capability of bidder to manufacture product is dismissed as involving a matter
of affirmative responsibility which is not for review except in circumstances not applicable here.

Procurement
Contract Management
N Contract administration
N N Contract terms
N N N Compliance
N N N N GAO review
Whether product delivered meets contract requirements involves a matter of contract administra-
tion which is not for review under the bid protest function.

B-237342, February 12,199O                                                      90-l CPD 179
Procurement
Competitive Negotiation
N Discussion reopening
N N Propriety
N N N Best/final offers
N N N N Competitive ranges
Protest is sustained where agency discovered after award that awardee’s item was noncompliant
with solicitation requirements, and proposes to modify contract by giving awardee opportunity to
make its proposal acceptable; since agency’s intended action would constitute reopening of discus-
sions with awardee, agency is obligated to conduct discussions with all offerors in the competitive
range.




Page 37                                                                Digests-February       1990
                                                                                                                                     ‘




B - 2 3 7 3 4 7 .F e b r u a r v 1 2 .1 9 9 0                                                                 90-l C P D 1 8 8
P rocurement
C o m p e titive Negotiation
N O ffers
N N C o m p e titive r a n g e s
N N N Exclusion
N N N N Administrative discretion
Contracting a g e n c y p r o p e r l y rejected protester’s p r o p o s a l from the competitive r a n g e a s technical-
ly u n a c c e p t a b l e w h e r e the p r o p o s a l c o n t a i n e d significant technical deficiencies u n d e r the solicita-
tion’s most heavily w e i g h t e d technical evaluation factors a n d r e q u i r e d m a j o r revisions in o r d e r to
b e m a d e acceptable.

B - 2 3 7 3 5 9 .F e b r u a r y 1 2 ,1 9 9 O
P rocurement
B i d Protests
N G A O procedures
N N Protest timeliness
N N N A p p a r e n t solicitation improprieties
Protest alleging that provisions in r e q u e s t for p r o p o s a l s ( R F P ) a r e overly restrictive a n d favor a
particular offeror is untimely w h e r e the a l l e g e d R F P defects w e r e a p p a r e n t prior to the closing
d a t e for receipt of initial p r o p o s a l sbut the protest w a s not filed with either the contracting a g e n c y
o r the G e n e r a l A c c o u n t i n g O ffice until well after the closing date.

P rocurement
C o m p e titive Negotiation
N Hand-carried offers
N N Late submission
N N N Acceptance criteria
A g e n c y p r o p e r l y rejected late h a n d - c a r r i e d p r o p o s a l w h e r e the r e c o r d establishes that the protest-
e r d e l i v e r e d the p r o p o s a l to the depository r o o m after the closing time; s h o w s n o e v i d e n c e of
w r o n g f u l g o v e r n m e n t action o r advice that c a u s e d the p r o p o s a l to b e d e l i v e r e d late; a n d reflects
that the protester’s o w n actions w e r e the c a u s e of the late delivery.

B - 2 3 7 5 3 1 .F e b r u a r v 1 2 .1 9 9 0                                                                 90-l C P D 1 8 2
P rocurement
C o m p e titive Negotiation
N O ffers
N N Technical acceptability
N N N Evidence
N N N N S u b m i s s i o n tim e periods
O fferor w h o initially took exception to a n u m b e r of solicitation r e q u i r e m e n t s w a s p r o p e r l y f o u n d
technically a c c e p t a b l e w h e r e offeror explicitly withdrew all exceptions in its best a n d final offer,
except for o n e exception with respect to w h i c h the a g e n c y h a d i n c o r p o r a t e d the offeror’s p r o p o s e d
alternative into the solicitation b y a m e n d m e n t .




Page 38                                                                                            Digests-February 1 9 9 0
Erocurement
Contractor Qualification
N Responsibility
N N Contracting officer findings
N N N Affirmative determination
N N N N GAO review
Contracting agency’s affirmative determination of responsibility is not reviewed by the General
Accounting Office absent a showing of possible fraud or bad faith, or misapplication of definitive
responsibility criteria specified in the solicitation.

B-237658, February 12,199O
Procurement
Payment/Discharge
N Shipment
N N Carrier liability
N N N Burden of proof
A carrier is not responsible for damage to a shipment caused solely by the operation of natural
laws, under the exception to a carrier’s liability for damage resulting from “the inherent vice or
nature” of the item. The exception does not apply, however, simply because humidity may have
contributed to the carrier’s packing material sticking to an item of furniture’s finish during the 2.
day transit, where the carrier has not refuted the suggestion in the record that the damage was
caused by the poor quality of the packing material and/or labor, or established that there was
anything about the furniture finish that led to the problem.

B-238399. Februarv 12.1990                                                       90-l CPD 183
Procurement
Bid Protests
N GAO procedures
N N Preparation costs
There is no basis for recovery of bid preparation costs claimed in connection with canceled timber
sale where claimant has not protested the propriety of the cancellation, since costs will be award-
ed only in conjunction with decision on the merits of a protest finding improper agency action.

B-234006.2. February 13.1990                                                     90-l CPD 184
Procurement
Competitive Negotiation
N Offers
N N Evaluation
N N N Technical acceptability
Agency properly awarded contract to low, technically acceptable offeror where protester’s allega-
tion that awardee’s proposal fails to establish intent to comply with performance specifications is
not supported by record.




Page 39                                                                  Digests-February      1990
Procurement                                                                                     .
Competitive Negotiation
N Offers
N N Competitive ranges
N N N Inclusion
N N N N Administrative discretion
Agency reasonably retained higher-priced offeror in the competitive range where only two offerors
remained and acceptability of lower-priced offeror was not assured.

B-236371.2, February 13,199O                                                   90-l CPD 185
Procurement
Bid Protests
n GAO procedures
N N GAO decisions
N N N Reconsideration
Request for reconsideration is denied where protester simply reiterates arguments previously
raised and considered and raises new arguments which fail to show any error of fact or law that
would warrant reversal or modification of prior decision.

B-237254, February 13,199O
Procurement
Competitive Negotiation
N Offers
N N Competitive ranges
N N N Exclusion
N N N N Administrative discretion
General Accounting Office will not disturb an agency’s decision to exclude a protester from the
competitive range on grounds that it had no reasonable chance for award when, considering the
relative superiority of the other proposals, this determination was reasonable.

B-237276, B-237277, February 13,199O                                           90-l CPD 186
Procurement
Contractor Qualification
N Responsibility
N N Contracting officer findings
N N N Negative determination
N N N N GAO review
Whether evidence of offeror’s employees’ lack of integrity is sufficient to warrant a finding in a
particular case that a bidder is not responsible is a matter primarily for determination by the
administrative officers concerned; General Accounting Office will not question determination
where protester fails to establish that there is no reasonable basis for it.

Procurement
Contractor Qualification
N De facto debarment
N N Non-responsible contractors
Agency’s nonresponsibility determinations with respect to two prospective contracts does not
amount to de facto suspension or debarment, where the findings of nonresponsibility involved

Page 40                                                                Digests-February      1990
  .


practically contemporaneous procurements and were based on current information concerning the
piotester’s business integrity.

B-237335, February 13,199O                                                      90-l CPD 187
Procurement
Sealed Bidding
N Bids
N N Responsiveness
N N N Terms
N N N N Deviation
The award of a contract under a solicitation for sealed bids must be made on the same terms as
were offered to all bidders by the solicitation. A-bid which includes a provision requiring payment
before delivery when the delivery is delayed and which was not included in the solicitation is non-
responsive.

Procurement
Sealed Bidding
N Bids
N N Responsiveness
N N N Determination time periods
A provision included in bid which renders the bid nonresponsive cannot be cured as a mistake,
waived or deleted since a nonresponsive bid cannot be made responsive after bid opening.

Procurement
Bid Protests
N GAO procedures
N N Protest timeliness
N N N Apparent solicitation improprieties
Protest filed after bid opening and award that the terms of the solicitation were vague and ambig-
uous is untimely since a protest concerning an alleged impropriety which is apparent on the face
of a solicitation must be filed before bid opening.

B-237337, February 13,199O                                                      90-l CPD 189
Procurement
Competitive Negotiation
N Offers
N N Technical acceptability
N N N Negative determination
N N N N Prourietv
Procurement
Contractor Qualification
N Licenses
N N Determination time periods
Where solicitation required that an offeror must be an institution accredited by an institutional
accrediting body recognized by the Council on Postsecondary Education, proposal from a secondary
school which did not have the required accreditation was properly rejected as unacceptable.

Page 41                                                                Digests-February       1990
                                                                                                .


B-237412, February 13,199O                                                      90-l CPD 189
Procurement
Sealed Bidding
W Invitations for bids
n W Cancellation
H W n Justification
W n W W Price reasonableness
Procurement
Sealed Bidding
W Invitations for bids
n W Cancellation
W W n Reinstatement
n n W W Propriety
Protest challenging cancellation of invitation for bids set aside for small disadvantaged businesses
on ground that low bid exceeded fair market prices of the items being acquired by more than 10
percent is sustained where the contracting agency failed to consider pricing information contained
in a government-issued catalog of unit prices which indicated that the fair market prices of the
items were significantly higher than the agency estimated.

B-237651, February 13,199O                                                       90-l CPD 190
Procurement
Sealed Bidding
n Bids
I I Responsiveness
W W n Certification
W 4 W n Omission
Protest against proposed award of a contract to a bidder that failed to complete and sign the Pro-
curement Integrity Certificate is denied where bids were opened prior to December 1, 1989, but
award has not been made, since the requirement for the Certificate has been suspended from De-
cember 1, 1989 to November 30, 1990 and current regulatory guidance requires agencies to ignore
the Certificate in determining eligibility for award.

B-237058.2, B-237058.3, February 14,199O
Procurement
Competitive Negotiation
W Discussion reopening
n W Propriety
W n n Best/final offers
n n n W Corrective actions
Protest against agency decision to reopen discussions is denied where agency determined that pre-
vious request for revised proposals did not provide effective notice to offerors that they were ex-
pected to submit best and final offers, and record supports agency’s decision to take corrective
action.




Page 42                                                                 Digests-February      1990
 .


Procurement
Competitive Negotiation
q Discussion reopening
H H Propriety
n W n Best/final offers
H W H H Corrective actions
Protest that proposed agency corrective action of reopening discussions is inadequate and that pro-
tester should receive award based on initial proposals is denied where record shows that initial
proposals were neither technically acceptable nor most advantageous to the government from a
price standpoint.

B-237295, February 14,1990***
Procurement
Competitive Negotiation
W Offers
W n Evaluation
n H n Personnel
n W n H Cost evaluation
Contracting agency’s mechanical application of an undisclosed man-hour estimate to determine
the acceptability of offers for a fixed-price contract is unreasonable where the agency rejected
offers without discussing the discrepancy between the offerors’ estimates and the government’s es-
timate, and did not, in accordance with the requirements of the solicitation, assess the realism of
the offerors’ lower prices or otherwise evaluate the offerors’ technical approaches.

Procurement
Competitive Negotiation
n Contract awards
W W Initial-offer awards
W n H Propriety
Where agency cannot reasonably conclude that awards represented the lowest overall costs to the
government, agency cannot make award on the basis of initial proposals.

B-237320, February 14,199O
Procurement
Competitive Negotiation
H Requests for proposals
W n Amendments
W n n Propriety
Protest that amendment of solicitation improperly reopened the competition for a second round of
best and foal offers (BAF’Os) is denied where contracting agency had a compelling reason to re-
quest second round of BAFOs.




Page 43                                                                 Digests-February      1990
Procurement
Competitive Negotiation
H Unbalanced offers
II q Materiality
W q q Determination
R H q q Criteria
Awardee’s offer for minimum and indefinite quantity basic and option quantities is not materially
unbalanced where the protester fails to show that the offer contained enhanced prices, that the
total maximum quantities evaluated were not reasonably expected to be exercised, and that award
to the firm will not result in the lowest ultimate cost to the government.

B-237327. February 14.1990***                                                     90-l CPD 191
Procurement
Competitive Negotiation
q Discussion
E E Adequacy
q q W Criteria
Procurement
Special Procurement Methods/Categories
W Computer equipment/services
q q Contract terms
W q E Compliance
q q q H Computer software
Procuring agency failed to conduct meaningful discussions with the protester where the agency’s
technical concerns, which resulted in the elimination of the protester from the competitive range,
were discovered during an on-site demonstration of the protester’s software conducted after receipt
of best and final offers and the agency failed to point out these concerns to allow the protester the
opportunity to explain or retest the questioned aspects of the software.

B-237354, February 14,199O
Procurement
Competitive Negotiation
q Offers
q q Evaluation
E q q Administrative discretion
Agency reasonably found that an offeror did not demonstrate an understanding of agency require-
ments where offeror was determined to have provided insufficient manhour effort and time to ac-
complish the development, design, fabrication, and testing of military antenna assemblies.

Procurement
Competitive Negotiation
E Discussion
W q Adequacy
E q n Criteria
Discussions are meaningful where agency imparted sufficient information to protester to afford it
a fair and reasonable opportunity in the context of the procurement to identify and correct de&
ciencies in its proposal.

Page 44                                                                  Digests-February       1990
  .


B-237366, B-237366.2, February 14,199O
Procurement
Contractor Qualification
H Responsibility
H H Contracting officer findings
H H H Affirmative determination
H H H H GAO review
General Accounting Office will not review a protest of an affirmative determination of responsibil-
ity absent a showing that it was made fraudulently or that definitive responsibility criteria set out
in the solicitation were not met.

Procurement
Competitive Negotiation
H Discussion
H H Adequacy
H H H Criteria
Discussions were meaningful where agency imparted sufficient information to protester to afford
it a fair and reasonable opportunity to identify and correct any deficiencies in its proposal and
written discussion questions were designed to guide protester into those portions of its proposal
that required clarification, additional support or modification.

Procurement
Competitive Negotiation
H Offers
H N Cost realism
H H n Evaluation
H H n H Administrative discretion
Procurement
Competitive Negotiation
n Offers
H H Evaluation errors
H H H Non-prejudicial allegation
Protest that agency improperly raised protester’s proposed costs in cost evaluation for cost-type
contract without holding discussions with protester concerning alleged cost deficiencies is denied,
where the contracting agency reasonably relied upon findings of Defense Contract Audit Agency
that protester’s costs were understated, and record shows that protester was not competitively
prejudiced in any event.

B-238411, February 14,199O
Procurement
Bid Protests
n GAO procedures
H H Protest timeliness
H H n lo-day rule
Protest is untimely where not filed until 2 months after protester received information from con-
tracting agency pursuant to Freedom of Information Act which put protester on notice of grounds
of protest.

Page 45                                                                  Digests-February       1990
                                                                                               .


B-237424, February 15,199O                                                      90-l CPD 192
Procurement
Specifications
H Brand name/equal specifications
H n Equivalent products
H H H Salient characteristics
H H H H Descriptive literature
Where brand name or equal solicitation required descriptive material for equal offers in order to
establish technical equivalency and two rounds of discussions were held, protester had ample op
portunity to submit sufficient descriptive literature; agency was not required to remind offeror to
furnish necessary information in its final proposal.

Procurement
Competitive Negotiation
H Contract awards
H H Propriety
H n H Brand name/equal specifications
H H H H Upgrades
Under brand name or equal procurement for ruggedized disk drive components, award to brand
name manufacturer based on upgraded components (new, state-of-the-art technology, 96 percent
greater disk storage capacity than specified brand name equipment, and a 23 percent greater
price), was proper where no other technically acceptable offers were received and agency reason-
ably determined there would be no different competition for the upgraded components.

B-237991, February 15,199O
Procurement
Bid Protests
H Moot allegation
H H GAO review
General Accounting Office denies protest concerning an agency’s rejection as technically unacceptr
able of an offered product where the identical issue was resolved in a recent decision on a protest
by the same protester involving the same relevant set of factual circumstances.

B-238458. February l5,1990
Procurement
Bid Protests
H Private disputes
H I GAO review
The General Accounting Office will not consider a matter that is essentially a dispute between
private parties.




Page 46                                                                 Digests-February      1990
  .


B-238507, February 15,199O
Procurement
Bid Protests
H GAO procedures
H H Protest timeliness
H H H IO-day rule
H H H H Adverse agency actions
A protest to the General Accounting Office that was not ffied within 10 days after protester should
have known of initial adverse agency action on agency-level protest is untimely.

B-234619, February 16,1990***
Civilian Personnel
Travel
H Overseas travel
n H Travel modes
H H H Domestic sources
H H H n Air carriers
Under travel arrangements made by his agency, a U.S. Information Agency employee traveled
from Costa Rica to Greece on foreign air carriers, although under an alternate routing he could
have traveled part of the way on a U.S. carrier. The employee should not be assessed a penalty for
violating the Fly America Act, 49 U.S.C. App. 8 1517, because he is an employee of an agency cov-
ered by an exception to the act, 49 U.S.C. App. Q 1518, for travel between points outside the United
States. Although it is within the agency’s discretion to limit use of the exception, applicable
agency regulations do not make the exception inapplicable to this travel.

Civilian Personnel
Travel
n Overseas travel
I n Travel modes
n H H Domestic sources
n H H H Air carriers
A U.S. Information Agency employee being transferred from California to Greece was required to
stop in Washington, D.C., for ‘7 days of consultation. He was then routed by his agency on a U.S.
air carrier from Washington, D.C., to Frankfurt, Germany, and by foreign carrier on to Greece,
because U.S. carrier service for the entire distance was not available on the day he traveled, al-
though it was available 5 days a week. The Comptroller General’s Fly America Guidelines do not
specifically require a delay in beginning travel in these circumstances. The Foreign Affairs
Manual provides generally that scheduling the use of U.S. carriers is expected for transfer travel
or when the traveler has flexibility. However, this general policy statement does not support a
penalty against the employee in this case since the agency scheduled his travel and apparently
concluded that the travel could not be delayed.

B-235664.2, February 16,199O
Procurement
Bid Protests
H GAO procedures
n n GAO decisions
H n H Reconsideration
Request for reconsideration of prior decision-holding that desire to obtain enhanced competition
by relaxing delivery schedule and geographic restriction constitutes a compelling reason to cancel

Page 47                                                                 Digests-February      1990
                                                                                              .

solicitation and resolicit where only one responsive bid was received-is denied where protester
essentially restates its prior arguments and does not show that the decision was based on error %f
fact or law.

B-237010.2, et al., February 16, 1990;.
Procurement
Sealed Bidding
H Bids
H H Evaluation
H H H Price reasonableness
H H n H Administrative discretion
Procurement
Sealed Bidding
H Invitations for bids
n H Government estimates
H H H Defects
H n H H Allegation substantiation
Protest that government estimate is unreasonably low is denied where the contracting agency’s
explanation of the estimate demonstrates that it is reasonable.

Procurement
Sealed Bidding
H Invitations for bids
H H Defects
H H H Evaluation criteria
H n n H Pricing
Protest that evaluation of bids is improper is sustained where there is no assurance that the
award will be based on the lowest cost to the government.

B-237166.4, B-237166.5, February 16,199O
Procurement
Sealed Bidding
H Two-step sealed bidding
H H Offers
n H n Rejection
n n H n Propriety
Protester’s proposal under modified two-step procurement was properly rejected as technically
noncompliant where protester was given notice of potential areas where its proposal did not
comply with essential requirements of the solicitation and failed to correct those areas.




Page 48                                                                Digests-February      1990
Procurement
Sealed Bidding
W Two-step sealed bidding
H H Offers
H n H Rejection
H H H I Propriety
The General Accounting Office will not question the exclusion of the protester’s proposal as non-
compliant where the proposal was reasonably found deficient with respect to essential require
ments of the solicitation.

B-237361, February 16,199O                                                     90-l CPD 193
Procurement
Bid Protests
H GAO procedures
H H Protest timeliness
H n H Apparent solicitation     improprieties
Protest against alleged apparent solicitation impropriety-inclusion    of extended prices for line
items for which allegedly inaccurate estimated quantities had been provided, as part of price for
purpose of calculating low bid-is untimely when first raised by protester after bid opening.

B-237368, February 16,199O
Procurement
Competitive Negotiation
H Offers
H H Competitive ranges
n H n Exclusion
H H n m Administrative discretion
Where solicitation read as a whole advised offerors that a proposal complying with only one of the
requirements concerning computer operating systems and host computers would be considered
only if the agency received no proposal that complied with all of the requirements, and awardee
submitted proposal complying with all requirements, agency properly rejected the awardee’s pro-
posal that met only one requirement.

Procurement
Competitive Negotiation
H Requests for proposals
H W Terms
H H H Compliance
Procurement
Special Procurement Methods/Categories
m Computer equipment/services
H n Contract terms
H H H Compliance
n H H H Computer software
Protest that awardee’s proposed computer software failed to comply with requirement for
“formal” language is denied where protester fails to demonstrate that the agency acted unreason-
ably in determining that the offered software was compliant.

Page 49                                                                Digests-February      1990
B-237426, February 16,199O                                                                       c
Procurement
Competitive Negotiation
H Below-cost offers
W n Acceptability
Although protester contends that awardee cannot perform contract for the price it proposed, since
in awarding contract the agency concluded that awardee could perform at the offered price and
necessarily determined that the firm was responsible, awardee’s alleged below cost offer is no basis
to overturn award.

Procurement
Bid Protests
n GAO procedures
H I Protest timeliness
n n W Apparent solicitation     improprieties
Protest filed after award that contract should not have been awarded based on fured-price offers is
untimely since it was clear from the face of the solicitation that a fured-price contract would be
awarded and under Bid Protest Regulations protests based on alleged improprieties in a solicita-
tion which are apparent prior to the closing date for receipt of proposals must be filed prior to
that date.

Procurement
Bid Protests
W GAO authority
General Accounting Offrice’s authority to decide bid protests encompasses only protests relating to
particular procurements; protest of agency’s general procurement practices will therefore not be
considered.

Procurement
Competitive Negotiation
n Offers
W W Evaluation
H H W Administrative discretion
In reviewing protests concerning the evaluation of proposals, the General Accounting Office will
not substitute its judgment for that of the agency’s evaluators but will examine the record to de-
termine whether the evaluators’ judgments were reasonable and in accordance with the listed cri-
teria. Moreover, the protester must show that the evaluation was unreasonable and mere disagree-
ment with the agency does not render the evaluation unreasonable.

B-237530, February 16,199O                                                       90-l CPD 194
Procurement
Noncompetitive Negotiation
W Contract awards
n H Sole sources
n n H Propriety
Sole-source award of a contract is proper where the contracting agency reasonably determined
that only one source could supply the required item, a quantitative method for measuring afla-
toxin levels in grain, and complied with the statutory procedural requirements for a sole-source
award.

Page 50                                                                  Digests-February      1990
B-237532, February 16,199O
Procurement
Bid Protests
W GAO procedures
n n Protest timeliness
W W n Apparent solicitation     improprieties
Protest challenging Buy American Act requirements in an invitation for bids as ambiguous is un-
timely when filed after bid opening.

Procurement
Sealed Bidding
n Bids
n n Responsiveness
H H n Additional information
H n n n Post-bid opening periods
Agency properly rejected protester’s apparent low bid as nonresponsive because of the firm’s fail-
ure to submit a list of the quantity and price of each foreign item proposed, as required for a Buy
American Act evaluation in a construction contract. Such information could not be submitted
after bid opening since it would allow the protester the opportunity to manipulate its bid so it
could either accept or decline award of the contract.

B-237537, February 16.1990
Procurement
Competitive Negotiation
n Offers
n W Evaluation
W n n Administrative discretion
In assessing the relative desirability of proposals and determining which offer should be accepted
for award, the contracting agency enjoys a reasonable range of discretion, and the General Ac-
counting Office has no basis to question the agency’s selection of an offeror other than the protest-
er, the incumbent, where the protester submitted a sketchy technical proposal which only sum-
marily addressed the solicitation’s evaluation criteria.

B-237558. February 16.1990
Procurement
Special Procurement Methods/Categories
W Federal supply schedule
W n Multiple/aggregate awards
n H H Mandatory use
Protest that requirements set forth in a request for quotations (RFQ), issued in conjunction with a
mandatory, multiple award Federal Supply Schedule WE9 contract, exceed the FSS specifications
is denied where the RFQ merely particularized the issuing activity’s minimum needs, and the
stated requirements do not conflict with the FSS.




Page 51                                                                  Digests-February       1990
                                                                                                .


Procurement
Specifications
W Minimum needs standards
n n Competitive restrictions
H W W Allegation substantiation
n n W W Evidence sufficiency
Protest that requirements set forth in a request for quotations (RFQ), issued in conjunction with a
mandatory, multiple award Federal Supply Schedule (FSS) contract, exceed the FSS specifications
is denied where the RFQ merely particularized the issuing activity’s minimum needs, and the
stated requirements do not conflict with the FSS.

Procurement
Small Purchase Method
W Requests for quotations
W W Evaluation criteria
n n n Sufficiency
Protest that agency failed to provide necessary evaluation factors is denied where the solicitation
clearly sets forth the formula which will be used to determine the lowest weighted price.

B-237632. February 16.1990***
Procurement
Competitive Negotiation
W Requests for proposals
W H Terms
n n n Subcontracts
n n n H Small businesses
Agency properly included provision in request for proposals (RFP) requiring that the company
awarded a supply contract under a small business set-aside perform at least 50 percent of the cost
of manufacturing the supplies called for by RFP since provision implements the requirements of
the Small Business Act.

B-237677, February 16,199O
Procurement
Competitive Negotiation
W Requests for proposals
H n Competition rights
n n n Contractors
n n n n Exclusion
In an emerging small business set-aside, under small purchase procedures, agency’s failure to so-
licit protester does not constitute an adequate reason to cancel and reissue the solicitation where
the protester was not deliberately excluded from the competition, adequate competition was ob-
tained, and the apparent low offer is reasonably priced.




Page 52                                                                 Digests-February       1990
   .


Bk237208.2, February 20,1990***
Procurement
Competitive Negotiation
n Contract awards
W n Administrative discretion
W W W Cost/technical tradeoffs
n n H W Technical superiority
Contract awarded for “on-site research animal colony support” to offeror submitting higher pro-
posed cost proposal was reasonable where contracting agency found higher cost proposal to contain
excellent merit compared with protester’s lower cost, lower scored technical proposal and contract-
ing agency further found that technical merit in higher cost proposal was worth the financial pre-
mium involved.

B-237306.2, February 20.1990
Procurement
Competitive Negotiation
W Discussion
n n Adequacy
n n n Criteria
Agency satisfied obligation to conduct meaningful discussions where it imparted sufficient infor-
mation to protester with regard to various perceived weaknesses to afford it a fair and reasonable
opportunity, in the context of the procurement, to identify and correct the deficiencies in its pro-
posal.

B-237331, B-237331.2, February 20,199O                                           90-l CPD 195
Procurement
Competitive Negotiation
n Offers
H n Evaluation
n n n Point ratings
Where a solicitation lists construction experience and financial condition as technical evaluation
factors to be scored up to a maximum of 300 points, there is no merit to the contention that the
agency was required to award the full 300 points to all qualified, responsible offerors.




Page 53                                                                 Digests-February       1990
B-237363. Februarv 20.1990                                                                         .
Procurement
Contractor Qualification
n Responsibility
n n Contracting officer findings
W W W Negative determination
n n n n GAO review
Procurement
Sealed Bidding
n Bid guarantees
n n Sureties
W W W Acceptability
n n W H Information      submission
Contracting agency reasonably determined bidder to be nonresponsible where bidder’s individual
sureties were found to be unacceptable based on information contained in their affidavits and an
ongoing federal investigation which cast doubt on their credibility and integrity.

B-237454, B-237454.2, February 20,199O
Procurement
Sealed Bidding
n Invitations for bids
n n Responsiveness
n W n Descriptive literature
Agency properly rejected bids as nonresponsive where the bidders submitted with their bids unso-
licited descriptive literature concerning the specific products offered, which raised questions as to
whether the products complied with some of the material solicitation requirements and showed
that the products did not comply with certain other material solicitation requirements.

B-237512, February 20,199O                                                       90-l CPD 196
Procurement
Sealed Bidding
n Bids
W W Error correction
n n n Pricing errors
n n n n Line items
Agency properly permitted bidder to correct omission of two option prices where the nature and
existence of the error was clear and there was a consistent pricing pattern for the options of 2.5
percent more than the base price.

B-238283.2, February 20,199O
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n W W Reconsideration
Request for reconsideration is denied where supporting arguments are based upon information
which was previously available to the protester, but not presented during consideration of the ini-
tial protest.

Page 54                                                                  Digests-February      1990
B-237410, B-237475, February 21,1990***
Procurement
Bid Protests
W GAO procedures
n n Protest timeliness
n n n Significant issue exemptions
n n n n Applicability
Untimely protests, concerning procurement of all processed foods by the Department of Defense
(DOD), presents a significant issue justifying consideration on the merits where protests concern
the proper interpretation of a continuing statutory restriction on DOD’s procurement of food
which has not been previously considered by the General Accounting Office.

Procurement
Socio-Economic Policies
n Preferred products/services
n W Foreign/domestic product distinctions
Procuring agency properly applied the restriction contained in the annual Department of Defense
Appropriations Act by requiring offerors to supply f=h which had been caught by American flsh-
ing vessels, brought to American ports and processed in American plants. The restriction in the
act does not permit the purchase of fore&caught   but American-processed fish.

B-237527, February 21,199O                                                      90-l CPD 198
Procurement
Competitive Negotiation
n Offers
n n Cost realism
n n H Evaluation
W H H W Administrative discretion
Protest that awardee’s low proposed labor rates amount to lack of cost realism is denied where
agency’s evaluation of cost realism was reasonable, and awardee confirmed its intent to comply
with labor laws and was found to be otherwise responsible.

Procurement
Competitive Negotiation
n Offers
H W Evaluation
n W n Technical acceptability
Where awardee’s proposal was evaluated according to criteria in solicitation and found technically
acceptable, contracting officer reasonably determined that awardee’s understanding of the require
ment and business judgment were sound despite low price.




Page 55                                                                 Digests-February      1990
                                                                                                c




B-238172, February 21,1990***
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
n W n n Adverse agency actions
Where protest initially was tiled with contracting agency, subsequent protest to General Account-
ing Office (GAO) which was not filed within 10 working days of actual knowledge of the initial
adverse agency action is dismissed as untimely. Earlier receipt by GAO of information copy of
letter which was addressed to the contracting agency and did not include a clear indication of a
desire for a decision by GAO did not constitute timely protest to GAO.

B-237377. February 22.1990                                                       90-l CPD 199
Procurement
Contractor Qualification
W Responsibility
n n Information
W n n Submission time periods
Procurement
Contractor Qualification
n Responsibility/responsiveness       distinctions
Procurement
Government Property Sales
n Timber sales
n n Bids
n n n Certification
The contracting offrcer acted improperly in rejecting a bid as nonresponsive on, and excluding the
bidder from, a sealed bid/auction timber sale where the sealed bid included an executed form
FS-2400-43, Certification of Nonsubstitution of Domestic Timber, but did not provide requested
information regarding the bidder’s timber exports, since this information relates to responsibility,
rather than responsiveness, and can be supplied any time prior to award.

B-237495, February 22,199O                                                       90-l CPD 200
Procurement
Bid Protests
H Allegation substantiation
W n Lacking
n n n GAO review
Protest that agency failed to apply solicitation preference for historic buildings is denied since
preference did not apply where agency reasonably concluded that the proposed awardee’s offer
was superior to protester’s offer.




Page 56                                                                  Digests-February      1990
Procurement
Bid Protests
W Non-prejudicial    allegation
W W GAO review
Procurement
Competitive Negotiation
W Contract awards
n H Price disclosure
W H n Propriety
Contention that agency cannot award contract because disclosure of name of proposed awardee
and estimate of the cost of the project in local newspapers after best and final offers precludes
execution of Certificate of Procurement Integrity is denied where statutory requirement for sub-
mission of Certificate has been suspended and where record contains no evidence that release prej-
udiced the protester.

B-237517, February 22,199O                                                      90-l CPD 201
Procurement
Specifications
1 Brand name/equal specifications
n n Equivalent products
W W W Acceptance criteria
Where brand name or equal solicitation required descriptive material for equal offers in order to
establish technical equivalence to brand name item, agency properly determined that protester’s
blanket statement that proposed equal product is equivalent to the brand name was not sufficient
to demonstrate equivalence, and thus properly rejected the proposal notwithstanding its lower
price.

B-237638, February 22,1990***                                                   90-l CPD 202
Procurement
Socio-Economic Policies
W Small businesses
H W Competency certification
W n 0 Reconsideration
H W n n Additional information
There is no legal requirement that the contracting agency again refer the question of an offeror’s
responsibility to the Small Business Administration (SBA) where, following agency determination
that offeror was nonresponsible and SBA refusal to issue certificate of competency, the contracting
officer reconsiders the nonresponsibility determination in light of new information submitted by
offeror and reasonably determined that reversal of the nonresponsibility determination is not war-
ranted.




Page 57                                                                 Digests-February      1990
B-237687, February 22,1990***                                                  90-l CPD 203
Procurement
Competitive Negotiation
n Offers
W W Competitive ranges
W n n Exclusion
W W l n Administrative discretion
Protester was properly excluded from the competitive range where the agency reasonably conclud-
ed that the offeror had no reasonable chance of award because of deficiencies in proposed resumes
and because of its otherwise low technical score and high price.

B-237843, February 22,199O                                                     90-l CPD 204
Procurement
Specifications
n Brand name specifications
n H Equivalent products
W n n Acceptance criteria
Issuance of purchase order in a small purchase procurement for a different brand item than that
quoted by the low bidder is not objectionable where the contracting agency had already deter-
mined that the supplied item was technically acceptable based upon other contractor’s descriptive
literature and the low bidder in fact supplied the item at its original quoted price.

B-238332, February 22,199O                                                     90-l CPD 205
Procurement
Competitive Negotiation
n Contract awards
H W Administrative discretion
n W n Cost/technical tradeoffs
n n H n Cost savings
Award to firm which submits low, technically acceptable offer was proper since it was in accord-
ance with solicitation award provision which called for award to low, technically acceptable of-
feror.

Procurement
Bid Protests
n GAO procedures
n W Protest timeliness
n W n Apparent solicitation     improprieties
Protester’s contentions, not raised until after award, that the solicitation should have been set
aside for labor surplus area concerns and that amendments to solicitation favored a particular of-
feror are untimely and will not be considered.




Page 58                                                                Digests-February      1990
  .


IS’-238619.February 22,199O                                                      90-l CPD 206
Procurement
Bid Protests
n GAO procedures
W H Protest timeliness
H W W Delays
H W n W Agency-level protests
Protest is dismissed as untimely where initial agency-level protest against rejection of bid was
filed 3 months after protester received notice of rejection.

B-235569.4, February 23,199O                                                     90-l CPD 207
Procurement
Competitive Negotiation
W Requests for proposals
1 W Cancellation
H W H Justification
n W H W Competition enhancement
Contracting agency properly canceled solicitation where no offerors proposed compliant products
and the agency determined that the specifications exceeded agency’s needs and were overly re-
strictive, and that resoliciting the requirement under less restrictive specifications will increase
competition and assure full and open competition.

B-236218.2, February 23,199O                                                     90-l CPD 208
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
W H H Reconsideration
Request for reconsideration of prior decision is denied where protester fails to show any error of
fact or law that would warrant reversal or modification of prior decision.

B-236734.2, February 23,199O                                                     90-l CPD 209
Procurement
Socio-Economic Policies
n Small businesses
I n Responsibility
W W n Competency certification
n n n n GAO review
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.




Page 59                                                                 Digests-February       1990
                                                                                                 .


Procurement
Socio-Economic Policies
n Small businesses
n n Competency certification
n n n Bad faith
n n n n Allegation substantiation
Protest is denied where record does not support protester’s contention that the Small Business
Administration’s (SBA) certificate of competency denial was based on one SBA offkial’s predisposi-
tion to award the contract to another bidder.

B-236870.2. February 23,199O                                                       90-l CPD 210
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Request for reconsideration is denied where protester fails to show error of fact or law or informa-
tion not previously considered that would warrant reversal or modification of prior decision; mere
restatement of arguments previously considered or disagreement with the initial decision is not
sufficient to warrant reconsideration.

B-237408. Februarv 23. 1990                                                        90-l CPD 211
Procurement
Competitive Negotiation
n Requests for proposals
n n Terms
n n n Ambiguity allegation
n n n n Interpretation
Protester’s interpretation of an amendment as deleting option requirements is unreasonable
where a reading of the solicitation as a whole evidences no such intent and where the amendment
did not specifically alter the section of the solicitation which required the pricing of options.

-Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Options
n n n n Prices
where    protester’s prices for various line items were submitted sequentially in three separate docu-
ments    and confnmed in its best and final offer, agency had no reason to question whether the
option   prices contained in the first of these documents, and unamended by the others that fol-
lowed,   were current. Thus, agency acted reasonably in using the protester’s option prices as sub-
mitted   in its initial proposal during the final evaluation of offers.




‘Page 60                                                                  Digests-February       1990
   .



Bl237434, February 23,1990***                                                   90-l CPD 212
Procurement
Contract Management
n Contract modification
n n Cardinal change doctrine
n n n Criteria
n n n n Determination
Modification of existing contract to add court reporting services for an interim period pending
completion of competitive procurement for new contract constitutes an improper solesource award
where new services are not within the scope of the contract as originally awarded, limited compe-
tition was not justified, and procuring agency was aware that the incumbent contractor was inter-
ested in competing.

B-237522, February 23,199O                                                      90-l CPD 213
Procurement
Contract Types
n Time/materials     contracts
n q Labor costs
Where request for proposals required offerors to propose fued labor rates, agency was not required
to make award to protester where its proposal indicated that labor rates contained in the proposal
were “average” rates rather than firm prices and that offeror intended to charge different rates
after award depending upon skill levels of personnel assigned to perform each task order.

B-237596, February 23,199O                                                      90-l CPD 214
Procurement
Noncompetitive Negotiation
n Use
n n Justification
n n n Industrial mobilization     bases
In a procurement conducted by a military agency under provisions of the Competition in Competi-
tion Act pertaining to mobilization base producers, the usual concern for obtaining full and open
competition is secondary to the needs cf industrial mobilization; the agency properly may restrict
such a procurement to predetermined sources in order to create or maintain their readiness to
produce critical supplies, and such restriction will be left to the discretion of the agency where
there is no compelling evidence of abuse of that discretion.

Procurement
Specifications
n Minimum needs standards
n n Total package procurement
n n n Propriety
Allegation that procurement that is restricted to four fulns could be expanded to include others is
denied; agency did not abuse its discretion in restricting competition for mobilization base pur-
poses and, in any event, agency had reasonable basis for the total package approach it adopted.




Page 61                                                                 Digests-February      1990
                                                                                                .



B-237666, February 23,199O                                                       90-l CPD 215
Procurement
Sealed Bidding
n Bids
n n Responsiveness
n n n Certification
n n n n Omission
General Accounting Office will not review contracting agency’s rejection of a bidder who failed to
complete the solicitation’s Certificate of Procurement Integrity or disturb the contract award since
the requirement for the Certificate has been suspended.

B-237692, February 23,199O                                                       90-l CPD 216
Procurement
Sealed Bidding
n Invitations for bids
n n Amendments
n n n Acknowledgment
n n n n Waiver
Where Certificate of Procurement Integrity clause requiring completion of Certificate is already
incorporated in the solicitation, failure to acknowledge amendment that advises bidders to com-
plete Certificate may be waived as a minor informality because amendment is immaterial since it
imposes no new legal obligation.

Procurement
Sealed Bidding
n Bids
n n Responsiveness
n n n Certification
n n n n Omission
General Accounting office will not review contracting agency’s rejection of a bidder who failed to
the complete the solicitation’s Certificate of Procurement Integrity or disturb the contract award
since the requirement for the Certificate has been suspended.

B-237794, February 23,199O                                                      90-l CPD 217
Procurement
Sealed Bidding
n Invitations for bids
n n Evaluation criteria
n n n Approved sources
Contracting agency improperly rejected protester’s bid on ground that the product offered did not
appear on qualified products list (QPL) where solicitation failed to identify the procurement as
subject to a QPL requirement, and agency did not provide bidders with a reasonable opportunity
to demonstrate the acceptability of their products prior to bid opening.




Page 62                                                                 Digests-February      1990
B--237864, February 23,199O                                                       90-l CPD 218
Procurement
Bid Protests
n Allegation substantiation
n n Lacking
n n n GAO review
Protest contending that source listed on awardee’s quotation is not the manufacturer and the item
will not be produced domestically is denied where record contains evidence which supports the
awardee’s statements in its quotation and the protester has raised a basic allegation with no spe-
cifics.

B-238095, February 23,199O                                                        90-l CPD 219
Procurement
Contractor Qualification
n Organizational conflicts of interest
n n Allegation substantiation
n n n Evidence sufficiency
Allegation that a firm is ineligible for award because its sole owner’s husband is a government
employee is denied; agency reasonably concluded there was sufficient separation of ownership and
control of the firm, on the one hand, and the performance of unrelated duties by the government
employee on the other hand, to preclude any actual or apparent conflict of interest,

B-238178.2, February 23,199O                                                      90-l CPD 220
Procurement
Bid Protests
n GAO procedures
n n Reconsideration
Request for reconsideration of prior dismissal of protest as untimely filed is denied where (1) pro-
test challenged alleged solicitation impropriety but was not fded until after bid opening; (2) even
assuming that protester’s decision not to file a protest before bid opening was reasonable because
contracting agency had led protester to believe that agency concurred in protester’s interpretation
of challenged solicitation provision, protest was not filed with General Accounting Office within 10
working days after the protester had actual or constructive knowledge of adverse action on initial
protest filed with contracting agency; and (3) protest does not warrant invoking the significant
issue exception to the timeliness rules.

B-238541, February 23,199O                                                        90-l CPD 221
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
n n n n Adverse agency actions
Where firm initially protests to agency the limitation of an acquisition to exclusively domestic
firms prior to closing date for receipt of initial proposal, the agency’s opening of proposals without
taking requested corrective action constitutes initial adverse agency action. Consequently, a pro-
teat to the General Accounting Office (GAO) 8 weeks later, based upon agency’s written denial of
agency-level protest, is untimely under GAO’s bid protest regulations.

Page 63                                                                   Digests-February       1990
B-233213.2, February 26,199O                                                    90-l CPD 222
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n q lo-day rule
Protest challenging the award of a contract based on initial proposals is dismissed as untimely
where protest is based on information obtained pursuit to a Freedom of Information Act request
filed 7 months after the protester first requested information pertaining to the award, since the
protester failed to diligently pursue the information forming the basis of its protest.

Procurement
Competitive Negotiation
n Offers
n n Preparation costs
There is no basis for an award of proposal preparation costs where current protest is dismissed as
untimely and prior protest under same solicitation by another protester- resulting in a settle-
ment between the parties including in part the agency’s reimbursement of the protester’s proposal
preparation costs-was withdrawn, since a prerequisite to the award of costs under the Competi-
tion in Contracting Act of 1984 is a decision on the merits of a protest.

B-237060.2. February 26.1990                                                    90-l CPD 223
Procurement
Competitive Negotiation
n Offers
n n Competitive ranges
n n n Exclusion
n n n n Administrative discretion
Procuring agency properly determined that the protester’s initial proposal was unacceptable and
not in the competitive range where the request for proposals sought the evaluation of specific se-
lected state Job Opportunities and Basic Shills programs and the protester offered to perform a
generalized nationally representative survey based upon a random sample.

Procurement
Competitive Negotiation
q Offers
n n Competitive ranges
m n n Exclusion
n n n n Administrative discretion
Procuring agency need not include the protester’s unacceptable initial proposal in the competitive
range where major revisions would be required to make the proposal acceptable.




Page 64                                                                Digests-February       1990
Procurement
Bid Protests
n GAO procedures
W n Protest timeliness
H H W lo-day rule
Protest that agency did not invite the protester to a research workshop, which concerned the
methods of evaluating the Family Support Act and Job Opportunities and Basic Skills programs,
is untimely where the protester had known about the conference since the issuance of the solicita-
tion and only protested this matter after the exclusion of its proposal from the competitive range.

B-237065.2, February 26,199O                                                      90-l CPD 224
Procurement
Competitive Negotiation
W Requests for proposals
W W Cancellation
W W H Resolicitation
H n H W Propriety
Cancellation of solicitation and resolicitation is appropriate where procurement encompassing con-
struction work was conducted, and award was made, under solicitation which did not include re-
quired Davis-Bacon wage determination.

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

B-237073.2, February 26,1990***                                                       90-l CPD 225
Procurement
Sealed Bidding
W Bid guarantees
n n Responsiveness
H n n Agents
H n W W Identification
Protest that bid bond was defective due to corporate surety’s failure to name federal process
agents is denied because such failure is a procedural omission that does not bear directly on the
authority of the surety to issue the bond or affect the underlying obligation of the surety.

B-237465, February 26,199O                                                            90-l CPD 226
Procurement
Bid Protests
W GAO procedures
n n Protest timeliness
W W W Apparent solicitation      improprieties
Protester’s objections to various alleged deficiencies in a solicitation which were apparent from the
face of the solicitation prior to the time for receipt of initial proposals are dismissed as untimely
since protest was not filed until after subsequent request for best and final offers was made.

Page 65                                                                   Digests-February      1990
                                                                                                                                  F




P rocurement                                                                                                                          c    5
C o m p e titive Negotiation
W Requests for proposals
n n A m e n d m e n ts
H W W Propriety
Fact that solicitation a m e n d m e n t transmitting w a g e determinations a n d certain c h a n g e sto solici-
tation provisions w a s r e c e i v e d immediately after, a n d not before, telephonic discussions w e r e c o n -
d u c t e d p r o v i d e s n o basis for disturbing p r o c u r e m e n t w h e r e contents of a m e n d m e n t w o u l d not h a v e
b e e n the subject of discussions in a n y event a n d w h e r e a m e n d m e n t w a s r e c e i v e d 1 w e e k b e f o r e
best a n d final offers w e r e d u e .

B - 2 3 7 4 8 6 ,F e b r u a r y 2 6 ,1 9 9 O                                                                90-l C P D 2 2 7
P rocurement
C o m p e titive Negotiation
W Discussion r e o p e n i n g
W W Propriety
W h e r e a n a g e n c y r e o p e n s negotiations b y advising o n e offeror to l o w e r its prices, it must also c o n -
duct discussionswith the o t h e r offeror in the competitive r a n g e .

B - 2 3 7 5 4 5 . F e b r u a r v 2 6 .1 9 9 0                                                               90-l C P D 2 2 8
P rocurement
Contract M a n a g e m e n t
W Contract administration
n W G A O review
Protest of a g e n c y ’sactions in authorizing s e c o n d y e a r of multiyear contract a n d canceling s e c o n d
y e a r of protester’s multiyear contract for the s a m e item, is dismissed since the a g e n c y ’s actions
involved matters of contract administration not r e v i e w e d b y the G e n e r a l A c c o u n t i n g O ffice.

B - 2 3 7 5 9 8 ,B - 2 3 7 5 9 9 ,F e b r u a r y 2 6 ,1990***                                               90-l C P D 2 2 9
P rocurement
C o m p e titive Negotiation
n Contract a w a r d s
n n Propriety
O ffer complies with C o m m e r c i a l O p e r a t i o n s clause r e q u e s t i n g a list of sites w h e r e e q u i p m e n t of
the s a m e model, type a n d class a s the p r o p o s e dsystem h a s o p e r a t e d successfully, w h e r e the infor-
mation submitted is verified b y the a g e n c y , a n d the e q u i p m e n t is f o u n d to b e successfully o p e r a t -
i n g at those sites.

B - 2 3 7 6 2 9 ,F e b r u a r y 2 6 ,1990***                                                                90-l C P D 2 3 0
P rocurement
Contractor Qualification
H Responsibility
n n Contracting officer findings
n H n Negative determination
W n W H P r e - a w a r d surveys
A g e n c y r e a s o n a b l y f o u n d low b i d d e r n o n r e s p o n s i b l e o n solicitation for a n automotive
m a i n t e n a n c e / r e p a i r contract, w h e r e the b i d d e r h a s n o current automotive m a i n t e n a n c e contract,
a p r e - a w a r d survey t e a m r e c e i v e d unsatisfactory reports o n the b i d d e r ’s only prior contract for

P a g e6 6                                                                                        Digests-February 1 9 9 0
    this work, the bidder’s other contract work is not readily transferable, and the agency was reason-
    ably concerned about the bidder’s personnel staffing.

    B-237826, February 26,199O                                                        90-l CPD 231
    Procurement
    Bid Protests
    n GAO procedures
    W n Protest timeliness
    n W n Apparent solicitation improprieties
    Protest that agency overstated its minimum needs is dismissed as untimely when not filed before
    the closing date for proposals following the incorporation of the allegedly restrictive specification
    in the solicitation.

    Procurement
    Competitive Negotiation
    n Best/final offers
    W W Multiple offers
    W W H Justification
    Protest that agency should have requested that protester submit a best and final offer is denied
    where the protester took explicit exception to the RFP’s stated requirements after being notified
    of a proposal deficiency, since an agency is not required to hold successive rounds of discussions so
    that an unacceptable offeror might become acceptable.

    Procurement
    Bid Protests
    W GAO procedures
    H H Protest timeliness
    n W n lo-day rule
    Protest that awardee’s product failed to meet the specifications is dismissed as untimely where the
    protester did not diligently pursue the information concerning the awardee’s product which forms
    the basis of protest.

    Procurement
    Competitive Negotiation
    n Contract awards
.   n H Propriety
    n W n Offers
    W W W n Minor deviations
    Where awardee’s x-ray scanning equipment is 1 inch larger than size specified in solicitation,
    agency properly waived deviation as inconsequential since the equipment would meet its mini-
    mum needs and other bidder was not prejudiced by the waiver.




    Page 67                                                                  Digests-February       1990
B-237986.4, February 26,199O                                                      90-l CPD 232
Procurement
Bid Protests
W GAO procedures
n W Protest timeliness
I W W Significant issue exemptions
4 W W W Applicability
Untimely protest against specifications, content of discussions and technical evaluation is not for
consideration under the significant issue exception to the General Accounting Office Bid Protest
Regulations.

B-237992, February 26,199O                                                        90-l CPD 233
Procurement
Bid Protests
n GAO procedures
q W Protest timeliness
W W n lo-day rule
Protest that an approved source listed in the procurement documents is not a manufacturer is
untimely since it was tiled more than 10 working days after a contracting agency letter advised
the protester that only manufacturers could be listed as approved sources.

B-238134, February 26,199O                                                        90-l CPD 234
Procurement
Bid Protests
n GAO procedures
W W Protest timeliness
W W W Apparent solicitation         improprieties
Protest alleging specification impropriety apparent on the face of the solicitation that minimum
wastepaper content requirement for paper products being purchased restricts competition is un-
timely when not filed prior to bid opening.

Procurement
Sealed Bidding
n Bids
n H Responsiveness
W n n Determination      criteria
Protester’s bid was properly rejected as nonresponsive where protester took exception in its bid to
a material solicitation requirement that paper products to be furnished contain a minimum of 50
percent wastepaper.

B-238621, February 26,199O                                                        90-l CPD 235
Procurement
Bid Protests
H Definition
Protest consisting of a copy of a letter to a contracting officer, without any further explanation, is
dismissed where the submission fails to set forth a detailed statement of the legal and factual
grounds of the protest as required by General Accounting Office’s Bid Protest Regulations.

Page 68                                                                   Digests-February       1990
   c




Bz236735.2, February 27,199O                                                     90-l CPD 236
Procurement
Sealed Bidding
W Invitations for bids
W W Post-bid opening cancellation
W W W Justification
MB W W Sufficiency
Information relating to whether there is a sufficient reason to cancel can be considered no matter
when the information justifying the cancellation first surfaced or should have been known.

Procurement
Sealed Bidding
W Invitations for bids
W W Post-bid opening cancellation
W W W Justification
W W W W Price reasonableness
Where record shows that agency believed that services could be performed more cheaply in-house
and that some of the estimates contained in IFB were inaccurate, General Accounting Office will
not object to cancellation even though agency’s initial justification for cancellation of invitation
for bids was questionable.

Procurement
Special Procurement Methods/Categories
W In-house performance
W W Administrative discretion
W W W GAO review
Where record shows that agency believed that services could be performed more cheaply in-house
and that some of the estimates contained in IFB were inaccurate, General Accounting Office will
not object to cancellation even though agency’s initial justification for cancellation of invitation
for bids was questionable.

B-237048.3, February 27,199O                                                     90-l CPD 237
Procurement
Competitive Negotiation
W Contract awards
W W Errors
W W W Corrective actions
W II W W Moot allegation
Dismissal of protest that proposal was improperly evaluated is affirmed; agency determined that
evaluation factors were defective, terminated awardee’s contract, and stated its intention to re-
compete the requirement on the basis of revised evaluation criteria, thus rendering the protest
academic.




Page 69                                                                  Digests-February      1990
                                                                                               ,


Procurement
Bid Protests
W GAO procedures
W W Preparation costs
Where a protest is dismissed as academic, there is no decision on the merits and therefore no basis
for recovery of protest costs.

B-237448, February 27,199O
Procurement
Contracting Power/Authority
W Unauthorized contracts
W W Ratification
The Navy may ratify a commitment for a newspaper advertisement for which prior formal approv-
al was not obtained.

B-237503, February 27,199O                                                       90-l CPD 238
Procurement
Competitive Negotiation
W Requests for proposals
W W Evaluation criteria
n W W Cost/technical tradeoffs
W W W W Weighting
Where solicitation contains technical evaluation factors and provides that award will be based on
both price and technical factors and does not state that evaluation will be conducted on a
“acceptable/unacceptable” basis, technical proposals should be evaluated on a relative basis and
selection based on a price/technical tradeoff.

Procurement
Competitive Negotiation
W Competitive advantage
W W Non-prejudicial allegation
The fact that an offeror proposed to use an aircraft donated to it by a government agency, other
than the contracting agency in its offer under a solicitation for pilot training does not constitute
an unfair competitive advantage which the contracting agency was required to equalize.

B-237555, February 27,199O                                                       90-l CPD 239
Procurement
Competitive Negotiation
W Requests for proposals
W W Evaluation criteria
W W W Prior contracts
W W W W Contract performance
Where technical evaluation scheme in request for proposals sets forth prior experience and per-
formance as an evaluation factor and protester referenced in its proposal its performance under
prior contracts, the agency properly investigated the protester’s performance under these and
other prior contracts of which it was aware in making its technical acceptability determination.

Page 70                                                                  Digests-February      1990
Pgocurement
Competitive Negotiation
W Offers
W W Risks
W W W Pricing
Agency properly considered unexplained reductions in protester’s final price as an indication that
its proposal presented performance risks.

Procurement
Competitive Negotiation
W Discussion reopening
W W Propriety
An agency has no obligation to reopen negotiations so that an offeror may remedy defects intro-
duced into a previously acceptable proposal by a best and final offer since the offeror assumes the
risk that changes in its final offer might raise questions about its ability to meet the requirements
of the solicitation.

Procurement
Competitive Negotiation
W Offers
W W Risks
W W W Evaluation
W W W W Technical acceptability
Decision not to award to lowest-priced offeror was reasonable where source selection authority de-
termined that the proposal represented a performance risk and that the technical superiority of
another offeror’s proposal outweighed its cost premium.

B-237595. February 2’7.1990
Procurement
Specifications
W Minimum needs standards
W W Competitive restrictions
W W W Allegation substantiation
W W W W Evidence sufficiency
Protest that requirement for g-year warranty for roofing services unduly restricts competition is
denied where protester does not show that requirement exceeds agency’s minimum needs and
argues only that the Syear warranty is difficult for bidders to provide.

B-237619, February 27,199O                                                        90-l CPD 241
Procurement
Bid Protests
W GAO procedures
W W Protest timeliness
W W W Apparent solicitation      improprieties
Protest that solicitation for high speed blade tip grinders should have been limited to grinders
manufactured in the United States or Canada involves an alleged impropriety apparent from the
face of the solicitation and is untimely when not tiled until after award.

Page 71                                                                  Digests-February       1990
Procurement
Bid Protests
n GAO procedures
n W Protest timeliness
n W H Significant issue exemptions
n n E H Applicability
Untimely protest will be considered as raising a significant issue where the protest allegation in-
volves the proper interpretation of a congressional restriction on the use of appropriated funds
which allegedly has been violated by the procuring agency.

Procurement
Competitive Negotiation
n Requests for proposals
n W Commercial products/services
m W 4 Federal supply schedule
m W W n Classification
Determination as to proper Federal Supply Classification (FSQ code for item being purchased is
for the buying agency, and that determination will stand unless it is clearly without a reasonable
basis; where an agency might have classified an item under either of two FSC codes, its determina-
tion that one of the codes is the more appropriate one will not be disturbed where the record re-
flects a reasonable basis for the determination.

B-238031, et al., February 27,199O                                              90-l CPD 242
Procurement
Sealed Bidding
n Bonds
m W Justification
N W n GAO review
Procurement
Specifications
m Minimum needs standards
n n Competitive restrictions
N W n GAO review
Protests that bonding requirements in solicitations are unduly restrictive of competition are with-
out merit where agency required bonds to assure continuous provision of mechanical and operat-
ing services in buildings occupied by federal agencies, and protester does not establish that the
determinations to require bonds were unreasonable or made in bad faith.

B-238039.2, February 27,199O                                                    90-l CPD 243
Procurement
Bid Protests
W GAO procedures
q H Protest timeliness
H H H Apparent solicitation     improprieties
Protest challenging alleged solicitation impropriety in request for quotations (RF@ is untimely
when received in General Accounting Office after 5:30 p.m. on the RFQ’s closing date.

Page 72                                                                 Digests-February      1990
Bz232139.5, February 28,199O                                                      90-l CPD 244
Procurement
Competitive Negotiation
n Requests for proposals
n n Cancellation
4 H n Justification
n n n W Competition enhancement
An agency may cancel a negotiated procurement based on the potential for increased competition
or cost savings.

Procurement
Competitive Negotiation
n Requests for proposals
n W Cancellation
W W q Justification
H W W W GAO review
Solicitation for the lease of 366,700 square feet of office space may be canceled where the agency’s
need for space has significantly changed, even if this reason was not the original reason for cancel-
ing the procurement.

Procurement
Bid Protests
n GAO procedures
n W Preoaration costs
Procurement
Competitive Negotiation
W Offers
W H Preparation costs
Claim for costs for preparing a revised offer and protest costs is denied where cancellation of solic-
itation was proper, and there is no indication that agency acted improperly.

B-235761.5, February 28,199O                                                      90-l CPD 245
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
W H W Reconsideration
Request for reconsideration of decision affirming prior dismissal on timeliness grounds and dis-
missing subsequent protest on grounds that protester was not an interested party is denied be-
cause significant issue exception raised in reconsideration applies only to timeliness requirements
and is not an exception to the requirement that the protester be an interested party within the
meaning of the General Accounting Of&e’s Bid Protest Regulations.




Page 73                                                                   Digests-February      1990
B-237151.2, February 28.1990                                                      90-l CPD 546
Procurement
Sealed Bidding
W Contract awards
W n Multiple/aggregate      awards
Procurement
Sealed Bidding
H Invitations for bids
n n Defects
W n n Evaluation criteria
n W n n Pricing
Where an invitation for bids permits multiple awards and states that award will be based on the
lowest overall cost to the government, a single award at a price more than the total of two awards
plus the administrative costs for two contracts is improper. The Competition in Contracting Act of
1984 requires agencies to evaluate sealed bids based solely on the factors stated in the solicitation
and to make award considering only price and price-related factors included in the solicitation.

B-237466, February 28,1990***
Procurement
Socio-Economic Policies
4 Preferred products/services
n W Domestic products
W W H Interoretation
Procurement
Socio-Economic Policies
n Preferred products/services
n W Foreign/domestic product distinctions
Domestically performed processing operations on imported horsehair do not constitute “manufac-
turing” for purposes of the Buy American Act, 41 U.S.C. $!1Oa et seq. (Supp. IV 1986), since they do
not result in a fundamental change to the foreign component.

Procurement
Socio-Economic Policies
n Preferred products/services
n W Domestic sources
n W W Foreign products
n W n n Price differentials
Since overhead and profit are not a part of the test to determine whether the cost of domestic
components exceeds 50 percent of the cost of all components for purposes of the Buy American
Act, 41 U.S.C. 0 10a et seq. (Supp. IV 1986), protester, whose foreign component costs are greater
than its domestic component costs, is not entitled to a preference under the act.




Page 74                                                                  Digests-February      1990
Bz237844, February 28,199O                                                      90-l CPD 248
Procurement
Specifications
W Brand name/equal specifications
W W Equivalent products
W W W Salient characteristics
W W W W Descriptive literature
Where request for proposals specified an acceptable brand name product and permitted offers of
alternate products identical to or completely interchangeable with the specified product, agency
properly rejected alternate product offered by protester which did not have certain physical char-
acteristics of the specified item and was not the functional equivalent of it.

Procurement
Bid Protests
W GAO procedures
W W Protest timeliness
W W W Apparent solicitation     improprieties
Protest that item description should have incorporated American National Standards Institute
standard rather than specifying an acceptable brand name product and permitting offers of alter-
nate products interchangeable with the specified one is dismissed as untimely where not filed
prior to the closing date for receipt of proposals.

B-237978, February 28,199O                                                      90-l CPD 249
Procurement
Competitive Negotiation
W Contract awards
W W Government delays
W W W Procedural defects
Allegation of unreasonable delay in awarding contract pertains to a procedural matter which does
not provide a basis of protest.

Procurement
Bid Protests
W GAO procedures
W W Protest timeliness
n n W lo-day rule
Protest that contracting officer misused price reasonableness as a negotiation basis is untimely
where raised more than 10 working days after protester became aware of protest basis.

Procurement
Bid Protests
W Allegation substantiation
W W Lacking
W W W GAO review
Where protester effectively withdraws a particular line item from consideration during negotia-
tions and agrees to a reduced maximum order limitation (MOL) on other line items, allegation
that agency “refused” to accept its offer for first line item and “forced” it to accept the MOL for
the latter items, fails to state a valid basis for protest.

Page 15                                                                 Digests-February      1990
                                                                                                  f
B-238622,
Procurement
Bid Protests
W Allegation substantiation
W W Burden of oroof
               -
Procurement
Bid Protests
W Definition
Protest consisting of a copy of a letter to a contracting officer, without any further explanation, is
dismissed where the submission fails to set forth a detailed statement of the legal and factual
grounds of the protest as required by General Accounting Offke Bid Protest Regulations.




Page 76                                                                   Digests-February      1990