oversight

Digests of Decisions of the Comptroller General of the United States, Vol. I, No. 7

Published by the Government Accountability Office on 1990-04-01.

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

         ;

Current GAO Officials


Comptroller General of the United States
Charles A. Bowsher

Deputy Comptroller General of the United States
Vacant

Special Assistant to the Comptroller   General
Milton J. Socolar

General Counsel
James F. Hinchman

Deputy General Counsel
Vacant




Page i
                                                  ?
                                                        r

Contents                            I     :   1

                                                        ...
Preface                                                111

Table of Decision Numbers                               iv
Digests
  Appropriations/Financial   Management                     1
  Civilian Personnel                                     2
  Military Personnel                                     7
  Miscellaneous Topics                                   8
  Procurement                                         . -9




Page ii
Preface


This publication is one in a series of monthly pamphlets entitled “Digests of
Decisions of the Comptroller General of the United States” which have been
published since the establishment of the General Accounting Office by the
Budget and Accounting Act, 1921. A disbursing or certifying official or the head
of an agency may request a decision from the Comptroller General pursuant to
31 U.S. Code 0 3529 (formerly 31 U.S.C. $9 74 and 82d). Decisions concerning
claims are issued in accordance with 31 U.S. Code 9 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
                                                                                              I      r


Table of Decision Numbers


B-208159.21, April 4, 1990                                   14 B-237264.2, April 18, 1990          30
B-226006.2, April 27, 1990                                   44 B-237278.4, April 23, 1990          34
B-229373, B-232443, April 4,                                    B-237369.2, April 10, 1990          22
1990***                                                       2 B-237377.2, April 26, 1990          43
B-229605.2, B-229911, April 13,                                 B-237411.2, April 25, 1990          39
1990                                                         26
                                                                B-237567, April 13,1990***           3
B-230318, April 18,1990***                                    7
                                                                B-237598.2, B-237599.2, April 17,
B-230492.2, April 2, 1990                                     7 1990                                29
B-230545.2. Amil 19. 1990                                     8 B-237622, April 2,199O               2
B-230580.5, April 26,1990***                                 42 B-237667, April 27,199O              5
B-233397, April 27,1990* * *                                  5 B-237716.2, April 3, 1990***        10
B-233697.3, April 25, 1990                                   38 B-237758.2, April 24, 1990          35
B-233796.4. Auril3. 1990                                     10 B-237825, April 27,199O             44
B-234476, April 23, 1990* * *                                 4 B-237865, April 3,1990* * *         11
B-235742, April 24,199O                                      34 B-237868, April 2,199O               9
B-236160.2, April 11,199O                                    24 B-237900, April 3,199O              12
B-236266.5, April 10, 1990                                   22 B-237908, April 18,199O              4
B-236564.3, April 4, 1990                                    14 B-237910, April 5, 1990             16
B-236570, April 13,199O                                       3 B-237925, B-238769, April 10,
B-236597.3. Ami 5. 1990                                      15 1990                                23
B-236873.2, April 5, 1990                                    16 B-237938, April 2, 1990***           9
B-236896.2, April 20, 1990                                   32 B-237955.2, April 24,1990***        35
B-236927, April 25, 1990                                     39 B-237956, April lo,1990             23
B-237068.3, April 26, 1990                                   42 B-237960, April 5,199O              17
B-237201.4. Amil 5. 1990                                     16 B-237965, April 3,1990***           12
B-237240, April 9,199O                                        1 B-237968, April 3,199O              12
B-237240, April 9,199O                                        8 B-237981.3, April 24, 1990          36
B-237249.2, April 16, 1990                                   27 B-237986, B-237986.2, April 16,
                                                                1990                                28


***(notes   published   decisions)   Cite published   decisions   as 69 Camp. Gem-




Page iv
              1
t

    Table of Decision Numbers




                                 Page                                Page
    B-238919, April 13, 1990      27    B-239119.2, April 25, 1990    42
    B-238926.2, April 25,199O     41    B-239136, April 12,199O       25
    B-239007, April 13, 1990      27    B-239208, April 25,199O       42
    B-239080.2, April 16, 1990    29    B-239353, April 26, 1990      43




    Page vi
                                                                      P
                                                                               I

Table of Decision Numbers




B-237987, April 3, 1990              13 B-238208, April 5, 1990           19
B-237997. Amil 16.1990               28 B-238214.2, April 5, 1990         19
B-238008, B-238008.2, April 18,         B-238216, April 5,1990***         19
1990                                 30 B-238226.2, April 25, 1990        40
B-238010.2 , April 5, 1990***        17 B-238244, April 12,199O           25
B-238015, April 13,199O              26 B-238270, April 24,199O           37
B-238027, April 5, 1990***           18 B-238289, April 24,199O           38
B-238049. Am-i1 20. 1990             33 B-238290, April 20, 1990***       33
B-238057.2. Aoril 11. 1990           24 B-238290, April 20, 1990***        8
B-238059, April 25,199O              39 B-238309, April 5,199O            20
B-238090, April 5, 1990***           18 B-238316, April 18,199O           31
B-238100, April 17,199O              29 B-238320, April 26,199O           43
B-238103. Amil4. 1990                14 B-238333, April 6, 1990           22
B-238106, B-238257, April 27,           B-238334, April 5,199O            20
1990***                              44
                                        B-238377, April 18,199O           31
B-238109, April 25,199O               5
                                        B-238428, April 5,199O            21
B-238115.2, April lo,1990            23
                                        B-238430, April 4,199O            15
B-238137. Am-i1 27. 1990             45
                                        B-238450, April 24, 1990          38
B-238142, B-238143, April 11,
1990                                 25 B-238464, April 25, 1990          40
B-238159, April 23,199O              34 B-238484, April 5,199O            21
B-238162, April 13,1990***           26 B-238507.2, April 25, 1990        41
B-238168, April 4, 1990              15 B-238509, April 9,199O             2
B-238177, et al., April 18, 1990     31 B-238582, April 25,199O           41
B-238182.3. B-238182.5.I Aoril 10.      B-238594.2, April 19, 1990        32
                           a
1990       ’                         24 B-238612, April 16,199O            7
B-238183, April 24,199O              37 B-238759, April 13, 1990           3
B-238184. Am-i1 30. 1990             45 B-238829, April 4, 1990           15
B-238191, April 20,199O              33 B-238877, April 5, 1990           21




Page v
Appropriations/Financial
Management


B-237240, April 9,199O
Appropriations/Financial            Management
Federal Assistance
n Grants
n n Cooperative agreements
W n H Equipment
W W W H Property disposal
The appropriate disposition of equipment purchased with U.S. funds provided by the Agency for
International Development (AID) to aid the Nicaraguan Resistance depends upon the terms of the
assistance instruments between AID and the recipients of the funds. The two contracts in question
provide that equipment should be turned over to AID on termination or completion of the con-
tracts or disposed of in accordance with AID’s instructions. The grant agreement and cooperative
agreement, however, vest title in the U.S.-funded equipment in the recipient organization, subject
to certain restrictions on the disposition of equipment with an appraised value of $1,000 or more.




Page 1                                                                     Digests-April    1990
                                                                                       I
                                                                                               I
Civilian Personnel


B-237622, _ April
             -    2,199O
Civilian Personnel
Compensation
n Overpayments
n n n Debt collection
n n n I Waiver
This summary letter decision addresses well established rules which have been discussed in previ-
ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to
decisions indexed under the above listed index entry.

B-229373, B-232443, April 4,1990***
Civilian Personnel
Compensation
n Overtime
n n Eligibility
n n n Travel time
Two Navy employees are not entitled to overtime or compensatory time for time spent in travel
outside normal work hours to ships in response to messages requesting technical assistance to cor-
rect equipment breakdowns. The employees have not presented sufficient evidence or documenta-
tion which would indicate that travel was of an immediate official necessity and to an event that
was unscheduled and administratively    uncontrollable so as to permit payment under 5 U.S.C.
$5542 (1988). The burden of proof is upon the claimants to establish the liability of the United
States and the claimant’s right to payment.

B-238509, April 9,199O
Civilian Personnel
Compensation
n Fringe benefits
n n Health insurance
n n n Insurance premiums
n W n n Underdeductions
A new temporary Schedule C employee who was erroneously excluded from the Federal Employ-
ees Life and Health Benefits Programs for approximately 5 months may not be reimbursed for the
difference in the cost of premium payments she made for private life and health insurance cover-
age during that period.




Page 2                                                                      Digests-April    1990
,        t
B-236570, April 13,199O
Civilian Personnel
Relocation
n Travel expenses
H n Rental vehicles
n n n Reimbursement
Civilian Personnel
Travel
H Advances
n n Overpayments
n n H Debt collection
n n n n Waiver
A transferred employee was issued orders erroneously authorizing reimbursement for rental car
expenses at his new duty station while awaiting authorized shipment of a privately owned vehicle,
and was given a travel advance. Payment of rental car expenses at a new permanent duty station
while awaiting arrival of one’s privately owned vehicle is not authorized under 5 U.S.C. $5’724a
(1988). After he incurred expenses in reliance on the erroneous orders the error was discovered.
Repayment of the travel advance to the extent of the amount specifically authorized for rental car
expenses is waived under 5 U.S.C. 9 5584, since the employee actually spent the advance in good
faith reliance on the erroneous travel orders.

B-237567, April 13,1990***
Civilian Personnel
Travel
n Temporary    duty
n n Return travel
n n n Administrative    discretion
A construction employee who is required to perform long periods of temporary duty away from his
official station and does not maintain a permanent residence at his official station may be reim-
bursed for the expenses of periodic, authorized return travel for nonworkdays to his permanent
residence, not to exceed the constructive cost of travel to his official station.

B-238759, April 13,199O
Civilian Personnel
Travel
n Bonuses
n H Acceptance
n n n Propriety
Presidential Exchange Executives may not personally retain frequent flyer mileage credits since
their travel expenses are paid for out of appropriated funds, and therefore are the property of the
government.




Page 3                                                                      Digests-April     1990
B-237908, April l&l990
Civilian Personnel
Travel
W Overseas travel
n 4 Tour renewal travel
n fl n Reimbursement
n W n W Amount determination
The Forest Service properly limited reimbursement for an employee’s Overseas Tour Renewal
Agreement Travel to the less-costly actual expenses he incurred for travel between his overseas
post of duty and the location indicated on his travel authorization as an alternate, rather than the
constructive cost of returning to his actual place of residence. The Federal Travel Regulations,
para. Z-Mb(2)(c), provides that the cost payable by the government for travel to the alternate lo-
cation is restricted to the cost actually incurred and may not exceed the constructive cost of travel
to the actual place of residence.

B-234476, April 23,1990***
Civilian Personnel
Relocation
n Residence transaction      expenses
W n Reimbursement
n W m Eligibility
Employee was transferred from Columbus to Dayton and then back to Columbus within 1 year.
She sold her Columbus residence within 1 year from effective date of first transfer and prior to
offrcial notice of retransfer. Subsequent transfer does not extinguish the right to reimbursement
created by the initial transfer. Employee is entitled to reimbursement of residence sale expenses
incident to initial transfer to Dayton. Further, employee is entitled to residence purchase expenses
incident to the retransfer to Columbus.

Civilian Personnel
Relocation
n Temporary quarters
n W Actual subsistence expenses
n W n Reimbursement
W W H W Eligibility
A transferred employee claimed temporary quarters subsistence expenses for herself for 4 days
when inclement weather prevented her from returning to her residence at old duty station which
she had not vacated in order to allow daughter to complete school session. Her claim is disallowed
since she had not vacated her old residence as required by the Federal Travel Regulations before
temporary quarters expenses may be reimbursed.

Civilian Personnel
Relocation
n Temporary quarters
H W Determination
H W n Criteria
Employee whose old and new residences were in Columbus occupied temporary quarters for 30
days in connection with successive transfers. She acquired a new permanent residence but was
unable to occupy new residence immediately because of a holdover provision allowing the sellers
to remain in possession. Paragraph Cl3006 of the Joint Travel Regulations, volume 2 (FTR para.
2-5.2h), which generally prohibits payment of TQSE for short distance transfers, is not a bar to
payment since this provision was not intended to apply to situations where the old residence sale

Page 4                                                                        Digests-April     1990
is ‘under one transfer order and the new residence purchase is under another order as the timing
of the sale and purchase are no longer within the employee’s control.

B-238109, April X$1990
Civilian Personnel
Relocation
n Overseas personnel
W W Household goods
n n W Shipment
n n W W 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-233397, April 27,1990***
Civilian Personnel
Relocation
H Travel expenses
H H Privately-owned    vehicles
n W n Mileage
Civilian Personnel
Relocation          ,’
n Travel expensk
W W Reimbursement
n W 4 Eligibiky:
An employee; permanently transferred to the place where he was on a temporary duty assign-
ment, returned to his old duty station by privately owned vehicle to retrieve stored household
goods. The employee is entitled to en route per diem and mileage expenses for the round-trip since
relocation travel by privately owned vehicle is deemed advantageous to the government under the
Federal Travel Regulations, para. 2-2.3a.

B-237667, April 27,199O
Civilian Personnel
Relocation
W Expenses
n W Reimbursement
W n n Eligibility
n n n 4 Manpower      shortages
Civilian Personnel
Relocation
W Residence transaction      expenses
n n Eligibility
n n n Administrative     determination
n W n n Errors
An individual was appointed from the private sector to a manpower shortage category position
with the national Oceanic and Atmospheric Administration. Instead of being limited to the travel
and transportation expenses authorized by 5 U.S.C. 0 5723 (19881,his travel authorization errone-
ously permitted him real estate expenses as though he was transferring employee. The claim in
excess of the limited entitlements may not be paid. However, since the real estate expenses in-

Page 5                                                                      Digests-April    1990
curred were significant and the individual acted in good faith reliance on erroneous travel ordeks,
we submit the matter to the Congress for favorable consideration under the Meritorious Claims
Act, 31 U.S.C. $3702(d) (1988).




Page 6                                                                      Digests-April     1990
B-230492.2, April 2, 1990
Military Personnel
Pay
n Readjustment      pay
Military    Personnel
Pay
n Separation     expenses
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-238612, April 16,199O
Military Personnel
Travel
n Temporary duty
n n Travel expenses
n n n Reimbursement
n BBBFines
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-230318, April 18,1990***
Military Personnel
Pay
n Variable housing allowances
n W Amount determination
A member who is entitled to Basic Allowance for Quarters (BAQ) at the with-dependent rate,
based on his payment of child support, and who is also entitled to a Variable Housing Allowance
(VHA), may not receive VHA at the higher with-dependent rate solely by reason of a separation
agreement that also awards “primary custody” of dependent children to the former spouse, but
with “temporary” and “physical ” “secondary custody” to the member at other times. However,
the member is entitled to VHA at the with-dependent rate where he can demonstrate that he had
actual physical custody of the children for periods in excess of 3 months. The computation of such
VHA should take into consideration only the member’s direct housing costs and not the costs in-
curred by the former spouse.




Page 7                                                                      Digests-April    1990
                                                                                             ,
                                                                                                        L




Miscellaneous Topics


B-237240. ADril9.1990
             T   L



Miscellaneous Topics
National Security/International       Affairs
n Cooperative agreements
n n Equipment
n H n Property disposal
The appropriate disposition of equipment purchased with U.S. funds provided by the Agency for
International Development (AID) to aid the Nicaraguan Resistance depends upon the terms of the
assistance instruments between AID and the recipients of the funds. The two contracts in question
provide that equipment should be turned over to AID on termination or completion of the con-
tracts or disposed of in accordance with AID’s instructions. The grant agreement and cooperative
agreement, however, vest title in the U.S.-funded equipment in the recipient organization, subject
to certain restrictions on the disposition of equipment with an appraised value of $1,000 or more.

B-230545.2, April 19, 1990
Miscellaneous Topics
Science/Technology
n Scientific experiments
n n Animals
n BBUse
n n n n Restrictions
The Public Health Service Act (42 U.S.C. 0 201 et seq.), the Animal Welfare Act (AWA) (7 USC.
9 2131 et seq.), and applicable regulations do not prohibit the National Institutes of Health (NIH)
from reviving experiments on monkeys first used in medical research by a grantee whose grant
was terminated. NIH’s proposal to euthanize the monkeys does not violate the AWA’s prohibition
against multiple experimentation because the animals will not be allowed to recover.

B-238290, April 20,1990***
Miscellaneous Topics
Environment/Energy/Natural         Resources
n Environmental     protection
n n Recycled materials
HBBUse
n n n n Cost increase
Award to lowest bidder offering to comply with mandatory solicitation requirement for 50 percent
waste paper content, even though there was lower bid not meeting requirement, is consistent with
Resource Conservation and Recovery Act of 1976 and Environmental Protection Agency imple-
menting Guideline; although narrative accompanying Guideline indicates EPA’s view that higher
price for paper meeting minimum waste paper content requirement is unreasonable, neither stat-
ute nor Guideline prohibits paying such a premium.

Page 8                                                                       Digests-April       1990
            I
   ,




Procurement


B-237868. Auril2.1990                                                           90-l CPD 346
Procurement
Competitive      Negotiation
W Contract awards
W H Initial-offer    awards
W n W Propriety
n W H n Price reasonableness
Protest is sustained where, due to improper cost evaluation, the record does not clearly demon-
strate that agency made award on initial offers to low cost offeror.

Procurement
Competitive      Negotiation
n Contract awards
W W Initial-offer    awards
W n W Propriety
W W H W Price reasonableness
Procurement
Competitive    Negotiation
n Offers
n W Evaluation    errors
W W n Evaluation     criteria
W W n n Application
Agency improperly accepted initial offer from firm which proposed to compensate certain employ-
ees at an hourly rate which was less than the minimum rate prescribed by the Department of
Labor’s wage rate determination.

B-237938, April 2,1990***                                                       90-l CPD 347
Procurement
Contractor Qualification
n Responsibility
H n Contracting   officer findings
W H H Negative determination
n n H n Prior contract performance
Procurement
Contractor Qualification
W Responsibility   criteria
W n Organizational      experience
Agency may properly consider manufacturing experience of parent corporation in finding that
awardee subsidiary corporation met definitive responsibility criterion (5-year manufacturing expe-

Page 9                                                                      Digests-April    1990
rience requirement), where bid stated that product would be manufactured at parent corporatibn’s
facilities.

Procurement
Sealed Bidding
n Bids
n n Responsiveness
n n W Determination      criteria
Where the identity of the bidder is clear from the bid as submitted and there is no indication that
the bidder will not perform in accordance with the requirements of the solicitation, the bid is re-
sponsive.

B-233796.4, April 3, 1990                                                          90-l CPD 350
Procurement
Bid Protests
n GAO procedures
H n Protest timeliness
n n n lo-day rule
General Accounting Office has no basis to question agency’s decision to permit upward correction
of low bid where the work sheets the lowest bidder submitted to support its allegation of mistake
establish the mistake and the claimed intended bid by clear and convincing evidence.

B-237716.2, April 3,1990***                                                        90-l CPD 351
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation      improprieties
Protester’s objection to the use of negotiated rather than sealed bid procedures is untimely when
filed after award rather than prior to the closing date for receipt of proposals.

Procurement
Competitive   Negotiation
n Contracting   officer duties
n n Information     evaluation
n n n Fairness
While contracting officer, acting in good faith, may ordinarily rely on information provided by
transportation rate specialists in calculating transportation costs on f.o.b. origin offers, he may not
automatically do so if it leads to an improper or unreasonable evaluation of the offered prices.

Procurement
Competitive    Negotiation
n Multiple offers
n n Acceptance
n n n Propriety
Multiple offers from commonly owned and/or controlled companies may be accepted unless the
acceptance of such offers is prejudicial to the interests of the government or other offerors.

Page 10                                                                         Digests-April     1990
4

    Procurement
    Competitive Negotiation
    n Offers
    n n Evaluation    errors
    q q q Non-prejudicial     allegation
    Even though evaluation. of transportation costs on f.o.b. origin supply solicitation appears unrea-
    sonable, protest against the evaluation is denied, where the protester would not be in line for
    award, even assuming the application of its own transportation calculations.

    Procurement
    Socio-Economic       Policies
    n Small businesses
    q n Size status
    E q q Self-certification
    q n n n Good faith
    Contracting officer properly accepted, at face value, the awardee’s self-certification that it was a
    small business, in the absence of information that reasonably impeached the awardee’s certifica-
    tion.

    B-237865, April 3,1990***                                                        90-l CPD 352
    Procurement
    Competitive Negotiation
    q Offers
    n n Evaluation
    n q q Cost estimates
    Contention that where solicitation contemplates award of a fixed-price, time and materials con-
    tract and requires the submission of cost and pricing data, agency must perform a cost analysis, is
    denied where adequate price competition was obtained, permitting agency to waive further sub-
    mission of such cost data and perform a price analysis in lieu of a cost analysis.

    Procurement
    Competitive Negotiation
    n Offers
    n n Evaluation
    q n n Personnel
    Where none of the personnel required to perform the statement of work were “professional em-
    ployees” as defined in the Federal Acquisition Regulation (FAR), contracting officer was not re-
    quired to evaluate proposed professional employee compensation as specified in the standard FAR
    clause regarding evaluation of such compensation.

    Procurement
    Contract Management
    n Contract administration
    n q Contract terms
    n n q Compliance
    W q H n GAO review
    Whether awardee actually complies with its contractual obligations is a matter of contract admin-
    istration that is not reviewable under General Accounting Office’s bid protest function.

    Page 11                                                                      Digests-April     1990
Procurement
Contractor    Qualification
n Responsibility
W W Contracting     offker      findings
n n q Affirmative determination
n q E W GAO review
General Accounting Office will not review a protest of an affirmative determination of responsibil-
ity absent a showing that it may have been made fraudulently or in bad faith, or that definitive
responsibility criteria set out in the solicitation were not met.

B-237900, April 3,199O                                                           90-l CPD 353
Procurement
Sealed Bidding
q Low bids
n n Error correction
n n n Price adjustments
n n n W Propriety
General Accounting Office has no basis to question agency’s decision to permit upward correction
of low bid where the work sheets the lowest bidder submitted to support its allegation of mistake
establish the mistake and the claimed intended bid by clear and convincing evidence.

B-237965, April 3,1990***                                                        90-l CPD 354
Procurement
Socio-Economic   Policies
H Small business set-asides
n MUse
W H n Procedural      defects
Agency decision not to set aside procurement for small disadvantaged business (SDB) concerns is
unreasonable where agency made no effort to ascertain SDB. interest and capabilities and it ap-
pears that the agency reasonably should have expected to obtain offers from at least two responsi-
ble SDBs and make award at a price not exceeding the fair market price by more than 10 percent.

B-237968, April 3,199O                                                           90-l CPD 355
Procurement
Sealed Bidding
n Bids
n n Errors
n 4 n Error substantiation
Agency’s decision to reject an obviously mistaken bid was reasonable where the bidder failed to
submit its original work sheets to support its bid calculations and there is reasonable doubt that
the bid price included all costs associated with the work required by the solicitation.




Page 12                                                                      Digests-April     1990
B-23798;, April 3,199O                                                              90-l CPD 356
Procurement
Competitive    Negotiation
W Offers
q R Evaluation
W n 0 Options
W q W H Prices
Where solicitation provided that offers would be evaluated for award “by adding the total price for
all options to the total price for the basic requirement,” contracting agency reasonably included in
the evaluation the prices for option quantities of artillery fi.rz.esthat were not included in the basic
requirement.

Procurement
Competitive      Negotiation
n Offers
W W Evaluation
n n W Technical       acceptability
Where evaluation     under technical evaluation criteria for proposed facilities and production ap
preach was based     on detailed information in proposal and in-plant survey, protester’s disagree-
ment with agency     determination that awardee’s approach was acceptable does not establish that
the determination    was unreasonable.

Procurement
Competitive Negotiation
H Offers
H W Prices
n mHRent
H q q H Government property
In calculating imputed rental evaluation factor to be added to offeror’s price to account for rent-
free use of government-furnished property, agency reasonably relied upon period of use entered by
offeror in evaluation clause, rather than authorized period of use on delivery schedule, where SO-
licitation provided for evaluation based on period entered by offeror and where offeror would be
required to pay rent if its use exceeded entered period.

Procurement
Competitive      Negotiation
n Unbalanced offers
W q Materiality
n n 0 Determination
H 0 q H Criteria
Awardee’s offer of base and option quantities is not subject to rejection as materially unbalanced
where there is no showing that the offer is unbalanced or that the award will not result in lowest
ultimate cost to government.




Page 13                                                                          Digests-April     1990
B-208159.21, April 4, 1990
Procurement
Bid Protests
i Forum election
n n Recommendation
Procurement
Bid Protests
n GAO procedures
W H Interested parties
General Accounting Office (GAO) supports a proposed bill to expand the class of interested parties
eligible to file bid protests with GAO under the Competition in Contracting Act to include federal
employees affected by a contracting agency’s decision to contract out for services. In view of the
possible existence of several other forums for the resolution of contracting out disputes, GAO rec-
ommends that one forum be selected so that resolution of decisions to contract out can be accom-
plished quickly and efficiently.

B-236564.3, April 4, 1990                                                          90-l CPD 357
Procurement
Bid Protests
W GAO procedures
I H GAO decisions
n W W Reconsideration
Request for reconsideration is denied where protester fails to show any error of law or fact in
prior decision holding that agency may accept a bid that did not include a signed Certificate of
Procurement Integrity at the time of bid opening since, even assuming the bid was nonresponsive
for failure to comply with the certification requirement, acceptance of the bid would serve, the
actual needs of the government and would not prejudice other bidders.

B-238103. Auril4.1990                                                              90-l CPD 358
Procurement
Competitive      Negotiation
n Offers
n q Evaluation
W W I Technical      acceptability
Protest that proposal was improperly rejected is denied where review of agency’s technical evalua-
tion, which concluded that protester’s proposal was technically unacceptable, shows that evalua-
tion was reasonable and consistent with solicitation’s evaluation scheme.

Procurement
Competitive    Negotiation
H Requests for proposals
n q Cancellation
n 0 n Resolicitation
0 n n H Propriety
Cancellation of request for proposals set aside for small business and resolicitation on unrestricted
basis are proper where all small business proposals are found technically unacceptable.

Page 14                                                                        Digests-April     1990
+
B-238;68, April 4,199O                                                       90-l CPD 359
Procurement
Sealed Bidding
n Bids
n n Preparation   costs
Where agency negligently prepares government specifications for a procurement which results in
agency cancellation of invitation for bids, after bid opening, claim for bid preparation costs is
denied since mere negligence or lack of due diligence by the agency standing alone, does not pro-
vide a basis for the recovery of bid preparation costs.

B-238430, April 4,199O
Procurement
Contract Management
n Contract modification
n n Leases
n n W Propriety
Real property owner who leases property to Postal Service seeks increase in rent due to increased
costs of maintaining property. If further adequate consideration flows to Postal Service from
owner to support contract modification, then rent conceivably could be increased; however, such a
matter is for negotiation solely between Postal Service and the property owner.

B-238829, April 4,199O
Procurement
Contract Management
n contract administration
n W Convenience termination
n n H Federal procurement   regulations/laws
n n W n Revision
General Accounting Office has no objection to Federal Acquisition Regulation (FAR) case NO.
90-07, a proposal to increase or delete a number of dollar-value thresholds in FAR Part 49, which
concerns contract terminations.

B-236597.3, April 5, 1990                                                      90-l CPD 360
Procurement
Bid Protests
n GAO procedures
n W GAO decisions
n n n Reconsideration
Procurement
Bid Protests
W GAO procedures
n n Interested parties
General Accounting Office affirms its prior dismissal of a protest allegation challenging contract
award where protester previously was properly found technically unacceptable and is therefore
not an interested party since it would not be in line for award if allegation were resolved in its
favor.

Page 15                                                                     Digests-April    1990
                                                                                                  1

B-236873.2, April 5, 1990                                                       90-l CPD 361
Procurement
Bid Protests
W GAO procedures
W n GAO decisions
W H W Reconsideration
Request for reconsideration of prior decision, based on General Accounting Office’s failure to con-
duct a facMnding conference before deciding the protest, is denied because the fact-finding proce-
dure is used only when a material factual dispute cannot be resolved on the written record and
the protest allegations were resolvable on the written record.

B-237201.4, April 5, 1990                                                       90-l CPD 362
Procurement
Bid Protests
W GAO procedures
W n GAO decisions
n n W Reconsideration
Request for reconsideration is denied where protester fails to show any error of fact or law which
warrants reversal or modification of initial decision but essentially reiterates arguments consid-
ered and rejected in initial decision.

B-237910, April 5,199O                                                          90-l CPD 363
Procurement
Noncompetitive      Negotiation
n Contract awards
n W Sole sources
n n n Justification
n W n n Urgent needs
Procurement
Noncompetitive    Negotiation
n Use
W n Justification
n W n Urgent needs
Agency reasonably limited a procurement of hospital generators to the one source known not to
require extensive first article testing where record shows that a continuing supply of items was
urgently required to protect lives and that no other sources, including the protester, could make
timely delivery.




Page 16                                                                      Digests-April    1990
“Prochement
Noncompetitive      Negotiation
n Contract awards
n n Sole sources
n n n Justification
n n n n Urgent needs
Procurement
Noncompetitive    Negotiation
n Use
n n Justification
n n n Urgent needs
Agency properly elected not to synopsize a solicitation restricted to the one source known to be
able to meet urgent delivery requirements; protester, who could not meet urgent delivery require-
ments, was not prejudiced by a failure to synopsize the solicitation or to timely synopsize contract
award.

B-237960, April 5,199O                                                           90-l CPD 364
Procurement
Competitive    Negotiation
n Discussion
n n Adequacy
n n n Criteria
Discussions are meaningful where discussion questions should reasonably have led firm into defi-
cient areas of its proposal.

Procurement
Competitive Negotiation
n Offers
n n Competitive   ranges
n n n Exclusion
n n n n Discussion
Firm was reasonably eliminated from competitive range where, after round of discussions, firm’s
proposal continued to have significant deficiencies first identified during initial evaluation.

B-238010.2 , April 5,1990***                                                     90-l CPD 365
Procurement
Contractor Qualification
n Responsibility
n n Contracting   officer findings
n n n Negative determination
n n n n GAO review
Protester properly was found nonresponsible where it failed to provide sufficient information to
permit finding that individual sureties on its bid bond were acceptable and the record shows the
contracting officer’s nonresponsibility determination was reasonable.


Page 17                                                                      Digests-April     1990
Procurement
Sealed Bidding
n Bid guarantees
n n Sureties
n n n Acceptability
Even though an individual surety may have been accepted by a contracting agency, another
agency is not required to accept the surety where it reasonably finds the surety to be unacceptable
based on information submitted to it.

B-238027, April 5,1990***                                                        90-l CPD 366
Procurement
Contract Management
n Contract administration
n n Convenience termination
n n n Competitive   system integrity
Where timely size protest is filed after small business-small purchase set-aside award and awardee
does not contest Small Business Administration finding that it is other than a small business,
intent of Small Business Act and integrity of competitive system is served by terminating the con-
tract and, if otherwise appropriate, making award to only small business quoter.

B-238090. Auril 5.1990***                                                        90-l CPD 367
Procurement
Sealed Bidding
n Bids
n n Acceptance time periods
n n n Expiration
Procurement
Sealed Bidding
n Invitations    for bids
n n Cancellation
n n n Justification
Where contracting officer deliberately allowed bid acceptance period to expire without making
award in order to effect cancellation of solicitation which she had determined was warranted, Gen-
eral Accounting Office will review propriety of the decision to cancel.

Procurement
Sealed Bidding
n Invitations    for bids
n n Cancellation
n n W Justification
Contracting agency lacked compelling reason to cancel invitation for bids (IFB) for rental of con-
struction equipment where apparent inconsistency between IFB provisions-which       described cer-
tain requirements in terms of hourly and daily rates, but called for pricing on the basis of daily
and weekly unit rates-did not prejudice any bidder, all bidders understood that daily and weekly
unit pricing was required, they provided such pricing which was evaluated on a common basis,
and an award under the IFB would meet the agency’s actual needs.

Page 18                                                                      Digests-April    1990
’ B-23k208. Am-i1 5.1990                                                         90-l CPD 368
  Procurement
 Sealed Bidding
 n Invitations  for bids
 n W Terms
 n n n Performance     bonds
 Procurement
 Sealed Bidding
 n Justification
 Protest against performance bond requirement in solicitation is denied where agency required
 bond to assure a constant supply of natural gas to naval station, and protester does not establish
 that the determination to require a performance bond was unreasonable.

 B-238214.2, April 5, 1990                                                       90-l CPD 369
 Procurement
 Competitive     Negotiation
 n Contract awards
 n n Propriety
 Protest that contracting agency improperly awarded duplicate contracts to two bidders under solic-
 itation contemplating one award is denied where, although a vendor other than the protester was
 listed inadvertently in the agency’s automated records as the awardee, the agency states that only
 one award (to the protester) was made, and the protester fails to present sufficient evidence to
 substantiate its claim of improper agency action.

 Procurement
 Contract Management
 n Contract performance
 n n GAO review
 Protester’s arguments concerning performance of contract involves contract administration    and is
 not for consideration by the General Accounting Office. 4 C.F.R. 5 21.3(m) (1989).

 B-238216, April 5,1990***                                                       90-l CPD 370
 Procurement
 Bid Protests
 n Agency-level protests
 n n Information    adequacy
 The fact that, under an agency’s protest regulations, an agency-level protest may be untimely or
 the protester may lack interested party status, does not provide a basis for questioning the agen-
 cy’s subsequent determination to undertake corrective action based on information presented in
 connection with the protest.

 Procurement
 Socio-Economic       Policies
 n Preferred products/services
 n n American Indians
 Determination of Bureau of Indian Affairs that joint venture comprised of Indian-owned concern
 and concern not Indian-owned does not qualify as a 51 percent Buy Indian Act concern, as re-
 quired by the solicitation, is not unreasonable where, although the Indian firm controls 51 percent

 Page 19                                                                     Digests-April     1990
of the joint venture, only 55 percent of the Indian firm is owned by Indians and the aggregate        ’
total of Indian ownership of the joint venture therefore amounts to only 28 percent.

B-238309, April E&l990                                                          90-l CPD 371
Procurement
Bid Protests
n Bias allegation
H W Allegation    substantiation
H W W Evidence sufficiency
Protest alleging bias must present convincing evidence, since procurement officials are presumed
to act in good faith.

Procurement
Competitive   Negotiation
n Contract awards
n n Low offers
W W W Propriety
W W W n Competitive     system integrity
It is not permissible to make award to an offeror whose technical proposal may have been lost by
the government prior to opening of proposals; to do so would be inconsistent with protecting the
integrity of the competitive bidding system.

Procurement
Competitive    Negotiation
W Offers
n n Evaluation
W W H Technical acceptability
Protester’s acknowledgment of a solicitation amendment containing agency’s specifications in
itself is not an adequate basis to find its proposal technically acceptable in the absence of a de-
tailed written proposal as required by the solicitation establishing how the protester would meet
the government’s requirements.

B-238334, April 5.1990                                                          90-l CPD 372
Procurement
Contractor    Qualification
W Responsibility/responsiveness      distinctions
H W Approved sources
H n W Compliance time periods
Where solicitation clause provides that qualification of product may be completed up to time of
award, compliance with clause is matter of responsibility, not responsiveness, and detailed infor-
mation on product qualification, if needed, may be provided to agency any time before award.




Page 20                                                                     Digests-April    1990
Procurement
Sealed Bidding
w Bids
n n Responsiveness
n n n Approved sources
n n H n Identification
Failure of bidders to identify a product they were bidding under qualified products requirement
does not render bids nonresponsive where the bidders took no exception to solicitation require-
ment that products be qualified.

B-238428, April 5,199O                                                          90-l CPD 373
Procurement
Sealed Bidding
n Invitations  for bids
n n Amendments
H H H Acknowledgement
n n n n Waiver
Contracting agency properly may accept low bid that failed to acknowledge solicitation amend-
ments making changes that were merely a matter of form, imposing no new legal obligations.

B-238484. AtwilL          1990                                                  90-l CPD 374
Procurement
Bid Protests
n GAO procedures
H n Protest timeliness
H n n Apparent solicitation      improprieties
Protest based upon protester’s knowledge of allegedly improper and allegedly prejudicial best and
final offer request to competitor is untimely where filed more than 10 days after protester learns
of contents of request.

B-238877. Auril5.1990                                                           90-l CPD 375
Procurement
Sealed Bidding
n Below-cost bids
H n Contract awards
n n H Propriety
Protest against submission of an alleged below-cost bid on the basis that it constitutes a “buy-in”
is dismissed since a buy-in is not illegal and does not provide a basis upon which an award may be
challenged.




Page 21                                                                     Digests-April     1990
B-238333, April 6, 1990
Procurement
Contractor   Qualification
n Federal procurement        regulations/laws
n n Revision
Procurement
Contractor   Qualification
n Organizational     conflicts   of interest
n n Corporate ownership
General Accounting Office has no objection to Federal Acquisition Regulation (FAR) case No.
89-82, a proposal to revise FAR section 3.601 to exempt special government employees appointed
as advisors, consultants, or members of advisory committees from the general rule that govern-
ment contracts may not be awarded to government employees or firms they substantially own or
control. GAO suggests, however, that consideration be given to adding a sentence to section 3.601
to make it clear that agencies have the discretion to decline to enter into a contract whenever the
agency determines that such action is necessary to preserve the integrity of the procurement proc-
ess.

B-236266.5, April 10, 1990                                                       90-l CPD 376
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Request for reconsideration is denied where request contains no statement of facts or legal
grounds warranting reversal but mainly restates facts and legal arguments previously considered
by the General Accounting Office.

B-237369.2, April 10. 1990                                                       90-l CPD 377
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Procurement
Socio-Economic       Policies
n Small businesses set-asides
n n Approved sources
n n n Applicability
Prior decision, holding that a bid submitted under a total small business set-aside is nonresponsive
when it is not clear from the bid whether the bidder will comply with the requirement to supply
items manufactured or produced by small business concerns in the United States, is affirmed
where protester fails to show any error of fact or law in prior decision.




Page 22                                                                      Digests-April     1990
*B-237kI25, B-238769, April lo,1990                                             90-l CPD 378
 Procurement
Socio-Economic    Policies
n Small businesses
n n Disadvantaged    business set-asides
n n n Eligibility
n n n n Determination
Department of Defense regulatory requirement that small disadvantaged business (SDB) regular
dealers provide a product manufactured by a small business concern when there is no SDB manu-
facturer in order to be eligible for an SDB evaluation preference in unrestricted procurements is a
reasonable implementation of its broad statutory mandate to award 5 percent of the dollar value
of its contracts to SDB concerns and is within the agency’s authority to impose.

B-237956, April 10, 1990                                                        90-l CPD 379
Procurement
Competitive    Negotiation
n Offers
n n Evaluation
n n n Contingent fees
n n n n Contractor agents
Protest that agency improperly rejected offer based on a contingent fee arrangement is denied
since the agency reasonably found that the contingent fee arrangement of 20 percent of gross sales
was exorbitant when compared to the customary fees paid for similar services.

B-238115.2. Auril 10. 1990                                                      90-l CPD 380
Procurement
Bid Protests
n Bias allegation
n n Allegation    substantiation
n n n Burden of proof
Protest alleging bad faith must present convincing evidence that government officials had a specif-
ic and malicious intent to injure the protester.

Procurement
Bid Protests
n GAO authority
Challenge of agency’s selected Standard Industrial Classification code is not for consideration by
the General Accounting Office, since conclusive authority over this matter is vested in the Small
Business Administration.




 Page 23                                                                     Digests-April    1990
B-238182.3, B-238182.5, April 10, 1990                                          90-l CbD 381’
Procurement
Bid Protests
n GAO procedures
n n Interested parties
n n n Direct interest standards
Protest from offeror which would not be in line for award if the protest were upheld is dismissed
because the protester does not have the requisite direct economic interest required to be consid-
ered an interested party entitled to maintain the protest.

Procurement
Contract Management
n Contract administration
n W Contract terms
n n n Compliance
n n n n GAO review
Protest that awardee may furnish a noncomplying product is dismissed since whether or not a
contractor actually performs in accordance with the solicitation’s requirements is a matter of con-
tract administration that is the responsibility of the contracting agency and is not for consider-
ation by the General Accounting Office under the Bid Protest Regulations.

B-236160.2, April 11, 1990                                                      90-l CPD 382
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Request for reconsideration is denied where protester reiterates arguments which were considered
and rejected in General Accounting Office’s decision, and disagrees with decision, but presents no
argument or information establishing that decision was legally or factually erroneous.

B-238057.2, April 11, 1990                                                      90-l CPD 383
Procurement
Bid Protests
H GAO procedures
n n GAO decisions
n n n Reconsideration
Procurement
Bid Protests
n Subcontracts
n n GAO review
Dismissal of protest against awards by a government prime contractor to subcontractors which
allegedly cannot meet technical requirements for the development of an international aircraft op-
erator database is affirmed, since the General Accounting Office has no jurisdiction to review sub-
contracts awarded by a prime contractor when the subcontract awards are not made “by or for the
government.”

Page 24                                                                      Digests-April    1990
 B-238142. B-238143. Auril 11.1990                                               90-l CPD 384
 Procurement
 Contractor     Qualification
 n Approved sources
 n n First-article     testing
 The fact that the awardee had never passed tests needed to be listed on Qualified Products List
 (QPL) is irrelevant where military specification required purchases of cable assemblies listed on a
 QPL except where, as here, no sources were currently on QPL in which case the assemblies were
 to be purchased on the basis of first article testing.

 Procurement
 Socio-Economic   Policies
 n Preferred products/services
 n n Prisoners
 Purchase of cable assemblies from UNICOR, Federal Prison Industries, Inc., was proper where no
 evidence has been presented to substantiate the allegation that the purchase adversely impacted
 the cable assembly industry. Further, the applicable statutes and regulations do not prohibit pur-
 chasing critical life support items, assuming they are involved here, from UNICOR.

 B-238244, April 12,199O                                                         90-l CPD 385
 Procurement
 Sealed Bidding
 n Bids
 W n Responsiveness
 H n n Descriptive  literature
 n n n n Ambiguous bids
 Where cover letter and descriptive literature render bid ambiguous with respect to compliance
 with solicitation specifications, bid is nonresponsive and must be rejected.

 B-239136, April 12,199O                                                         90-l CPD 386
 Procurement
 Contractor Qualification
 n Responsibility
 n n Information
 n n n Submission time periods
 Protest alleging that bid which did not contain required information concerning the number of
 employees improperly was corrected after bid opening is dismissed because the information did not
 relate to the bidder’s performance obligation and therefore could be furnished at any time prior to
 award.




: Page 25                                                                     Digests-April    1990
B-229605.2. B-229911. Auril 13.1990                                             90-l CPD 387
Procurement
Sealed Bidding
n Invitations    for bids
n n Interpretation
n n n Terms
Procurement
Specifications
n Minimum needs standards
n n Competitive       restrictions
n n n GAO review
Protest alleging that agency’s interpretation of specification which requires the use of recycled
paper in printing certain publications is unduly restrictive of competition is denied where con-
tracting agency and protester agree on the interpretation and the agency has not applied a more
restrictive interpretation under the solicitations in question.

B-238015. Auril 13.1990                                                         90-l CPD 388
Procurement
Contractor Qualification
n Responsibility
n n Contracting   officer findings
n n n Negative determination
n n n n Pre-award surveys
Protest against contracting officer’s negative responsibility determination is denied where the de-
termination was based on the protester’s failure of a preaward test and the record contains docu-
mentation that provides a reasonable basis for the negative test results and the contracting offi-
cer’s determination.

Procurement
Sealed Bidding
n Bids
n n Modification
n n n Interpretation
n n n n Intent
In procurement for printing services, agency cannot ignore portion of bid modification intended to
indicate that bid prices are reversed in determining responsiveness, as reading a bid in this
manner is not consistent with principle that bid, and any accompanying bid modifications, must be
read in its entirety and given a reasonable interpretation in determining responsiveness.

B-238162. Auril 13.1990***                                                      90-l CPD 389
Procurement
Competitive   Negotiation
n Offers
n n Competitive    ranges
n n n Exclusion
n n n n Evaluation     errors
Under request for proposals calling for award to low technically acceptable offerors, agency deter-
mination that protester’s proposal was outside of the competitive range was improper where

Page 26                                                                     Digests-April     1990
d agency’determination was based on proposal’s relative technical ranking, without consideration of
  price, and consequently agency violated Federal Acquisition Regulation 3 15.609(a) (FAC 84-16) in
  establishing the competitive range.

  B-238919, April 13,199O
  Procurement
  Contract Types
  n Subcontracts
  n n Federal procurement        regulations/laws
  n n n Revision
  General Accounting Office has no objection to Federal Acquisition Regulation (FAR) case No.
  90-09, a proposal to revise FAR section 44.201-1(d) and the contract clause at FAR section
  52.244-l effectively to raise from $25,000 to $100,000 the threshold for requiring consent to speci-
  fied types of subcontracts.

  B-239007, April 13,199O                                                             90-l CPD 390
  Procurement
  Bid Protests
  n GAO procedures
  n n Protest timeliness
  n n n Apparent solicitation       improprieties
  Protest that it is impossible for any offeror to meet the delivery schedules and tax assessment-
  related rent adjustment provisions in a solicitation for offers for the lease of office space is untime-
  ly when filed after protester’s best and final offer was rejected for failing to comply with these
  provisions.

  B-237249.2, April 16, 1990                                                          90-l CPD 391
  Procurement
  Bid Protests
  n GAO procedures
  n n GAO decisions
  n W n Reconsideration
  Procurement
  Socio-Economic     Policies
  n Small business set-asides
  n BUse
  n n n Administrative      discretion
  Decision sustaining protest challenging agency’s decision to award to large business which submit-
  ted low quote on small business-small purchase set-aside-based on agency’s finding that 6 percent
  higher quote from small business was unreasonably high-is affirmed on reconsideration where,
  even though price reasonableness was clearly put in issue in the protest, agency gave no explana-
  tion as to why it found small business’s quote unreasonably high, and there is no evidence in the
  record to show that the quote was unreasonably high.




  Page 27                                                                         Digests-April     1990
B-237986. B-237986.2, April 16.1990                                                 90-l CPD 392 -
Procurement
Competitive   Negotiation
n Competitive    advantage
n n Non-prejudicial     allegation
Procurement
Contract Qualification
W Organizational     conflicts of interest
n W Allegation   substantiation
W n n Evidence sufficiency
Contracting agency did not act unreasonably in determining not to exclude a firm, which is per-
forming systems engineering and technical assistance work for another agency, due to an organi-
zational conflict of interest or because of an unfair competitive advantage, where the firm was not
in a position to favor its own capabilities and did not participate in the development of the state-
ment of work.

Procurement
Competitive    Negotiation
W Discussion
4 W Adequacy
n n n Criteria
Contracting agency satisfied the requirement for meaningful discussions where it led an offeror
into the areas of its technically acceptable proposal which the agency considered as reflecting a
less than desirable technical approach.

Procurement
Competitive    Negotiation
W Offers
W n Evaluation    errors
n R n Non-prejudicial      allegation
Protest that agency failed to properly conduct cost evaluation is denied, where protester is not
prejudiced by the evaluation.

B-237997, April 16.1990                                                             90-l CPD 393
Procurement
Competitive    Negotiation
n Hand-carried    offers
n W Late submission
W n n Acceptance criteria
Proposal delivered by Federal Express which was received late at the delivery location designated
in the solicitation for hand-carried proposals was properly rejected where the late delivery was
caused by the protester’s mistaken belief that the proposal should be sent to a location other than
that specified in solicitation for delivery of hand-carried proposals, and by the protester’s failure to
mark the envelope containing its proposal with any identification concerning the solicitation
number or deadline.


Page 28                                                                         Digests-April     1990
* B-23iO80.2, April 16, 1990                                                     90-l CPD 394
  Procurement
 Bid Protests
 W GAO procedures
 W W Protest timeliness
 W n W lo-day rule
 Dismissal of protest as untimely is affirmed where record confirms that protest was filed more
 than 10 days after agency orally notified protester of basis for protest.

 B-237598.2, B-237599.2, April 17, 1990                                          90-l CPD 395
 Procurement
 Competitive    Negotiation
 W Offers
 n W Evaluation
 W W W Technical acceptability
 W W H n Equivalent      products
 Procurement
 Specifications
 H Brand name/equal       specifications
 W W Salient characteristics
 n W W Sufficiency
 Protest in negotiated brand name or equal procurement that agency improperly made award to
 firm whose proposal did not meet certain salient characteristics is denied where protester does not
 demonstrate that agency’s technical judgment that awardee’s proposal meets the salient charac-
 teristics is unreasonable.

 B-238100, April 17,199O                                                         90-l CPD 396
 Procurement
 Contractor    Qualification
 W Responsibility
 W n Contracting      officer findings
 n H 1 Affirmative      determination
 W W n H GAO review
 Procurement
 Contractor Qualification
 W Responsibility
 W W Contracting   officer findings
 W n W Pre-award surveys
 Where contracting officer determined the prospective awardee to be a responsible contractor based
 on a preaward survey finding that the firm had adequate financial resources and an adequate pro-
 duction capability to manufacture the required product in accordance with the purchase descrip-
 tion, and where there is no showing that this determination was made in bad faith, there is no
 basis to object to the agency’s affirmative determination of the prospective awardee’s responsibil-
 ity.


 Page 29                                                                     Digests-April     1990
                                                                                              ,          .
Procurement
Sealed Bidding
W Bids
W n Responsiveness
W W n Determination      criteria
Where low bidder unequivocally offered to perform the contract and took no exception to the
terms of the invitation for bid’s technical specifications, the firm’s bid was responsive.

B-237264.2, April 18, 1990                                                        90-l CPD 397
Procurement
Bid Protests
q GAO procedures
n H GAO decisions
n n 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-238008, B-238008.2, April 18,199O                                               90-l CPD 398
Procurement
Competitive    Negotiation
W Discussion
W W Adequacy
n H H Criteria
Procurement
Competitive    Negotiation
n Discussion
n W Misleading information
W W n Allegation    substantiation
Procuring agency, in a negotiated procurement for the lease of office space, misled the protester in
discussions by informing the protester that it must either include all of the electrical utility costs
in rent or exclude all of it and provide separate meters for the government, while allowing the
awardee to provide for the partial exclusion of the electrical utility costs from the rent. The pro-
tester, however, was not prejudiced by the agency’s misleading discussions since it would not have
been the low offeror, even if it had not been misled.

Procurement
Competitive    Negotiation
W Offers
H n Evaluation    errors
n n W Allegation    substantiation
Where a protester disagrees with the agency’s technical judgment concerning the quality of the
neighborhood in which the awardee’s building is located and whether the awardee has offered suf-
ficient net usable square feet to satisfy the minimum space requirements of the solicitation for
leased space, but has not shown that the agency’s determinations lacked a reasonable basis, pro-
test allegations that the procuring agency improperly evaluated the awardee’s proposal are denied.


Page 30                                                                       Digests-April       1990
’ ProcLement
 Contractor    Qualification
 n Responsibility
 n n Contracting      officer findings
 n n n Affirmative      determination
 n n n q GAO review
 Protest allegation that the procuring agency improperly found the awardee-to be responsible is
 dismissed since the General Accounting Office will not review affirmative determinations of re-
 sponsibility except in limited circumstances not present here. The fact that the awardee has filed
 for bankruptcy under Chapter XI of the United States Bankruptcy Code does not require a fmding
 of nonresponsibility.

 B-238177, et al., April 18, 1990                                                  90-l CPD 399.
 Procurement
 Small Purchase Method
 n Requests for proposals
 n n Terms
 n q q Design specifications
 Agency is not prohibited from using manufacturer part numbers as item descriptions in procure-
 ments conducted under Federal Acquisition Regulation (FAR) Part 13 small purchase procedures.
 Small purchases are specifically excepted from the requirement that agencies ‘use specifications in
 General Services Administration and Department of Defense indexes for item descriptions.

 B-238316, April l&l990                                                       -.   90-l. CPD 400
 Procurement
 Small Purchase Method
 n Requests for proposals
 q W Terms
 q q n Design specifications
 Protest that agency improperly failed to include a federal specification in item description is
 denied, since regulation, which provides that federal specifications are to be used when applicable,
 does not apply to small purchases;. in any case, federal specification cited by protester does- not
 apply to required item.

 B-238377, April l&l990                                                            90-l CPD 401
 Procurement
 Bid Protests
 n GAO procedures
 q n Protest timeliness
 q q n Apparent solicitation       improprieties
 Protest concerning alleged defects on the face of an invitation for bids is untimely when filed after
 bid opening.




 Page 31                                                                       Digests-April     1990
Procurement
Sealed Bidding
n All-or-none bids
n n Evalu&ion
n n n Propriety
Protest that all or none solicitation provision was ambiguous is denied where protester’s interpre-
tation of provision as applying to quantities within line items, rather than to all line items them-
selves, is unreasonable given that provision refers to 100 percent of “all items to be awarded.”
Since protester submitted an all or none bid but was not the low aggregate bidder, protester was
properly found not in line for award.

Procurement
Sealed Bidding
n Contract awards
n n Multiple/aggregate     awards
Protest that prospective awardee who specified $4 million as the minimum amount for which it.
would accept award is ineligible for award because it was the low bidder on items totaling less
than $4 million is denied, since contracting officer properly may make multiple awards based on
the combination of bids which result in the lowest overall cost to the government, taking into ac-
count any quantity limitations in the bids.

B-238594.2, April 19, 1990                                                       90-l CPD 402
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
q H q Reconsideration
The General Accounting Offrce (GAO) will dismiss a request for reconsideration where similar
issues under the same procurement are the subject of pending litigation before a court of compe-
tent jurisdiction, unless the court requests a GAO decision, even though the protester is not a
party to the suit.

B-236896.2, April 20, 1990                                                       90-l CPD-404
Procurement
Bid.Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Decision is affirmed on reconsideration where protester fails to show that decision was based on
error of law or fact.




Page 32                                                                      Digests-April    1990
          L
 ,


B-238049, April 20,199O                                                          90-l CPD 405
Procurement
Bid Protests
q GAO procedures
n q Preparation  costs
Procurement
Competitive    Negotiation
n Requests for proposals
E n Cancellation
n q q Justification
q q q q Government advantage
Protester is not entitled to recover proposal preparation costs where agency’s cancellation of a re-
placement solicitation for critical medical services was proper since all prospective offerors were
advised that award was contingent upon default by the incumbent contractor and cancellation was
based upon the incumbent contractor’s decision to continue contract performance.

B-238191, April 20,199O                                                          90-l CPD 406
Procurement
Sealed Bidding
q Bids
q q Responsiveness
n n n Determination      criteria
Procurement
Sealed Bidding
n Bids
q n Responsiveness
q n n Terms
n n n q Deviation
Where invitation for bids for removal and disposal of chemical products prohibited recycling and
low bid included a proposal to return certain products to a manufacturer for blending and mixing
into new products, bid was properly rejected as nonresponsive to the solicitation.

B-238290, April 20,1990***                                                       90-l CPD 407
Procurement
Sealed Bidding
q Bids
q n Responsiveness
q n q Terms
n q q n Deviation
Protester’s bid for printing paper was properly rejected as nonresponsive where solicitation as a
whole required bidders to agree to furnish paper with 50 percent waste paper content, and protest-
er’s bid offered zero percent content.




Page 33                                                                      Digests-April     1990
Procurement
Sealed Bidding
n  Contract awards
n  n Propriety
n  n n Recycled materials
n  n n q Cost increase
Award to lowest bidder offering to comply with mandatory solicitation requirement for 50 percent
waste paper content, even though there was lower bid not meeting requirement, is consistent with
Resource Conservation and Recovery Act of 1976 and Environmental Protection Agency imple-
menting Guideline; although narrative accompanying Guideline indicates EPA’s view that higher
price for paper meeting minimum waste paper content requirement is unreasonable, neither stat-
ute nor Guideline prohibits paying such a premium.

B-237278.4, April 23, 1990                                                       90-l CPD 408
Procurement
Rid Protests
n GAO procedures
n n Preparation costs
Procurement
Competitive   Negotiation
n Quotations
n q Preparation     costs
Prior decision denying claim for quote preparation and protest costs is affirmed since a decision on
the merits of a protest is an essential condition to a declaration that the protester is entitled to
the award of costs.

B-238159, April 23,199O                                                          90-l CPD 409
Procurement
Competitive      Negotiation                                                                         \
n  Contract awards
n  n Administrative       discretion
n  n n Cost/technical       tradeoffs
q  n n n Cost savings
Agency properly awarded contract to low, technically acceptable, responsible offeror where pro-
tester’s allegations that awardee’s proposals failed to meet certain solicitation specifications are
notsupported by the record.

B-235742, April‘ 24,199O                                                         90-l ‘CPD 410
Procurement
Noncompetitive     Negotiation
n Contract awards
n n Sole sources
n q n Propriety
A proposed sole-source award to nonappropriated fund instrumentality     for lunchroom monitoring
services at Department -of Defense dependent schools (DODDS) in        Europe is not objectionable
where lunchroom monitoring services are logically related to school    meal program which instru-
mentality currently operates and where award to another contractor     would result in unnecessary
duplication of DODDS administrative responsibilities and complicate    performance of school meal
program.

Page 34                                                                       Digests-April     1990
L



    B-237758.2, April 24, 1990                                                        90-l CPD 411
    Procurement
    Bid Protests
    n GAO procedures
    n n Protest timeliness
    W n H Apparent solicitation     improprieties
    Protest that agency improperly failed to conduct a preproposal conference is dismissed as untimely
    where protester first raised allegation months after the time set for the submission of initial pro-
    posals.

    Procurement
    Competitive    Negotiation
    n Discussion
    n n Adequacy
    n n n Criteria
    Protest that agency improperly failed to engage in oral discussions is denied since agency is under
    no legal obligation to conduct oral, as opposed to written, discussions.

    Procurement
    Competitive   Negotiation
    n Technical evaluation boards
    n n Bias allegation
    n n H Allegation    substantiation
    n n n n Evidence sufficiency
    Protest that agency contracting personnel are biased in favor of another offeror is denied where
    protester fails to offer probative evidence in support of its allegation.

    B-237955.2, April 24,1990***                                                      90-l CPD 412
    Procurement
    Competitive   Negotiation
    n Offers
    n n Risks
    n n n Pricing
    Fact that original equipment manufacturer (OEM), the only source of necessary spare parts, is in
    position to influence competition by imposing restrictions upon spare parts availability does not
    render procurement defective where (1) the restrictions appear reasonable and have not been ap-
    plied to prevent any particular firm from purchasing the parts and (2) the only alternative prc-
    curement method would be a sole-source award to the OEM, but record does not support conclu-
    sion that OEM is only acceptable source. Ability to obtain parts is matter of firm’s ability to devel-
    op business relationship with OEM, a matter outside the General Accounting Office’s purview.




    Page 35                                                                        Digests-April     1990
Procurement
Specifications
n Minimum needs standards
n n Cqmpetitive     restrictions
n n H $ustification
n n n n Sufficiency
Solicitation requirement that offerors complete original equipment manufacturer’s (OEM’s) main-
tenance training prior to preaward survey is unobjectionable where OEM, the only source of ac-
ceptable spare parts, will make parts available only to firms with training and there would be risk
of delay in contract performance if training was not completed prior to award.

B-237981.3, April 24, 1990                                                       90-l CPD 413
Procurement
Bid Protests
n GAO procedures
n n Interested parties
Where a protester is one of the lowest technically rated offerors in the competitive range after an
initial evaluation, it is nevertheless an interested party under the Bid Protest Regulations to pro-
test the evaluation of its proposal.

Procurement
Competitive    Negotiation
W Discussion
n n Adequacy
n n W Criteria
Contracting agency satisfied the requirement for meaningful discussions where a letter requesting
clarification and correction of deficiencies led the protester into areas of its proposal needing re-
sponses or amplification.

Procurement
Competitive   Negotiation
n Offers
n n Competitive   ranges
n n n Exclusion
n n n n Administrative    discretion
An agency’s determination that an offeror’s proposal was not in the competitive range, made after
it conducted one round of discussions, was proper where the proposal’s technical rating was rea-
sonably evaluated as marginal and offeror’s proposed price was substantially higher than the
lowest priced of those offerors retained in the competitive range.




Page 36                                                                       Digests-April     1990
B-238183, April 24,199O                                                          90-l CPD 414
Procurement
Competitive   Negotiation
n Offers
n n Competitive   ranges
n n n Exclusion
n n n n Administrative    discretion
Agency properly determined not to include proposal in the competitive range where the agency
reasonably determined that the technical proposal contained several major deficiencies, any one of
which raised a serious question as to the proposal’s liability, and that major revisions would be
required to make the proposal technically acceptable, particularly where the proposal had no rea-
sonable chance for award because there were numerous other higher rated proposals which were
included in the competitive range.

B-238270, April 24,199O                                                          90-l CPD 415
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation     improprieties
Allegation that awardee, as the incumbent, had an unfair competitive advantage in preparation of
proposals because it had access to information not made available to protester is untimely, since
protester knew of basis for protest prior to submission of proposal, but failed to raise objection at
that time.

Procurement
Competitive   Negotiation
n Contract awards
n n Propriety
Awardee’s failure to satisfy size standard requirement in solicitation was not proper basis for re-
jecting proposal; the procurement was not set aside for small business concerns and the size stand-
ard referenced in the solicitation (apparently by mistake) therefore was not applicable.

Procurement
Competitive Negotiation
n Offers
n n Evaluation
n H n Administrative    discretion
Evaluation was proper where source selection documents show that it was reasonably based and
consistent with evaluation criteria in the solicitation.




Page 37                                                                       Digests-April     1990
B-238289. Aurii 24.1990                                                         90-l CPD 416
Procurement
Competitive    Negotiation
n Offers
n n Evaluation    errors
n n n Personnel experience
n n n n Point ratings
Protest challenging elimination of protester’s proposal from competitive range is sustained where
the contracting agency improperly evaluated the proposal, and, if it had been evaluated properly,
the protester would be the lowest-priced offeror in the competitive range and would have had a
reasonable chance of receiving award.

B-238450, Amil 24.1990                                                          90-l CPD 417
Procurement
Competitive   Negotiation
n Contract awards
n n Propriety
n n n Brand name/equal        specifications
n n n n Equivalent     products
Procurement
Specifications
n Brand name/equal     specifications
n n Equivalent  products
n n n Acceptance criteria
Protest that agency in negotiated brand name or equal procurement improperly made award to
firm whose proposal did not meet certain salient characteristics is denied where protester does not
demonstrate that agency’s technical judgement that awardee’s proposal met the salient character-
istics was unreasonable.

B-233697.3. Auril 25. 1990                                                      90-l CPD 418
Procurement
Competitive  Negotiation
n Requests for proposals
n n Terms
n n n Risks
Procurement
Sealed Bidding
n Invitations  for bids
n n Defects
n n n Evaluation    criteria
n n n n Pricing
Protest that solicitation is defective for failing to provide historical data on missing or damaged
government furnished equipment and supplies is denied where agency does not have the requested
data and this lack of information will not prevent offerors from competing intelligently and on an
equal basis.

Page 38                                                                     Digests-April     1990
l



    B-236927, April 25,199O                                                          90-l CPD 419
    Procurement
    Bid Protests
    W GAO procedures
    W H GAO decisions
    W W H Reconsideration
    Decision which held that agency reasonably found individual surety on bid bond unacceptable due
    to qualifying language in requested escrow agreement, and thus properly rejected bidder as nonre-
    sponsible, is affirmed on reconsideration where protester presents no evidence that original deci-
    sion was based on error of law or fact.

    B-237411.2, April 25, 1990                                                       90-l CPD 420
    Procurement
    Bid Protests
    H GAO procedures
    H W GAO decisions
    W n W Reconsideration
    Prior decision is affirmed where protester fails to indicate error of fact or law or information not
    previously considered that would warrant reversal or modification of prior decision.

    B-238059. April 25.1990                                                          90-l CPD 421
    Procurement
    Competitive   Negotiation
    H Contract awards
    W n Administrative     discretion
    W W W Cost/technical     tradeoffs
    W W W n Technical superiority
    Contracting agency’s selection of the significantly higher priced awardee, based on the technical
    superiority of the awardee’s facsimile machines, lacks a reasonable basis where the determination
    of technical superiority is based primarily on the awardee’s higher technical point score for its
    operating manual, which did not address paper loading, while protester’s operating manual was
    unreasonably downgraded for allegedly not clearly describing paper loading, and on the protester’s
    failure to provide unrequested software with its proposal.

    Procurement
    Competitive   Negotiation
    n Contract awards
    H n Administrative     discretion
    W n W Cost/technical     tradeoffs
    W n W W Technical superiority
    Contracting agency failed to conduct meaningful or equal discussions with the protester in a nego-
    tiated procurement for facsimile machines where the agency failed to identify its specific technical
    concerns regarding the protester’s operating manual and provide the protester the opportunity to
    offer a revised manual in response to the agency’s concerns, yet did provide the awardee with this
    opportunity.



    Page 39                                                                      Digests-April     1990
B-238226.2, April 25, 1990                                                       90-l CP’D 422          l



Procurement
Bid Protests
n GAO procedures
W W GAO decisions
H W n Reconsideration
n W n W Additional     information
General Accounting Office will not consider a request for reconsideration of a protest on the basis
of the protester’s subsequent provision of relevant facts and information of which the protester
was or should have been aware but failed to present at the time the protest was first filed.

B-238464, April 25,199O                                                          90-l CPD 423
Procurement
Competitive    Negotiation
W Discussion reopening
H W Propriety
W W n Best/final     offers
W n H W Corrective actions
Contracting agency’s decision not to reopen discussions after receipt of fourth round of best and
final offers (BAFO), in order to give protester the opportunity to incorporate its late price modifi-
cation, is unobjectionable where the record indicates that protester had an opportunity to and did
submit a proposal by the closing date for receipt of final request for BAFOs, and reopening discus-
sions would have added expense and further delayed already lengthy procurement.

Procurement
Competitive  Negotiation
W Offers
n n Late submission
W W W Acceptance criteria
Procurement
Competitive    Negotiation
n Unsolicited     offers
n W Acceptability
Protester’s unsolicited best and final offer (BAFO), received over 4 months after the date specified
for receipt of BAFOs, was properly rejected where none of the exceptions permitting the accept
ante of late submissions outlined in the solicitation applied.

Procurement
Competitive  Negotiation
W Offers
n n Late submission
W n W Acceptance criteria
Procurement
Competitive    Negotiation
n Unsolicited     offers
W W Acceptability
Contracting agency properly rejected protester’s unsolicited best and final offer (BAFO) offering
most favorable price to the government, but received over 4 months after the date specified for

Page 40                                                                       Digests-April     1990
          .
re:eipt of BAFOs, where the protester was not the otherwise successful offeror after evaluation of
timely submitted BAF’Os.

B-238507.2, April 25, 1990                                                        90-l CPD 424
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Prior dismissal of protest as untimely is affirmed where evidence of timeliness, available to the
protester at the time the protest was filed, is first presented to General Accounting Office in re-
quest for reconsideration.

B-238582, April 25,199O                                                           90-l CPD 425
Procurement
Bid Protests
n Private disputes
n n GAO review
To the extent that protester’s disagreement with the Navajo tribe’s assertion of its taxing author-
ity constitutes a dispute between private parties, it is not for resolution under the General AC-
counting Office bid protest jurisdiction.

Procurement
Sealed Bidding
n Bids
n n Evaluation
n n n Prices
n BBBTaxes
Where invitation for bids requires that the contract price include all applicable taxes, the respon-
sibility for determining the applicability of Navajo tribal tax to a construction project located out-
side of the Navajo reservation is that of potential offerors.

B-238926.2, April 25, 1990                                                        90-l CPD 426
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Request for reconsideration of protest that was dismissed as untimely is denied where the protest
was filed with the General Accounting Office more than 10 working days after denial of firm’s
agency-level protest.




Page 41                                                                        Digests-April     1990
B-239119.2, April 25, 1990                                                       90-l CPD 427
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n IO-day rule
Protest against rejection of proposal and exclusion from competitive range is untimely and not for
consideration when not filed within 10 working days after protester received letter detailing spe-
cific bases for rejection of the proposal; under such circumstances, request for debriefing did not
toll running of lo-day timeliness period.

B-239208, April 25,199O                                                          90-l CPD 428
Procurement
Contractor   Qualification
n Approved sources
n n Information     submission
n n n Timeliness
Protest that agency approved low offeror as a source of supply after submission of initial proposals
is dismissed where solicitation permitted such approval prior to time of award.

B-230580.5, April 26,1990***                                                     90-l CPD 429
Procurement
Special Procurement    Methods/Categories
n Federal supply schedule
n n Multiple/aggregate   awards
n n n Price reasonableness
Finding of price unreasonableness under multiple-award Federal Supply Schedule solicitation was
reasonable where proposal did not offer either most favored customer pricing-prices  equal to or
lower than lowest commercial prices-when evaluated on a product-by-product basis or lowest net
price available to the government.

B-237068.3, April 26. 1990                                                       90-l CPD 430
Procurement
Competitive   Negotiation
n Contract awards
n n Administrative     discretion
n n n Cost/technical      tradeoffs
n n n n Technical superiority
Selection of the awardee on the basis of its overall technical superiority, notwithstanding its 3.8
percent higher price, is unobjectionable where agency reasonably determined awardee’s higher-
priced proposal was worth the additional cost, and cost/technical tradeoff was consistent with the
evaluation scheme.




Page 42                                                                      Digests-April     1990
Procurement
Competitive Negotiation
n Discussion
n n Adequacy
n n n Criteria
Discussions were adequate where agency led protester to areas where its offer was rated less than
acceptable and the firm supplied responses in its best and final offer that resulted in a rating of
acceptable in all areas; agency was not required to help the firm bring its proposal up to the level
of the awardee’s higher-ranked proposal.

B-237377.2, April 26, 1990
Procurement
Bid Protests
n GAO procedures
n n Preparation   costs
n n n Sales contracts
Under the General Accounting Office Bid Protest Regulations, protest costs may not be awarded to
a successful protester when sales contracts are involved.

B-238320, April 26,199O                                                          90-l CPD 431
Procurement
Sealed Bidding
W Unbalanced bids
n n Allegation substantiation
n n n Evidence substantiation
Allegation that awardee’s offer is materially unbalanced and violates solicitation’s Integrity of
Unit Prices clause is denied where protester has not shown that there is a reasonable doubt that
award will result in the lowest overall cost to the government or that it was prejudiced by award-
ee’s pricing.

B-239353, April 26,199O                                                          90-l CPD 432
Prgcurement
Bid Protests
n GAO procedures
n n Protest timeliness
n W n lo-day rule
Protest of allegedly restrictive specifications is dismissed as untimely where allegations initially
were raised in agency-level protest and subsequent protest to General Accounting Office was not
tiled within 10 working days after closing date for receipt of quotations, which constituted initial
adverse agency action on the protest.




Page 43                                                                      Digests-April     1990
                                                                                                    l

B-226006.2. April 27. 1990
Procurement
Bid Protests
n GAO procedures
n H GAO decisions
n n n Reconsideration
Upon reconsideration, our prior decision is affirmed. The evidence presented does not compel a
contrary conclusion and no errors of law have been found. Further, claims are not for consider-
ation by GAO where a carrier alleges material facts for the first time in a request for reconsider-
ation concerning 56 of 294 government bills of lading that were the subject of a decision. 31 USC.
9 3726 (Supp. V 1987). The bills may be presented to GSA for reaudit if they otherwise satisfy the
requirements for the presentation of transportation claims.

B-237825. Auril27.1990
Procurement
Payment/Discharge
n Unauthorized    contracts
W W Quantum meruit/vaIebant         doctrine
Claimant may be paid on a quantum meruit basis for services provided to the government without
a written contract since the government could properly have acquired the services, the govern-
ment received and accepted the benefit of the services, and the claimant acted in good faith. Pay-
ment should be made in the amount the agency determines to be the reasonable value of the bene-
frt to the government.

B-238106. B-238257, Awil27,1990***                                                90-l CPD 433
Procurement
Competitive  Negotiation
n Offers
W W Submission time periods
n W W Time restrictions
W n n W Propriety
Where the protester effectively was permitted 2 hours to submit an offer due to the agency’s un-
justified failure to provide reasonable time to solicit offers, the protester was improperly-deprived
of an opportunity to compete.

Procurement
Noncompetitive     Negotiation
H Use
n n Justification’
H n n Urgent needs
Protest is sustained where the agency, using noncompetitive procedures to award contract exten-
sion on a sole-source basis, fails to establish that the time constraints imposed by urgency prevent
ed the agency from soliciting offers from other potential sources including the protester.




Page 44                                                                       Digests-April     1990
  *        *

 B-238137, April 27,199O                                                          90-l CPD 434
 Procurement
 Competitive Negotiation
 H Requests for proposals
 H W Competition   rights
 n W W Contractors
 H H n W Exclusion                                                                                     ‘.-., :,
                                                                           .
’ Procurement            ’    .   ’
 Socio-Economic      Policies
 n Preferred products/services
 H n Domestic sources
 H W n Competitive restrictions
 n W n H Errors
 Where solicitation erroneously indicated that competition was restricted to domestic sources,
 award to a foreign source was improper since it prejudiced domestic source that relied on restric-
 tion in preparing its proposal and foreign sources other than awardee that may have submitted
 offers in the absence of restriction.

 B-238184, April 30,199O                                                          90-l CPD 435
 Procurement
 Competitive   Negotiation
 n Contract awards
 n W Administrative     discretion
 H n n Cost/technical     tradeoffs
 4 W W n Technical superiority
 Protest against decision to award to higher cost, higher technically evaluated offeror is denied
 where the solicitation provided for award to offeror whose proposal was determined to present the
 greatest value to the government and where the agency made reasonable determination that the
 technical superiority and lower risk of the awardee’s proposal made that proposal the better value.

 Procurement
 Competitive    Negotiation
 n Discussion
 n W Adequacy
 W H W Criteria
 Protest that agency failed to conduct adequate discussions concerning issues revealed at debriefing
 conference is denied where record shows that issues either had trivial effect on award decision or
 were in fact raised during discussions but offeror’s response did not satisfy agency’s concerns.

 Procurement
 Competitive   Negotiation
 n Offers
 H n Risks
 W n H Evaluation
 n W n H Technical acceptability
 Where agency found that offeror proposed to make a final decision on its technical approach for
 meeting requirements for full-scale engineering development of prototype 3 or 4 months after
 award and therefore presented risks of not meeting required schedules and of exceeding its pro-

 Page 45                                                                       Digests-April   1990
posed cost, evaluation that considered both technical and cost risks involved with acceptance of
offeror’s proposal was reasonable and in accordance with solicitation criteria since consideration of
risks involved in an offeror’s technical approach is inherent in the evaluation of technical propos-
als.




Page 46                                                                       Digests-April     1990
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