Digests of Decisions of the Comptroller General of the United States, Vol. I, No. 10

Published by the Government Accountability Office on 1990-07-01.

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

            United States General   Accounting   Office
            Office of General Counsel

July 1990
            Digests of Decisions
            of the Comptroller
            General of the
            United States
For sale by the Superintendent of Documents,
U.S. Government Printing Office, Washington,   D.C. 204&Z
Current GAO Officials

Comptroller  General       of the United    States
Charles A. Bowsher

Deputy   Comptroller      General   of the IJnited States

Special Assistant      to the Comptroller     General
Milton J. Socolar

General Counsel
James F. Hinchman
Deputy General Counsel

Page i

Preface                                                111
Table of Decision Xurnbers                             iv

  Appropriationsj’Financial   Management                1
  Civilian Personnel                                    3
  Military   Personnel                                  r
  Miscellaneous      Topics                             !)
  Procurement                                          10
            --.~                           --..   --

Page ii

This publication     is one in a series of monthly pamphlets entitled “Digests of
Decisions of the Comptroller        General of the Unikd         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 LJ.S. Code $ 3529 (formerly 31 U.S.C. $4 ‘i4 and X2d). Decisions concerning
claims are issued in accordance with Xl U.S. Code $ 3702 (formerly 31 U.S.C. $
71). Decisions on the validity of contract awards are rendered pursuant to the
Competition     in Contracting    Act, Pub. I>. !IX-Z<li!), July 1X, 1981. Decisions in this
pamphlet are presented in digest form. When requesting individual                   copies of
these decisions, which are available in f’ull text, cite them by the file number
and date, e.g., B-22!L329.2, Sept. 29, 19H9. 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. ti4-l t 1OHOL
              7 *

Page iii
Table of Decision Numbers

                                   I’;,gr,               ~          ---.-ew
B-20X29.2, July 18, 1990             30 B-23X216.2, July 17, 1990             26
B-2171 14.6, July 24, 1990            2 i-23X223.2, B-238223.3, July 90,
B-242544, July 20, 1990               8  1990                                43
B-233484, July 6, 1990***             3 B-238243, July 20, 1990                5
B-234430, July 17, 19!M              2.5B-23X356.2, July 17, 1990** *        26
B~234H88, July 16, l!l!fO             7 B-23X362, July 11, 1990* **             1
B-234C$IO, July 13, ~990* * +         1 B-238367.4, July 5, 1990             14
B-235678,   July 3?, 1990             2 B-238383, July 13, 1990                4
B-2Y6173.4, B-236173.5, July 16,        B-23X422.2, July 17, 1990            27
1990                                23 B-238486, July 24, 1990* * *            5
B-236260.2, Ju!y 2, 1990* * *       10 B-238555.2, July 17, 1990             27
B-236336, July I;{, 1990            22 B-238566, July 5, 1990* *’              3
B-236389, July 25, 1990             42 B-238597.2, July 5, 1990””            14
B-2367 13.3, July I!), 1990* * *    31 B-23X610.2, July 20, 1990             32
B-236834.3, July 20, 1990           32 b-238614, July 26, 1990                 6
B-236854.4, July 23, 1990           36 B-238680.2, July 18, 1990***          30
B-237m342.2, July 17, 1990          26 B-238694.3, July 30, 1990             44
B-237522.2, July 3, 1990            10 B-238752, July 6, 1990”**           ~~15.
B-237651.4, July 20, 1990           32 B-238773, July 6, 1990                16
B-287693.2, July 27, 1990            ii B-238808,
                                         _~ ..-.   July 9, 1990              17
B-237728.2, July 30, NYC)           42 B-238810, B-238810.2, July 3,
B-2y729, Ju!y 20, 199p               :> 1990***                               10
B>37%4, July 5, 1990” * *            3 B-238860, July 3, 1990                 11
B-238055.2, July 30, 1990           42 Ii-ii&l,    July 3, 1990               11
B-238099.2, -.July 10, 1990         18  B-238874,  July 17, 1990**“-          28
B-238112, July 30, 1990              2 B-238875, July U-1990                  28
B-238112, July 30, 1990             43 B-238886, July 5, 1990***              15
B-238153, July 3, 1990               7 B-238890,
                                        ..         July 6,-I1990” * *         16
Table of Decision Numbers

                ~.       -           Page                                                        Pap
~ ..-.       July 3, 19!jO            12     -B-239170, B-239921, July 17,
B-238893, July 13, lY90               22      1990***                                              29
B-238910, .~ July 17, 1990            2.9    B-239173, July 24, 1990          “.-.       ~~        40~
B-238913,    July 12, IS90            20     B-239191,
                                                 ~~        July 24-‘--1990 __ ~~~ ~~~
                                                         .-...,                                    40
. .~~~                            .--
B-238936, July 12, 1990*‘    *        20     B-23Y;‘
                                             .--..   OS L July 23   .A- 19YO ~~             -.--. 36
B7z;Zg42,    July 20, 1990            33     B-23921 1, July 30, 1990                              45
B-238Yfi4, July 3, 1990               12     B-239217, ..-July 23, 1990                            40
B-2:3X!G, July 20, 1990***            33     B-23922-1, July~ 12, lU$l                             21
B-238969, B-‘M!f71, July lY,                 B-239231.4, July   ~      12,  1990
                                                                            --           ~~~       21~
1990”“”                               :<1    B~2’302’1’
                                                      ~‘:> Jul-y....24, 1990
                                                                          ~. *        _        ~~41
B-ZSXY’iY, July 20, lY90*“*           34     B-&241,       July 16, 1990                           25
B-%38977.2, July 23,-~-. 1990         38     B-23924&2, July 30, 1990                              46
B-23X!GX, July -lY, 1990              Xi!    B-23927-1, July 12, 1990                 ~. -~ ..-7
B-23Xm9H), July 20, 1990              :%I    Bp28Y295, July 13, 1990                               23
B-239006.3, July 24, lY!IO            :X3    B-23W97, July 24,       .-~.1990      ~~     __       41
B-239010, July 21, 1990               39     B~23932X, July 30, 1990                               46
B-239023, July 20, 1990               :j:5   B-23W~O.2, July !I, 1990-.                   __ 17     ~~
B-239025, J&y 11, 19!10* * *          19     B-‘LY%:MS, B-239345.2, July 25,
             Jul 16 1900              24     1’Em                                                  42
B-239038, July 11, lWO* **            19     B-2YY3’72, July 16, 1990                              25
B-23904:,, July :,, lYY0                9    B-2394;i:C!, July 5, 1990 .-.                         15
B-239046.2, July 30, 1990 ~~~~_____ 44       B-23953!1.2, Julymt;, 1990 ~_                         16
B-239064, July 3, lY90***             13     B-2:195>!), July 5, l!)YO                             15
B-23YO-75, July 23, 1990              39     B-239647.2,~... July 6, 1990                          17
                                             B-2:WiU       Jul      20   19’ fO                   /1 c)
B-2391 14, July 23, lYr,v             36                    ---Yp            m~pp                  3,
B-239116, July 24, 1990               39     3~2:1%81): July 3, 1990                               13
B-2391 48, July 30, 19911             35     B~23YSX1, July 3, lY9ti                               I3
                                             B~2:W!t4, July 2=!.0                                37
Table of Decision Numbers                                                     I

                            Pag                                       PC%@
B-239838.2, July 9, 1990     18   B-240087, July 6, 1990               17
B-239911, July 9, 1990       1X   B-240224, July 17, 1990              30
B-240027, July 30, 1990       9   B-240251.2, July 31, 1990 _______    47
B-240048, July 18, 1990      31   B-240329, July 20, 1990              35
B-240064, July 30, 1990      46   B-240411, July 23, 1990              37
Overruled, Modified and

-._. _~      Aug. 16, 1977             4
~~           Oct.
        -..‘--’   24 .--.
                      19Xi   ~____. __ 4

H-234990, July 13. 1990***
.4ppropriations/FinanciaI  Management
-4ppropriation  lvailabilit!.
a Purpose arailabilif-
n W Mandator!-    use
m n n (irants
4ppropriations/Financial               M&agement            .-
Federal Assistance
I Grants
H H State/lncal   governments
n n W Funding levels
The \‘eterans Rehabllltntlon    and Education Amendments         of‘ l%%, which established the Disabled
Veterans Outreach Program [DVOPI. required each state accepting DVOP funds to use those
funds to hire the number of D\‘OP specialists as calculated in accordance with a statutory I’ormu-
la. :W U.S.C. 5 2003A Department     regulation, however. which instructed the states that their Em-
ployment Service grant funds would also have to linance D\‘OP. did not earmark any part of’ the
grant funds fbr this program Consequently.       this Office sees no basis to question states’expendi-
tures of’ grant funds on otherwise appropriate    grant activities even though the DROP did not oper-
ate at the level anticipated.

Page 1                                                                            Digests-July     1990
 .             July 24, 1990
&ppropriationslFinancial                    Management
Arcounlable   Officers
n I,iability
W n Debt rollection

H-235678, July 30, 1990
Appropriations/Financial                    Management
Appropriation     Availability
n Time availabilit)-
II H Hona fide needs doctrine                                                                                     Y
n W W Applicability
n n W n Multi-ycer      appropriation
Thr bona fide need rule. :il I! S C‘. S: l.N21ai. which precludes an agency lrom obligntlng, without
express statutory ;~uthority. an appropriation     made for thr needs of a limited period Ibr the needs
of subwqutwt    periods. applies to muitiycar   approprmtions  as ~~11 as to single-year appropriations.

-                                          Management
 Appropriation       Availability
n Time abailability
W n Multi-yrdr       appropriation
I~-..W l Level-of-effort
                ~~            contracts                                                                       -
Appropriations/Financial                   Management
n Fiscal-j-ear   appropriation
n n Expiration
n w n (‘ontracts
Payment for research work under a cost-plus-fixed-f&,             level-of-effort  contract that   spans more
than 1 fiscal year may be made from expired appropriations           properly obligated during     their period
of availability    if the contracting agency determines that the task 1s nonseverable. 65          Comp Gen
1.7.1il!)P.;i. suggesting that level-of-effort work by definition     is severable. is modified    accordingly.

B-238112, July 30, 1990
Appropriations/Financial                   Management          --                                                 f
Claims Against Government
W I’nauthorized   contracts
n n Quantum     meruit/valebant           doctrine
The Department    of Education may not pay a claim filed by a contractor who remained on the job
for several months nftpr its contract had explrrd  Where a contractor renders service on the mere
hope that his proposal will materialize and a contract may be entered into, such services are vol-
untary and not reimbursable.

Pap   2                                                                               Digests-July        1990
Civilian                  Personnel

B-237884, July 5, 1990***                                         -_
Civilian Personnel
W Residence transaction      expenses
I n Reimbursement
n n n Eligibility
An employee who tracsftrred        from Missourl to Germany for personal convenience and was subse-
quently transferred    to Illinois in the interest of the government, is not entitled to reimbursement
I’or real estate expenses in connection with the sale of’ his home in Missouri and the purchase of a
house in Illinois. Only employees who were transferred         to a foreign area in the interest of the
government and who have completed a tour of duty in a foreign area as provided for in a service
agreement are entitled to be reimbursed their real estate expenses.

B-238566, July 5, 1990***                     -.---
Civilian Personnel
I Household goods
n W Shipment
W W n Advances
The Panama Canal Commission        may fund advance shipments of household goods for its eligible
employees. who have completed     their service agreements, under authority of .Y 1J.S.C. § 572%aNlJ
( 19XHI.

B-233484. Julv 6. 1990***
Civilian Personnel
n Residence transaction expenses
H n Reimbursement
W l n Eligibility
I I U m New residence construction
h transferred     employee constructed a residence at his new permanent station rather than pur-
chase an existing residence. The real estate expenses authorized under paragraph P-6.2 of the Fed-
eral Travel Regulations to be reimbursed are those which are comparable to expenses incurred in
connection with the purchase of an existing residence. Since the expenses incurred as a result of
permanent     financing of the residence are most representative    of the expenses incurred to pur-
chase an existing residence, the employee’s entitlement    is to be primarily  based on the expenses
attendant to that settlement. Ray F. Hunt, B-226271. Nov. 5. 1987

Pdg‘2   .?                                                                       Digests-July     1990
Civilian     Personnel                                                                               -
n Residence transaction        expenses
n n Reimbursement
H n W Eligibility
W R n n New residence        construction
A transferred   employee constructed a residence at his new permanent        station. Although the ex-
penses authorized by paragraph     2-6 2 of the Federal Travel Regulations (FTRt to be reimbursed
are those usually incurred incident to the securing of permanent financing upon completion of the
residence. other expenses incurred prior to permanent     financing also may be reimbursed so long
as the> are not a duplication   of an expense ttrm already allowed incident to that permanent        fi-
nancing, an expense uniquely applicable to the construction       process, or a nonreimbursable   item
listed under FTR. para &ii.2dtPt.

Civilian     Personnel
W Residence transaction        expenses
W m Taxes
W n n Reimbursement
n H R W Eligibility
A transferred    employee constructed a restdence at his new permanent         station. Fee paid to public
officials for tax certilicates showing that the property was not encumbered           by unpaid taxes may
be allowed. Section liit).lidlt I I of title 1.X United States Code, exempts such fees from computation
of finance charge incident to the extension of credit under the Truth in Lending Act Wa,yne E
Hoit, B-1X929.5. Aug. iii. l!ii7, and Jolohrr S Ilen. B-21570!), Oct. 24, l!fX~, are overruled in part.
B-238383. Julv 13. 1990
Civilian Personnel                                                                         -.
W Temporary   duty
W l Travel expenses
W n I Reimbursement
.            Personnel
n Travel expenses
l l Cancellation
W B W Penalties
W n n W Keimbursement
An employee was issued “reporting        instructions”  (travel orders) to attend a temporary duty train-
ing course, purchased a nonrefundable        round-trip airline ticket for his voluntary return to his resi-
dence on nonworkdavs       (weekend), but did not use the ticket since the course was cancelled. Em-
ployee may not be riimbursed       the cost of the ticket since he acted imprudently        and in contraven-
tion of‘ the Federal Travel Regulation,        41 C.F.R r;:~l~l-zzrdlrl~liJrAJ  il!+X!+~, in not utiltxrng the
General Services Administration       contract air carrier service for airline service between a city-pair
[Salt I,ake (‘tty, I!tah. and Denver, Colorador and purchasing a nonrel’undable,             rather than a re-
fundablcl. round-trip airline ticket

Page 1                                                                                Digests-July       1990
B-237729, July 20, 1990
Civilian Personnel    -                                         -.~.
n Retroactive   compensation
W n Wertime
n n W Amount     determination
An employee, who was improperly     reassigned to :I dlfltirent office for a J-month period, claims
backpay li,r overtime he would have worked The ag:mcy should award overtime based on what his
co-aorkers worked or what the employee worked in the past.

B-238243, July 20,.- 1990
-        Personnel
Leaves Of Absence
W Annual leave
n W Lump-sum    payments
n n n Waiver
n n HI Reinstatement
In computing  an employee’s backpay entitlement.   the agency deducted his interim earnings and
his lump-sum leave payment, resulting in a net indebtedness which was subject to waiver. The
agency should also have deducted the erroneous lump-sum leave payment f’rom the employee’s in-
terim employment,   thereby increasing his net indebtedness. We hold that this second lump-sum
leave payment is waived.

Civilian    Personnel            ~
Leaves Of Absence
n Lump-sum      payments
l W Eligibility
An employee, who was removed from his position with the Yuma Proving Ground, was employed
by the Corps ol’ Engineers while his appeal of the separation action was pending. His appeal was
successful, and he was reinstated retroactively to his position with the Yuma Proving Ground. The
Corps of Engineers should not have paid him for his accrued annual leave since he was not sepa-
rated from federal service under 5 U.S.C. 3 5.551 ( ~~XXI.

B-238486. Julv 24. 1990***
Civilian Personnel                                                                        ..-
n Temporary     duty
W n Per diem
W n n Additional     expenses
An employee is not entitled to additional    per diem for an     extended tour of temporary    duty in
Ottawa, Canada, where an agency complied with the Federal         Travel Regulations and reduced his
ptbr divm in writing, in advance. Employee has not shown        that agency’s action in reducing per
divm rate for long-term temporary duty detail was arbitrary,     capricious, or contrary to law. More-
IIWT. employee is not entitled to any per diem for thp period   after his duty station was changed to

Paye 5                                                                          Digests-July     1990
B-238611, July 26, 1990
Civilian Personnel
n Travel expenses
W n Documentation   procedures
n W W Burden of proof
Civilian      Personnel
n Travel expenses
l n Fraud
m n n Effects
This summary letter decision addresses well established rules which have been discussed in pievi-
ous Comptroller   General decisions. To locate substantive decisions addressing this issue, refer to
decisions indexed under the above listed index entry.

B-237693.2, July 27, 1990
Civilian Personnel
H Overtime
W n Eligibility
n 1 W Travel      time
Civilian      Personnel
n Non-workday   travel
I W Travel time
n W W Overtime
An agency required an employee to perform permanent         change-of-station travel from Mississippi
to the United    Kingdom     outside his regularly scheduled duty hours. In Robert H. Ray. Sr..
B-237693, Mar. 30, 1990, we sustained the agency’s denial of the employee’s claim for overtime
compensation,  since his circumstances were not covered by any of the specific grounds authorizing
such compensation      in 5 USC. 3 5542bi2NB) and the agency’s apparent       failure to schedule his
travel within his regular duty hours, in violation of 5 U.S.C. 5 6101(b)(d), provides no basis for a
compensatory   remedy. We provide a further explanation    of that decision by letter in response to a
congressional inquiry.

Page 6                                                                          Digests-Juiy    1990
Military                    Personnel

B-238133. July 3. 1990 ~--~^                         ~~
Military Personnel

B-239271, July 12. 1990
Military Personnel
n Overpayments
n n Error detection
W n W Debt collection
W n W n Waiver
A member r\ho was erroneously overpaid for 12 days accrued leave when he separated from the
United States Navy is nof entitled to waiver of the erroneous payment where the record does not
establish that he was sufficiently dillgent in questioning what he should have known was a mis-

B-231888, July 16, 1990
Military Personnel                                                                          -.
W Retirement    pa>
W H Amount    determination
m W n Computation
n n W n Effective dates
A Marine Corps Colonel who retired      but was Immediately     recalled to active duty for 1 year IS not
entitled to have his retired pay recomputed under 10 11.S.C. 5 llir21al to reflect a basic pay rate
that became effective during that l-year period, because the statute requires that a member in
such circumstances receive the higher rate of basic pay for a continuous period of 2 Fears in order
to ha\-e his ret ired pa?- recomputed to reflect the higher rate.

Page 7                                                                            Digests-July      1990
A retired member ot’ thcb Arnq named his srcond wllr as his hrnrf’iciary   on his Survivor Benefit
I’lan iSBP1 f’orm. When a Maryland court rcf’uwd to rccognixe his Nevada divorce from his first
wif’e the Army determined that the wif’e named on the SRP f’orm was not his legal wif’e and then
mistakenly discontinuc*d withholding   SBP premiums f’rom the member’s retired pay, resulting in a
debt ol .$H.?l-l.tLl xcumul;~ted  over ll-li:! years. Thut debt should be waived under 10 U.S.C.
$ 2774 I~!LQI because the member was not at Fault f‘or the mistake and could not reasonably have
been <*xpectrd to know that his first wife was covered under the Plan and that, therelore, his par-
ticipation had not been discontinued.

Page N                                                                       Digests-Juty    1990
~~ ~.. ~.       ________

Miscellaneous Topics

B-239045, July 5, 1990
-              Topics
 Federal Administrative/I,egislative       Matters
W Administrative     agencies
l l Trademarks
n n n Infringement
n W n n Determination
Although the ultimate decision of infringement    of a trademark lies with the courts, in the GAO’s
judgment, the Department       of Health and Human Services has a reasonable basis for taking the
 position that Edu-Graphics’ use of the Head Start name and logo on its products constitutes in-
 fringement   of’ the Department’s  trademarks. Head Start grantees and/or the public are likely to
 be confused as to the source, sponsorship, or endorsement of Edu-Graphics’ goods that hear the
 Head Start name and logo

B-240027, July 30, 1990
-              Topics                                 -..
Federal Administrative/Legislative         Matters
n Government    corporations
H W Board members
W n W Authority
Miscellaneous          Topics
Federal Administrative/I,egisIative         Matters
H Government      corporations
W n Federal procurement        regulations/laws
l W W Applicability
In response to the Chairman, House Committee on Government Operations, we conclude that the
Pennsylvania Avenue Development Commission tPADC) is subject to the Federal Property Act and
the Federal Acquisition Regulation. In addition, we are unaware of any court decision holding that
the role of the Mayor of the District of Columbia, as one of 15 members of the PADC, is unconsti-
tutional since the Mayor is not appointed by the President pursuant to Article II, section Z3 clause
2. of the Constitution.

                                                                               Digests-July    1990

B-236260.2. .Juh 2. 1990***                                                                90-Z CPD 1
Competitive    Negotiation
W Requests for proposals
W W Cancellation
n l W Resolicitation
WI W W Propriety
Agency‘s failure to provide incumbent       contractor required 30 days advance notice of solicitation
for successor contract, to allow incumbent time to negotiate updated collective bargaining agree-
ment to be incorporated   in new solicitation,    did not by itself warrant resolicitation   to incorporate
updated agreement where the agreement first was submitted to the contracting               officer almost 2
months after bid opening.

B-237522.2, July 3, 1990                                                                   90-2 CPD 2
 Bid Protests
n GAO procedures
l I GAO decisions
H W W Reconsideration
Request for reconsideration  of decision is denied where the protester       essentially   only restates   Its
initial arguments and expresses disagreement wth the decision.

B-238810, B-238810.2, July 3, 1990***                                                      90-2 CPD 3
Competitive   Negotiation
n Offers
n n Competitive   ranges
n n l Exclusion
n W l W Administrative    discretion
Where solwtation    provided for evaluation on comparative   basis, elimination of protester’s propos-
al from the competitive range and acceptance of another proposal for award, even though propos-
als may share a similar deficiency, is proper, so long as proposal selected for award properly was
highest rated under solicitation’s evaluation scheme.

Page 10                                                                              Digests-July      1990
Competitive    Negotiation
n Offers                                                                                                    s
n H Evaluation
n n W Descriptive     literature
Agency reliance during evaluation on preexisting descriptive literature   (not submitted with offer),
describing upgrade to software that permits offered model to meet solicitation    requirement, is un-
objectionable  where literature was not inconslstent with literature    submitted with offer and it
showed conformance with requirement.

B-238860, July 3, 1990                                                                  90-2 CPD 4
Special Procurement  Methods/Categories
W Federal supply schedule
W n Contract awards
W n W Propriety
Allegation that agency improperly      awarded a purchase order to a federal supply schedule contrac-
tor at a price higher than the awardee’s schedule price IS denied where the record shows that the
awardee’s purchase order price to provide protective vests and extra carriers is the same as its
schedule price, and that the difference between the awardee’s purchase order price and schedule
price is solely attributable to its price to stencil the agency’s logo on each vest, an item not provid-
ed for in the federal supply schedule contract.

Special Procurement  Methods/Categories
W Federal supply schedule
n n Purchases
W W l Cost/technical tradeoffs
H n n n Technical superiority
Procuring agency properly awarded a purchase order for personal body armor (protective vests) to
a higher priced, mandatory federal supply schedule contractor where the agency reasonably deter-
mined that the protester’s low quote would not meet the agency’s minimum needs.

B-238871. Julv 3. 1990                                                                  90-Z CPD 5
 Contractor   Qualification
n Responsibility
W n Contracting      officer findings
l W W Negative determination
n W W W Pre-award surveys
Contracting   officer properly may base a nonresponsibility    determination   on a negative     preaward
survey, so long as it is based upon accurate information    and conclusions.

I’ap?   11                                                                        Digests-July       1990
Contractor    Qualification
I Responsibility
n W Contracting      officer findings
n n n Negative determination
W n m H Prior contract performance
Contracting   officer properly determined  protester nonresponsible where he had a reasonable basis
for concluding that, based upon protester’s history of poor performance,  there was a high risk that
the protester might ‘lot be able to perform the contract in a timely manner in accordance with the
required performance schedule.

Contractor    Qualification
n Responsibility     criteria
H W Distinctions
n W a De facto debarment
Nonresponsibility   determination   does not constitute a de facto debarment    from government  con-
tracting where the record indicates that the determination    was based upon the protester’s current
lack of capability, not a lack of integrity or honesty, and there is no indication that future deter-
minations will not be based upon the protester’s capability       at the time of the procurement   in-

B-238892, July 3,199O                                                                    90-2 CPD 6
Small Purchase      Method
l Quotations
n W Descriptive     literature
R n m Adequacy
Agency may request technical data and information    pertaining to the manufacture    of a product
from the firm listed as the product’s manufacturer in the item description of a request for quota-

Small Purchase      Method
W Quotations
n n Evaluation
n W n Technical     acceptability
Agency may, after Lhe submission of the initial quotations, request and consider technical        informa-
tion from a firm offering an alternate product in its response to a request for quotations.

B-238964, July 3, 1990                                                                   90-2 CPD 7
 Bid Protests
W Bias allegation
l n Atlegation    substantiation
n W n Burden of proof
General Accounting Office will not attribute   fraud or bad faith to contracting    agency on the basis
of unsupported allegation, inference or supposition.

Page 1.2                                                                           Digests-July       1990
                     ._____-                             ~--.                     .._
Frocurement         ..~                                                                    ~~-       ~~
n Minimum      needs standards
l M Competitive     restrictions
n n W Performance specifications
n n n n Justification
Sollcitatwn    for commercially a\-ailable Infection control wt2~vaw is not unduly restrictive 01 corn-
petItIon where record shows that challenged requirem~wts l’or word processing capability and anti-
biotic sensittviiies moni~orinp are reasonably related to contl-acting agency‘s minimum needs.

3-239064 July 3, 1990***                                          ~”                    90-2 CPD 8
Sealed Bidding
n Invitations  for bids
W n Terms
n n n Progress payments
A request for progress payments is precatory in nature and does not render a bid nonresponsive in
the absence ol‘ circumstances which indicate that the request is more than a mere wish or desire.

B-239680, July 3. 1990                                                                  90-2 CPD 9
Bid Protests
n GAO procedures
Ha Interested parties
n n W Direct interest standards
Where protester would not be eligible to participate under CI set-aside pursuant   to section 8(a) of
the Small Business Act, protest challenging eligibility of proposed awardee and lack of competition
is dismissed. The protester lacks the requisite direct economic interest to be considered an inter-
ested party smce it would not be eligible to compete for the contract even if the protest were SUS-

B-239781, July 3, 1990
Contract Management
H Federal procurement          regulations/laws
H m Revision
n n m Contractors
W I W l Definition
General Accounting Office has no objection to Federal           Acquisition Regulation (FARI case No.
90-13. a proposal to revise the definition of “contractor”      for purposes of debarment. suspension.

Page 13                                                                           Digests-July    1990
B-2311367.1, July 5, 1990                                                                  90-2 CPD 10
Hid Protests
n GAO prowdurrs
H W Protest timeliness
H n W IO-day rule
Protest that agency improperly       dclerminrd  to open negotiations, nl’ter an initial determination to
award to protester. is untimrlv      when f’ilrd more than IO days after basis for protest was known.

B-23X597.2, .July 5, 1990***                                                              90-2 CPD 11
Hid Prutesls
W (:A0      authority
Rule that General Accounting Office (GAO1 generally w11l not review protests of agency refusal to
exercise :I contract option is inapplicable   where agency uses the exercise of contract options in
parallel devtalopment contracts to select one contractor to continue the effort, because, under such
circumstances.   the agency’s nctions do not constitute contract administration    but are. in fact, a
form of’ limited competition  properly subject to rcvicw by GAO.

Hid Protests
W GAO procedures
n n Protest timeliness
W n H IO-day rule
Agency      challenge to timeliness of protest is denled where protester diligently    pursues mformation
that     fbrms the basls of its protest, and files a timrly protest upon receipt      01’such information.

Competitive    Negotiation
n Offers
n W Evaluation    errors
W W H Evaluation     criteria
n H H n Application
Protest that agency abandoned evaluation criteria in solicitation and that contracting officer
lacked a reasonable basis for selection decision is sustained where performance    testing of protest-
er’s prototype equipment contributed    significantly to selection decision under evaluation scheme,
and such testing w-as conducted using test equipment that did not comply with the specifkation
requirement; where the l’aulty operation ot’the test equipment was clearly related to operation of
the prototype equipment: and where valid tests were never completed.

Page 1-I                                                                              Digests-July     1990
H-238886. .Julv 5. 1990***                                                                90-Z CPD 12
Socio-Economic     Policies
H Small businesses
n n Kesponsibility
n n n Negative determination
n W W W Effects
Gener;rl Accounting    Office sustains protest of low small business bidder which did not receive an
award because the contracting      agency did not think it “prudent”  to contract with the firm whose
prior contract for thr same item had been terminated       because of unsatisfactory    performance       Al-
though not denominatrd       as such, the agency’s action was a determination        of nonresponsibility
which by statute must be referred to the Small Business Administration          for consideration    under
the certificate of comprtency procedure.

3439453.2, July s, 1990
--.-                                                                         ---          90-2 CPD 13
Procurement                                               . -. .- .._----
Bid Protests
n GAO procedures
n n GAO decisions
n W n Keconsideration
Protest challenging agency’s refusal to aliow submission of protester’s       revised proposal   is untimely
where filed more than 10 days after protester was on notlce of refusal

Bid Protests
W GAO procedures
n W Protest timeliness
n mW lo-day rule
Untimely   protest is not converted to a timely protest where protester alleges that contracting
agency gave it erroneous advice regarding General Accounting Office CGA01 bid protest procedures
because protesters are assumed to have constructive  knowledge of GAO’s Bid Protest Regulations.

B-239549, July 5, 1990                                                                    90-Z CPD 14
Bid Protests
l Forum election
l W Finality
General Accounting Office will not consider a protest      which sets forth the same issue raised by the
protester in a claim before the contracting agency.

B-238752, July 6, 1990***                                                                 90-2 CPD 15
Competitive    Negotiation
H Offers
W H Evaluation
n W n Point ratings
Agency’s evaluation approach, which for many evaluation subfactors results in scores of 0, 5, or 10
points depending largely upon extent to which offers exceeded minimum     requirements, is not ob-

Page 15                                                                              Digests-July       1990
jectionable where scores reflect agency’s judgment     of relative   value of competing     proposals    and
 not the use of unstated evaluation factors.

B-238773, July 6, 1990                                                                  90-Z CPD 16
Competitive       Negotiation
W Contract awards
n M Initial-offer     awards
n m n Discussion
n m H n Propriety
Contracting agency may not award a contract on the basis of initial offers where agency engaged
in discussions with one offeror by permitting the offeror to make a significant modification to its
initial delivery terms.

Competitive   Negotiation
W Requests for proposals
n n Amendments
W n W Evaluation     criteria
W W 1 W Modification
Contracting   agency may not relax delivery terms contemporaneous         with contract award;        where
the government relaxes a material solicitation    requirement,   it must permit all competitive       range
OfferOFS  an opportunity to respond to the revised requirements.

B-238890, July 6, 1990***                                                               90-Z CPD 17
Socio-Economic    Policies
n Small businesses
W n Competency certification
W W W Adequacy
Protest 1s denied where, although the Small Business Administration’s    denial of a certificate of
competency (COC) references a basis for COC denial ultimately  determined to be incorrect. it also
references a correct, independent basis for denial.

B-239539.2, July 6,
                 -_- 1990                                                               90-2 CPD 18
Procurement                               -..
Hid Protests
n GAO procedures
n W Preparation  costs
General Accounting    Ol’fice wll not award protest costs where      the protest   is properly    dismissed
after agency takes corrective action responsive to the protest.

Payr 16                                                                            Digests-July         1990
B-239647.2, July 6, 1990                                                                90-Z CPD 102
Procurement                                   ---.--_        -
Hid Protests
H GAO procedures
n n Protest timeliness
W n H IO-day rule
W a n m Adverse agency actions
Prior dtsmlssal of protest as untimely   is affirmed where protest to the General Accounting Office
was filed more than 10 working days after protester was notified of agency’s denial of protester’s
initial protest to the procuring agency.

B-210087, July 6, 1990                                                                   90-2 CPD 19
Hid Protests
n GAO authorit
Protest concerning request for carriers’ rate tenders falls outside of General Accounting    Office’s
bid protest jurisdiction   where transportation services will be obtained through the issuance of a
government    bill of lading pursuant to a tender for a one-time routing under relatively  informal
agency procedures.

B-238808, July 9, 1990                                                                    90-2 CPD 20
Sealed Ridding
W Invitations    for bids
I I Cancellation
n n W Justification
n H W n Minimum        needs standards
I’untracting    agency properly canceled invitation    for bids (IFB) for high security door    lock cylinders
to replace existing lock cylinders where: (1) use of “brand name or equal” instead               of functional
specification    limited the agency’s ability to clearly state its minimum     needs: (21 IFB    failed to pro-
vide precise information     about existing cylinder spaces and doors into which the new         locks were to
fit, and (:+I delivery schedutc was unduly restrictive.

B-239330.2, July 9, 1690                                                                  90-2 CPD 21
Procurement      -~
Hid Protests
B GAO procedures
n a Protest timeliness
W n n IO-day rule
Protest against rejection of proposal and exclusion from competitive        range is dismissed as untime-
ly where protester waited :3 months after receiving letter detailing        specific bases for rejection of
the proposal to file protest.

Page 17                                                                              Digests-Juty         1990
B-239838.2, July 9, 1990                                                                    90-2 CPD 22
Bid Protests
W GAO procedures
n W Interested parties
n H n Suspended/debarred          contractors
Protester is not an interested   party to maintain protest where it has been suspended from govern-
ment contracting   and would     not be eligible to receive award even if its protest were sustained.

B-239911, July 9,199O                                                                       90-2 CPD 23
Bid Protests
W GAO procedures
H n Protest timeliness
W n n Apparent solicitation        improprieties
Protest that agency’s specifications   for equipment     are unduly restrictive is untimely   when not
filed prior to the time for receipt of initial proposals, since the alleged improprieties   were appar-
ent from the face of the solicitation.

Competitive    Negotiation
n Offers
I W Evaluation
n n W Technical acceptability
Protester’s offer was properly   rejected   as technically   unacceptable    where offer did not meet solici-
tation specifications.

B-238099.2. July         10. 1990                                                           90-2 CPD 24
Bid Protests
W GAO procedures
W n Protest timeliness
n W n Apparent solicitation        improprieties
Protest issues based on alleged improprieties       in a solicitation   that are apparent   prior   to bid open-
ing must be filed prior to that date.

Contractor    Qualification
l Responsibility
H W Contracting      officer findings
H W W Affirmative      determination
n W W n GAO review
A bidder’s ability to meet its contractual   obligations at the price offered is a matter of the firm’s
responsibility  Ibr the contracting agency to determine before award, and the General Accounting
Office will not review an affirmative      determination   in that respect except in limited circum-

Page 18                                                                                 Digests-July       1990
Sealed Bidding
W Contract award notification
H W Procedural defects
Failure to prumptl~- notil~v protester   ot’ award to another   bidder does not affiect the valldlty   of an
otherwise properly awarded contract

 B-239025, July 11, 1990***.__                                                           90-Z CPD 25
Sealed Bidding
n Bids
m W Responsiveness
m n n Certification
R W n n Omission
Protest that low and second-low bids are nonresponsrve for bidders’ failure to complete certifica-
tion regarding statutory limitation    on use of appropriated funds for lobbying activities is denied
where certification   imposed no additional matennl obligation upon bidders beyond those imposed
by the statute itself

B-239038. Juiv 11. 1990***                                                               90-Z CPD 26
Noncompetitive    Negotiation
n L’se
W H Justification
n l l ITrgent needs
Although the competition     in Contractmg  Act of 1!1$4 mandates that agencies obtain “full and
open competition” m their procurements through the use of competitive procedures. the proposed
sole-source award of a contract under the authority of 10 Ll SC. 9 2304(c)~11 tl9X~t is not objection-
able where the agency reasonably determined that only one source could supply the desired item
within the urgent time constraints of the procurement

Page 19                                                                              Digests-July      1990
H-238913, .July 12, 1990                                                                90-2 WI)        27
Competitive    Negotiation
n (‘ant rid iIwi*rds
n W Administrative      discretion
W H H Cost/technical       tradeoffs
W W n W (‘ost savings
Whwe soIlcitation   listed evaluation I’artors in descending order of importance, listing cost as the
lust factor should not have caused offerors to misinterpret the importance of cost since the solicita-
tion disclosed the specific formula used by the agency to determine the tradeoff betwren cost and
technic;>1 fk?r~r~
                                                                                       -. .-_..
Competitive     Negotiation
m Discussion
n n Adequacy
W n W C’riteria
Dwussions      vwre meaningful   where agency imparted suf’ficient information      to protester to aflkd
it .I fair and rrxom~ble  opportunity  to identify and correct any deficiencies   in its proposal.

Procurement I_
Competitive   Negotiation
B Offers
H W Exclusion
I W n Administrative      discretion
Determmation    that offeror’s proposal was no longer within the competitive        range was proper
where agency determined      that offeror had no reasonable chance of’ being selected for award, and
thrx record hhows that the agency’s relatively    low technical rating of the offeror’s proposal was
wasunable, and that offeror’s proposed cost was substantially     higher than that of offerors in the
competitive range

R-238936, July 12. 1990***                                                              90-2 CPD 28
Procurement                                          --
Hid Protests
n GAO procedures
W n Protest timeliness
W n W Apparent solicitation        improprieties
Where protester challenges the agency’s award of a contract to an approved source rather than
thr solicitation’s  omission of the protester as an approved suurce. the protest does not involve an
allegation of’ a solicitation Impropriety  and. therefore. need not be filed before the closing date for
receipt of proposals

Page 20                                                                            Digests-July      1990
hid Protests
W GAO procedures
W W Protest timeliness
W W W IO-day rule
W W W W Effective dates
Whcrr~ the agency’s and the protester’s versions conflict concerning when the protesterwas noti-
fied that its proposal would not be considered f’or award, the General Accounting        Of’fice will re-
solve doubt ovt~r whether the, protest was filed within 10 days of’ that notification in the protester’s

Noncompetitive    Negotiation
W 1Jse
W W Justification
W W W Urgent needs
C’ontracting agency’s decision to award contract to the only approved source that submitted a pro-
posal is proper where, in view of unexpected deterioration   of supply stock, the approved source is
the only firm that can meet the agency’s urgent need for the item.

H-239224. Julv 12. 1990                                                                90-2 CPD 29
Hid Protests
W Allegation substantiation
W W Lacking
W W W GAO review
Protest that after bid opening agency increased the amount of funding available so as to permit
award for both the base and additive items, thereby displacing protester’s low base bid, is denied
where record shows that prior to bid opening, the agency budget officer certified in writing the
availability of sufficient funds to permit award for the greater amount of work.

H-239231.4, July 12, 1990                                                             90-2 CPD 30
Hid Protests
W GAO procedures
W W Protest    timeliness
W W W IO-day rule
Protest of agency‘s procedures in post award reevaluation        of proposals is untimely  when     filed
more than 10 working days after basis of protest was known      or should have been known.

Page 21                                                                           Digests-July     1990
B-236336, July 13, 1990
n Shipment
l W Tenders
n W W Terms
n I mm Interpretation
n Shipment costs
I n Rate schedules
n WI Applicability
Where a tender other than the one referenced on a Government     Bill of Lading IGEL] could apply
to the shipment,   the referenced tender permits alternation  with otherwise applicable    charges
whereas the other one does not, and the unreferenced   tender leads to a lower charge to the gov-
ernment, the unreferenced tender should be applied.

n Shipment
m n Tenders
m n n Terms
m W W W Interpretation
The insertion of a tender number on a bill of lading is not conclusive       as to the agreement     and is
not necessarily determinative of the government’s  legal obligattons.

I Shipment costs
8 H Additional    costs
m H W Bills of lading
H W n n Ambiguity
The carrier, not the government      as shipper, is responsible   for the proper   issuance   of a Govern-
ment Bill of Lading, free of confhcting provtslons.

B-238893. .Julv 13. 1990                                                                90-2 CPD 31
Hid Protests
I GAO procedures
m n Protest timeliness
m W W IO-day rule
New and Independent     grounds of protest based on information  in the agency’s report responding
to the initial protest allegations are untimely  where the protester first raises such issues more
than 10 days after receiving the agency report.

PiLKe 22                                                                            Digests-July      1991)
Special Procurement    Methods/Categories
W Research/development     contracts
H W Contract durations
Special Procurement    Methods/Categories
n Research/development     contracts
W W Contract extension
W W W Propriety
Protest alleging that the extension of a research and development    (R&D) contract beyond 5 years
is improper is denied since the Federal Acquisition  Regulation (FAR) does not limit the duration
of R&D contracts to 5 years; the extension    of the performance   period, standing alone, does not
constitute a change in the scope of the procurement;     and the contract is not a “multiyear  con-
tract” llmlted to a maximum duration of 5 years under FAR 9 li.102-2tar

B-239295. Julv 13. 1990                                                                    90-Z CPD 33
Competitive   Negotiation
n Contracts awards
l n Propriety
Procurement                -
Competitive    Negotiation
l Offers
n W Evaluation    errors
n W W Evaluation     criteria
W n n W Application
Award to offeror   whose proposal in negotiated procurement    failed to conform to material           specifica-
tion requirement   for an “off-the-shelf,” proven production system was improper.

Competitive   Negotiation
n Requests for proposals
n n Terms
W W W Interpretation
In determining    the    actual meaning of a particular   solicitation requirement, the solicitation    must
be read as a whole       and in a manner that gives effect to all provisions of the solicitation;       when
solicitation is read    as a whole, provision in statement of work that agency “desires” “off-the-shelf’
proven production       system clearly means that an “off-the-shelf’     system is a mandatory       require-

B-236173.4, B-236173.5,                July 16, 1990                                       90-2 CPD 34
Competitive   Negotiation
W Competitive    advantage
n W Non-prejudicial     allegation
Protest of change or relaxation of a solicitation requirement in accepting awardee’s nonconform-
ing proposal is denied where the protester was not prejudiced and the item meets the govern-
ment’s requirements.

Page XI                                                                                Digests--July        1990
Competitive   Negotiation
n Contract awards
n H Administrative   discretion
m W n Cost/technical    tradeoffs
l n n n Cost savings
Notwithstanding   greater importance of technical factors in overall evaluation scheme, agency may
make award to lower-cost offeror where record establishes that contracting      officer reasonably de-
termined proposals to be technically equal.

Competitive  Negotiation
n Discussion
n n Adequacy
m I n Price negotiation
Since contracting agency did not consider protester’s  price to be too high for the technical ap-
proach proposed, agency was not required to conduct discussions on the price proposed by the pro-

Competitive     Negotiation
H Offers
l fl Evaluation
n n H Technical acceptability
Protest alleging awardee’s noncompliance       with mandatory    technical requirements is denied,
where the record shows that the awardee’s      proposal was reasonably evaluated by the agency as
meeting the requirements.

Competitive    Negotiation
n Technical transfusion/leveling
n W Allegation  substantiation
W U W Evidence     sufficiency
Improper technical leveling of proposals did not take place where the primary purpose of the con-
tracting agency’s discussions was to ascertain what the offeror was proposing to furnish rather
than   to raise offeror’s technical proposal to level found in protester’s proposal.

B-239035, July 16, 1990                                                              90-2 CPD 35
Competitive  Negotiation
n Requests for proposals
n U Terms
I I H Performance     bonds
Performance   bond requirement     in solicitation issued as part of a cost comparison pursuant      to
Office 01’Management    and Budget Circular No A-76, for facilities maintenance     at academic insti-
tution housing over 1,000 personnel, is unobjectionable     where substantial   government-furnished
property will be provided to the contractor for performance     of the contract and the services to be
performed are critical to the continuous operation of the facility.

Page   23                                                                        Digests-July     1990
B-239241. July 16, 1990                                                                 90-Z CPD 36

I’umpetitive   Negotiation
H (‘ontracting   officer duties
n n Contract    award ncrtification

B-239372, July 16. 1990                        --_-         ..~                       ---90-Z.--CPD 37
Procurement                            -...
Contractor    Qualification
n Approved sources
W n Qualification
W B W Delays
Protest that agency unreasonably       delayed qualilicatlon of protester’s product is denied where the
record show-s that the protester’s    failure to complete a necessary test substantially   contributed to
the delay

B-234430. July 17. 1990
Procurement                                    ---    -.-
W Shipment
n W Carrier liability
n W m Burden of proof
Where the government    has made a promo focic case of carrier liability f‘or the unexplained   loss of
a carton. the burden then shifts to the carrier to show that it was not negligent and that the loss
was due to an excepted cause The carrier has not rebutted the government’s          prinrn facie case
merely by showing that it returned a similar carton found on a trailer that it says should have
carried the mlssmg item from the carrier’s origin termmal      to a second termmal,     where the re-
turned carton was marked for a different destination    than was the lost one; involved a slightly
different weight; showed a different Terminal Control Number; and was found on a different trail-
er than the one used to pick the missing item up at origm

Page 23                                                                            Digests-July     1990
                                                                                      90-2 CPD 38

tiigtwst   priced acceptabtc ofkror under request for proposals providing for award to low cost ac-
ceptablr oft’erur is not an intrrestcd  party under Ck~rrnl Accounting        Olfice Bid Protest Rcg~la-
tiolls to protest award to low priced off~>ror. protester’s unsupported     and untimely assertion that
all intrrvvning    ofkrors  might be unacceptable    is not sul’ficicnt to establish it as an interested
party within thr meaning of the Rrgulations.

B-237342.2, July
~.____~~    -~.          17, 1990
 Hid Protests
l GAO procedures
W W GAO derisions
W W m Reversal
W n W M Additional      information
Decision sustaining protest on ground that reopening discussions with awardee to afford it an op-
portunity to make its proposal acceptable was improper is reversed where agency’s reconsideration
request shows that. as it originally   asserted. it mtbrcty allowed awardee to substitute an acceptable
Item of’f’ered as alternate in best and final olkr.

B-238216.2, .-~
            July 17, 1990                .-^__~        ~~-                            90-2 CPD 40
--               ~____
Bid Protests
W GAO procedures
H W GAO decisions
l M W Keconsideration
Socio-Economic    Policies
W Preferred products/services
W B American   Indians
Denial of protest of Bureau of Indian Aft’airs’ determlnat ion that joint venture did not qualify as a
Buy Indian Act concern, as required by the solicitation.    is affirmed where agency interpretation,
which resulted from an agency-level protest following the commencement         of negotiations with the
protester. effected no actual change in agency policy, but instead was consistent with the agency’s
published draft regulations    and was a reasonable implementation       of the Act; m these circum-
stances. the agency was not required to afford protester an opportunity     to reorganize or reimburse
protester its negotiation costs.

B-238356.2, July 17, 1990***                                                          90-2 CPD 41          I

Hid Protests
W I,uhhying
Allegation  that an oflkror’s failure to disclose expenditures for lobbying activities allegedly con-
cerning the contract award requires rejection of its proposal is without basis where the alleged
lobbying activities concern the awardee’s grievance with respect to the government’s      termination

Page ‘6                                                                           Digests-July     1990
01’the prlrrr contract,   not thts rcprocurement   award, and do not fall within   the scope uf thta disclo-
sure requirement

Procurement                          .
(‘ontraot  Management
W Contract   administration
W m Default termination
n l W Kesolicitation
n m n n hrcedures
Agency properly conducted a reprocurement       limited to the defaulted awardee and the second low
offeror under the prior solicitation, rather than making a sole-source award to the second 10% of-
fwor, where the agency had an urgent requirement        but there was sufficient time to solicit offers
from these two known potential sources.

H-238422.2, July 17, 1990                                                   -...         90-Z CPD 42
Hid Protests
H Agency-level   protests
W W Prcltest timeliness
n n n GAO review
Such-Economic       Policies
n Small business set-asides
n n Size status
n n W Administrative       discretion
n n n n G 40 review
Agency is not required to terminate award to firm where, m response to untimely protest of Small
Disadvantaged  Business ISDB) status of the awardee under an SDB set-aside, the Small Business
Administration  finds awardee is not an SDB.

H-238555.2. July 17, 1990                                                                90-2 CPD 43
Competitive    Negotiation
W Offers
W H Evaluation    errors
n W m Evaluation     criteria
W H n q Application
Protest alleging that contracting activity used undisclosed evaluation criteria is denied where the
record is clear that proposals were evaluated in accordance with the criteria set forth in the solici-

Page 27                                                                             Digests-July       1990
Cnmpetitive   Negotiation
W Offers
W W Technical acceptability
W W W Deficiency
W W W W Blanket offers of compliance
Agency properly      rejected protester’s   proposal as technically    unacceptable  where the proposal
made a bianket offer to meet all required specifications       but failed to provide sufficient detail re-
garding the solicitation’s   technical requirements.

B-238874, July 17, 1990””                                                               90-Z CPD 44
Bid Protests
W GAO procedures
W W Protest timeliness
W W W Significant     issue exemptions
W W W W Applicability
The failure of an invitation    for bids, which requested option prices, to state whether the evalua-
tion of bids would include or exclude option prices is an apparent solicitation      impropriety which
should have been protested prior to bid opening; however, the General Accounting Office will con-
sider the untimely protest under the significant     issue exception to the timelmess rules where con-
sideration of the protest is in the interest of the procurement    system

Sealed Bidding
W Bids
W W Evaluation
W W W Prices
W W W W Options
Evaluation  of bids under mvitation   for bids, which failed to state whether     the evaluation   of bids
would include or exclude the evaluation of option prices, is improper.

B-238875, July 17, 1990                                                                 90-2 CPD 45
Competitive      Negotiation
W Ibcussion
W W Adequacy
W W W Price negotiation
Cost discussions were meaningful    where record establishes that the contracting agency indicated
to the high-priced offeror that its costs should be reduced, and the offeror did, in fact, lower its
price proposal. Agency reasonably did not discuss technical areas where the evaluators found no
technical weaknesses or deficiencies    in the proposals which were included in the competitive

Page 2X                                                                            Digests--July     1990
Competitive   Negotiation
n Offers
n n Cost realism
W l W Evaluation
n M W W Administrative       discretion
Protest that contracting    agency should have performed in-depth cost realism and most probable
cost analyses is denied where solicitation   essentially requires awardee to provide a fixed number
of full-time staffers to perform the work described, at firm, fixed-price, loaded hourly labor rates,
and provides that for evaluation    purposes these rates shall be multiplied  by the number of hours
in a year of fullMime work.

B-238910, July        17, 1990                                                            90-2 CPD 46
Procurement            --
Sealed Ridding
l Low bids
W H Error correction
l I I Price adjustments
H W m n Propriety
Protest that contracting  agency improperly   denied protester’s request for upward correction of its
low bid is sustained with respect to one line item of the completed bid schedule, where worksheets
provide clear and convincing evidence of a mistake and of the intended bid for the item.

Procurement            --
Sealed Ridding
l Low bids
WI Error correction
W W W Price adjustments
I W W n Propriety
Protest that agency improperly    denied requested correction of its bid price for a line item is
denied, where protester prepared three different      worksheets addressing the item, and it is not
clear that the one worksheet indicating   the allegedly intended item price in fact reflects protest-
er’s intended item price; agency therefore reasonably concluded that protester failed to show that
the bid price was not intended.

B-239170, B-239921, July 17, 1990***                                                       90-2 CPD 47
Hid Prutests
W GAO procedures
W W Protest timeliness
W W n 1 n-day rule
Protest challenging   solicitation   listing of competitor     as an approved source, on the ground that
approval was based    on improper disclosure of protester’s proprietary          technical data, is untimely
where protester had     constructive    notice of competitor’s    approval through announcement      of prior
award to competitor    for same part in Commerce Buszrtess Dai[y more than 2 years before issuance
of solicitation

Page 2Y                                                                               Digests-July      1990

B-240224, July 17, 1990                                                               90-2 CPD 32
Socio-Economic      Policies
I Small business set-asides
n l Size status
n I n Administrative       discretion
U l W n GAO review
General Accounting     Office does not review size status determinations   made by the Small Business
Administration    (SBA) since SEA has conclusive authority     to determine small business size status
for federal procurements

Socio-Economic      Policies
I Small businesses
H n Contract awards
n n I Pending protests
m n H H Justification
A contracting officer is not required to delay contract award during the appeal period provided       for
challenges to initial Small Business Administration    size status determinations.

B-203529.2, July 18, 1990
n Shipment
m I Carrier liability
W H U Burden of proof
Carrier’s allegation that a helicopter blade lost in transit to destination  in fact had been delivered
but later was returned by the agency to origin does not rebut the government’s          prima facie case
against the carrier for loss of the blade where the agency has been unable to verify delivery or
return; t.he carrier has furnished no documentation      to support the allegation or otherwise estab-
lish delivery; and the record as developed in response to the allegation        contains no evidence to
suggest receipt at destination or return.

B-238680.2, July 18, 1990***                                                          go-2 CPD 48
Contractor    Qualification
W Responsibility
W H Contracting      officer findings
W n n Negative determination
n U W n Criteria
Awardee did not meet definitive   responsibility criterion in invitation     for bids requiring  bidders’
possession of a $100,000 working capital fund, where the contracting       officer had no objective evi-
dence that the awardee had working capital meetmg the requirement.

Page 30                                                                           Digests-July      1990
Hid Protests
H GAO authorit!

B-236713.3. July 19, 1990***                 -,_--._     . I.-                       90-2 CPD 50
Hid Protests
n GAO procedures
n W Preparation  costs
HMU Rurden of proof
Where ;I clninmnt. seeking the recover>- of its proposal preparation and protest costs, f’liils to ade-
quately document its claim to show that the hourly rates. upon wrhlch its chm     is based. reflects
the emplo~ee’s actual rate of compensation      plus reasonable overhead and fringe benefits. the
claim for costs 1s denied

B-238969, B-238971, July                19. 1990***                                  90-Z CPD 51-
Vompetitive  Negotiation
H Offers
W n Price reasonableness
n l W Determination
n n n D Administrative   discretion
Protest against dissolution of a small business set-aside and solicltatlon on an unrestricted basis 1s
proper where the contracting    officer had rational basis for determination  that the prices submit-
red by eligible small businesses were unreasonably   high.

Procurement               -
Competitive  Negotiation
n Offers
n n Price reasonableness
n mII Determination
n W n n Administrative   discretion
In considering price reasonableness under a small business set-aside, contracting officer has discre-
tion in deciding which factors to consider and a price submttted by an otherwise ineligible large
business properly may bc considered.

Socio-Economic      Policies
n Small business set-asides
n mUse
n n H Administrative       discretion
Protest against dissolution of a small business set-aside and solicitation on an unrestricted basis IS
proper where the contracting    officer had ratlonal basis for determination  that the prices submit-
ted by eligible small businesses were unreasonabl!   high.

Page 3 1                                                                         Digests-July     1990
B-238978, July         19, 1990                                                          90-2 CPD 52
C’ompetitive  Negotiation
I Offers
W n Price reasonablenens
n n W I)etermination
D H n n Administrative    discreticln
I‘ontrnctlrlg :qq~~cv’s detrrmlnatiorr     that protester f;jilrd to establish the reasonableness of its of-
fered price is upheld s~ncc the record shows that the cost and pricing data furnlshed by the pro-
tester was Inadequate    to support    its claimed costs

B-236834.3. July 20, 1990                       -~-.~                                    90-2 CPD 53
~:ompetitivc   Negotiation
l Offers
W H Evaluation    errors
H n n Evaluation     criteria
W W W H Application
Protest is sustained where agency’s determination     that rates offered were not fair and reasonable
is unsupported    hy record and where evaluation  criteria concerning rates were applied to offerors

-B-237651.4, July 20. 1990                                                               90-2 CPD 54
Bid Protests
n Moot allegation
n m GAO review
Special Procurement    ~fethods/CateFories
n In-house performance
m W Administrative  discretion
n I n GAO review
Dismissal of protest as academic following cancellation   of invitation and agency’s decision to per-
form in-house is aflirmed smce contrary to the protester’s argument there is no requirement      that
a decision to perform a function in-house be supported by a cost study under OMB Circular A-76
and agency--wide guidelines for performance of support services supports agency’s position that the
decision to perform the services in-house was not made to avoid the consideration     of the protest.

B-238610.2, July 20, 1990
C’ompetitive    Negotiation
H Discussion     reopening
n W Auction     prohibition
Despite disclosure by agency of competitors’ prices, agency’s decision to reopen discussions and re-
quest best and final offers after amending solicitation    clarifying ambiguous mannmg requirement
is not objectionable.   Risk of possible auction is secondary to the need to preserve the integrity of
the cumpetltivr    procurement   system.

Page 32                                                                              Digests-July      1990
-..-.-.   ~
Procurement             .--.
(‘ompetitive  Negotiation
n IIiscussion reopening
n H Propriety
W W W Rest/final  offers
B n n n Competitive     ranges
Agency properly determined that correction of omission of required manning levels from offeror’s
proposal as a result of ambiguous manning specifications in the solicitation requires reopening dls-
cussions with all offerors in the competitive range, since allowing correction effectively gives of-
fcror an opportunity to make its proposal acceptable

B-238942, July 20, 1990                                                            90-2 CPD 55
Socio-Economic      Policies
n Preferred products/services
W n Domestic products
W n n Interpretation
F’rotest is sustained where agency improperly rejected protester’s low bid for offering foreign end
items on the basis that operation consisting of placing components in an envelope and sealing it
performed abroad-which       did not substantially  transform the completely domestic components of
a tracheal suction set-constituted    “manufacturing”     within the meaning of the Buy American Act
and the Trade Agreements Act of 1979.

B-238965, July 20, 1990***                                                         90-2 CPD 56
Competitive Negotiation
W Contract awards
n n Propriety
W W W Evaluation      errors
W W n W Materiality
Competitive Negotiation
W Requests for proposals
W U Terms
n W W Compliance
Protest alleging that agency improperly made award to firm whose product does not conform to
specifications is sustained where record shows that agency in fact relaxed material requirements
of specification for awardee and such action was prejudicial to the other competitive range offer-

 Page 33                                                                       Digests-July    1990
B-238973, July 20, 1990***                                                          90-2 CPD 57
Competitive  Negotiation
H Best/final  offers
n H Pricing errors
H WI Correction
W W n W Propriety
Where, before award, but after receipt of’ best and final offers, an offeror claims a mistake in its
proposal, agency may-but     IS not required to-reopen    negotiations with offerors to allow the of-
feror claiming the mistake to revise its proposal, if the agency determines it is clearly in the go\‘-
ernment’s best interest to do so.

Competitive    Negotiation
W Discussion
n W Adequacy
l n n Criteria
Protest that agency failed to properly notify it of possible errors where agency specifically cited
only one item and failed to cite a second item is denied where both items were identical, except for
shipping costs, and an error in one would have identified an error in the other.

Competitive   Negotiation
I Discussion reopening
n n Propriety
Where, during discussions. agency requested the protester to review its proposed pricing on a spe-
cific item and protester verified its original price, agency determination not to reopen negotiations
to allow protester to correct a subsequently discovered error is reasonable since protester was pre-
v~ously provided an opportunity     to review its proposal and further negotiations   would result in
unacceptable delay of performance

B-238980, July?O,            1990                                                   90-2 CPD 58
Procurement --.-
C’ompelitive  Negotiation
n Offers
n W Competi?ive ranges
n n H Exclusion
H n n n Discussion
Where agency’s proper removal of 49 pages f’rom protester’s proposal resulted in significant   tech-
nical deficiencies. agency reasonably concluded that protester’s proposal would require major rev)-
sions to become acceptable, and eliminated    protester from the competitive range without conduct-
ing discusslons

Page 34                                                                         Digests-July     1990
Competitive  Negotiation
q Requests for proposals
H n Terms
n W n Compliance
M’here solicitation   set forth line, type size, and page limitations   on offerors’ proposals and warned
that pages exceeding these limits would not be evaluated. agency properly rejected 49 pages of
protester’s proposal which exceeded the limits set. In view of the number of pages involved and
the plain requirements      of the solicitation. protester’s failure to comply with limits did not consti-
tute minor irregularity     and, thus, reasonably was not waived or corrected as clarification.

H-239023, July-~o,          1990               -                                       90-Z CPD 59
 (‘ompetitive  Negotiation
l Offers
W W Evaluation    errors
n n n Evaluation     criteria
n n n n Application
Protest challenging evaluation of protester’s proposal is denied where solicitation’s technical and
cost criteria were of essentially equal importance; the contracting agency’s cost realism and tech-
n1ca1 approach analysis were reasonably based; and the awardee offered the proposal with the
highest technical rating and the lowest probable cost.

H-239662, July 20, 1990                                                                 90-2 CPD 60
Sealed Bidding
n Luw bids
H W Error correction
W W W Price adjustments
W W W W Propriety
Protest  that agency improperly     allowed correction     of mistake in low bid after bid opening is
denied where mistake was apparent         clerical error   and could be readily corrected by applying
standard mathematical  calculation.

H-240329, July 20, 1990                                                               - 90-2 CPD 61
Procurement     ~-~
 Hid Protests
W GAO procedures
l W interested parties
n W W Direct interest standards
A trade association which represents reforestation contractors is not an interested party to bring a
protest against an allegedly improper award because it is not an actual or prospective bidder or
offeror, if the requirement were resolicited.

                                                                                   Digests-July      1990
B-236834.4, July 23, 1990                                                                90-2 CPD 62
Competitive    Negotiation
n Offers
n W Evaluation    errors
H W W Evaluation     criteria
l n n n Application
Protest is sustained where agency’s determination that rates offered by protester were not fair
and reasonable is unsupported by record and where evaluation criteria was misapplied OF applied
to offerors inconsistently.

B-239114, July 23,199O                                                                   90-2 CPD 63
Bid Protests
n Moot allegation
H n GAO review
Protest against the designation of an accounting system certification         requirement in a negotiated
procurement    as relating to proposal “responsiveness”      is academic where the agency states that it
will consider the requirement    as a matter of responsibility    and in fact does so

H Minimum      needs standards
H W Determination
H n n Administrative     discretion
Protest against the broad manner in which a requirement    is written is denied where agency ex-
plains the need for the requirement and the protester does not show that the agency’s position is

B-239203, July 23,199O                                                                    90-2 CPD 64
Sealed Bidding
n Invitations  for bids
n n Terms
n n n Risks
Protest allegation that solicitation    for requirements      contract precludes bidders f’rom reasonably
calculating   bid prices-because    the solicitation     does not guarantee a minimum        payment to the
contractor-is    denied where the solicitation       contains annual estimates of items needed and the
contractor’s expected hourly rate of work, and advises bidders of possibility that rate of work may
double or triple in some instances. It is the bidder’s responsibility      in bidding a fixed-price contract
to project costs and allow far risks-      that, for example, the income derived from agency’s orders
may not encompass all costs-in       computing its bid.

Page 36                                                                              Digests-July      1990
Sealed Kidding
W Hid guarantees
n W Responsiveness
n n n Invitations     for bida
n W n W Identification

R-2.40411. Julv 23. 1990                                                               90-2 CPD 66
Procurement      -.-   -._-.__--..-. .-
(‘ontract    Management
n   Contrart   administration
n   n Convenience      termination
n   n l Administrative      determination
n   n n n GAO review
The (knew1     Accuuntlng   Office does not rrvieH agency decisions to terminate       contracts Ibr the
convenience of the gowrnment-except        when the termination    results from an agency’s determina-
tlon that the agency improperly      awarded the initial contractpSlnce       contract termination   IS a
matter of contract admlnietration   not withln its bid protest function

Page        37                                                                    Digests-July      1990
B-238977.2, July 24. 1990                                                              90-2 CPU 67
 Hid I’rotests
H GAO procedures
n I Administrative     reports
n-~ n n- (‘omments
               ~__ timeliness
                     ~.      ~     -     ~~     ~     ~~   ----... ~~~ ~
Hid thtests
8 GAO prorcdures
H W GAO decisions
n W n Heconsideration
Protester’s I:atr recript of’ agency report H not :I basis I’or reopening protest dismissed for failure to
lile comments or express continued Interest in the protest within IO working days after receipt of
agency report. where protestc~r Ihiled to nutili General r2ccounting Of’lice (GAOt that it had not
received rrport until after due date shown on C 40 notice acknowledging          receipt of' protest.

B-239006.3, July 24, 1990                                                               90-2 CPD 68
Procurement         .-.~
Hid Protests
m GAO procedurw
m W GAO decisions
l m n bxonsiderdtion
Bid Protests
H GAO procedures
n H Protest timeliness
W m l lo-day rule
Grneral :\ccounting     Oflice t(~AOl al’lirms its dismissal of‘ a protest which was untimely because it
was filed mow than 111wol-king days alter protrster received a letter f‘rom the contracting      agency
which gave the precise reasons giving rise to the basis 01‘the protest. Moreover, even assuming an
earlier letter from the protester to GA0 should bv considered a protest, as argued by the protester.
the protest IS still untimely as the earlier letter was also recrlved more than 10 working days after
the date the basis of protest was known

Page 3X                                                                            Digests-July      1990
-B-23901 OJuly         24, 1990                                                       90-2 CPD 69
Hid Protests
n GAO procedures
n n Interested  pdrtk!S
n n W Direct interest         standards
Procurement                      ~
Competitive     Negotiation
n Offers
n W Competitive     ranges
W W H Exclusion
W n n n Lldministrdtive         discretion
Protester whose proposal *as reasonably found to he technically      unacceptable is not an interested
party to challengcb thv acceptability of the proposed awardee’s proposal where other acceptable
proposnls would be in lone fbr award if’ the protest were sustained.

Procurement                          _-
Competitive    Negotiation
W Offers
B W Evaluation
W H W Technical acceptability
Protest IS denied where agency reasonably found that protester’s proposal was technically      unac-
ceptable and not within the competitive  range because, Ibr example, lt did not contain an explana-
tion as to how the protester’s proposed staff would meet unexpected surges in manpower require-
ments. and it did not explain how the proposed staff’ could accomplish multiple subtasks to be
issued under a resulting contract

B-239075, July 24,M?O
---                                          --“-_-.                                  90-2 CPD 70
Competitive   Negotiation
W Competitive    advantage
l I Non-prejudicial     allegation
Protest  that competition    for requirements   contract   was unequal   because allegedly erroneous
advice was given to the protester with respect to an ordering clause, which provided for ordering
by the most cost-effective method to the government,     is denied where there is no indication in the
record that any erroneous advice was given and, in any event, the ordering clause did not affect
the agency’s already existing ability to order in the most cost advantageous manner.

B-239116, July 24, 1990                                                               90-2 CPD 71
Competitive   Negotiation
W Offers
n W Competitive    ranges
B n n Exclusion
n n W l Administrative    discretion
Protest that proposal was improperly    excluded from competitive     range based on price is denied
where record does not support protester’s contention that in determining      its price it relied on in-
formatIon not revealed to other offerors as to the true scope of work, and thus that protester effec-
tiwl?; was the only offeror whose price accurately reflected the solicitation requirements.

Page   39                                                                         Digests-July     1990
B-239173, July 24, 1990                                                                      90-2 CPD 72
Procurement                                            ~.____
Special Procurement  Methods/Categories
W Federal supply schedule
n W Offers
W H l Rejection
W n W W Propriety
Where protester     failed to provide    test data showmg that its off’ered product will meet a specifica-
tion requirement,     the contracting     agency properly rejected protester’s product as nanresponsive

B-239191, July 21, 1990                                                                      90-2 CPD 73
Competitive    Negotiation
W Offers
W n Price disclosure
W W n Allegation    substantiation
n n I H Evidence sufficiency
Protest is denled where protester’s       allegations thal agency conducted improper negotiations         with
one olltiror and d~sclosrd protester’s    price ar-e unsupported by any evidence in the record.

B-239217, July 24, 1990                                                                      90-2 CPD 74
Bid Protests
n GAO procedures
W II Interested parties
General Accounting      Oi’fice will not consider issues which are essentially made on behalf’ of other
potenttal competitors    who themselves may properly protest as interested parties.
Competitive    Negotiation
W Hequests for proposals
n W Evaluation    criteria
W n l Cost/technical       tradeoffs
W n l n Weighting
Contacting agency has dlscretlon in the selection of’ evaluation factors tbr a solicitation so long as
such factors reasonably relate to the agency’s nerds in choosing a contractor that will best serve
the government’s   interests.

Competitive  Negotiation
W Requests for proposals
W n Terms
W n n Kisks
There is no requirpmrnt     that an agency eliminate     all uncertainty   ur risk f’rom a sullcitatron

Paye !(I                                                                                Digests-July      1YYU
-B-239233, July 24. 1990                                                                90-2 CPD 75
 Procurement                                              “--                                            -
Competitive   Negotiation
n Competitive    advantage
n n Non-prejudicial     allegation
(‘ontention   that agency Improperly      relaxed solicitation   requirements   by making award to low
hidder is denled whew the requirements,          which allegedly were not relaxed for awardee, were not.
in fact. included 111 the solicitation  but wpre erroneously       inferred by the protester based on an
unreasonable    interpwtatlon  of the solicitation.

-B-239297, July 21, 1990                                                                90-2 CPD 76
 Procurement                                                    -
Competitive    Negnliaticm
n Contract awards
n n Administrative      discretion
n n n Technical equality
I I I n Cost saving?
Whew agency determined        that protester’s high-priced     alternate proposal, first introduced  in its
best and final of’f’er. and awardre’s proposal were essentially technically       equal, awardee’s signifi-
c;lntlq lower price properly became the determlning        factor in the agency’s selection ol’ the award-

(‘ompetitive  Negotiation
n Ikcussion
W W Determination      criteria
Subsequent to the submission of best and final off’ers and prior to award, agency’s request that
awardee verily and explain its lower hourly rates for particular    labor categories did not constitute
discusslow because awardee was not given an opportunity          to revise or modify its proposal, but
information  was obtained solely to determine responsibility  of firm.

Competitive    Negotiation
n Offers
l I Evaluation
n I a Wage rates
Where request for proposals required offerors to propose fixed labor rates, agency was not required
to make award to protester where its proposal stated that labor rates contained in the proposal
we It’ “average“ rates rather than firm prices and that offeror intended to charge different   rates
alter :tward depending upon skill levels of personnel assigned to perform each task order.


                                                                                    Digests-July      1990
B-236389, July 25, 1990
n Shipment costs
W H Additional    costs
n n H Evidence sufficiency
Small Purchase      Method
I Quotations
W n Evaluation
n n n Technical     acceptability
The Military Traffic Management     Command’s      Freight Traffic Rules Publication  No. IA precludes
a carrier from assessing an additional charge     for exclusive use of vehicle service when “per mile
per vehicle used” rates apply.

B-239345, B-239345.2,               July 25, 1990                                       90-2 CPD 77
Small Purchase      Method
W Quotations
n m Evaluation
n n I Technical     acceptability
Contracting    agency properly rejected offerors’ quotations where the offerors     did not provide suffi-
cient information      to demonstrate that their offered products were equivalent    to the product speci-
fied in the solicitation.

B-237728.2, July 30, 1990                                                               90-2 CPD 78
Bid Protests
W GAO procedures
W n GAO decisions
n n W Reconsideration
Prior decision holding that agency properly elected to order a non-mandatory      item from a federal
supply schedule (FSS) contract when agency determined      that burden and cost of new procurement
outweighed    protester’s $222 cost advantage is affirmed, where protester’s argument that cost of
placing an order with it are the same as for the FSS contractor,      does not take into account the
requirement    that agency conduct a procurement   under small purchase procedures.

B-238055.2, July 30, 1990                                                               90-2 CPD 79
Bid Protests
W GAO procedures
n n GAO decisions
n n n Reconsideration
Dismissal of protest as untimely   is affirmed where on reconsideration protester contends that it
was not read draft rejection letter as stated in the decision but does not deny that at the same
time it was orally informed of the agency’s rejection of its offer.

Page   Xl                                                                           Digests-July     1990
R-2381 12. July 30, 1990                                                         ~_
n I’nauthorized    contracts
n W Quantum      meruit/valebant           doctrine
The IXyx~rtmrnt    of Educxt ion may not pay II cln~m I’lled b: :I contractor who remained on the job
for sever:~l months after Its contract had vsplred Where :I contractor renders service on the mere
hope that his proposal tvill materialize  and a contract nmy be entered into. such servws are vol-
untary and not reimbursable

H-238223.2. R-23X223.3. July 30. 1990                                                    90-2~~-CPD
                                                                                                .“..--- 80
 Competitive       Negotiation
W Contract awards
n n Fixed-price       contracts
n n m Cost/technical           tradeoffs
Competitive   Negotiation
n Offers
M n Cost realism
m n H Evaluation
W W n n Administratke            discretion
.4ward of contract at fixed price lower than that Initially offered by protester. where certain items
of protester’s prices N-err criticized by evaluators as unrealistically low. does not establish that the
agency applied a stricter price realism standard to the protester than to the awardee. Agency rea-
sonably concluded that 111certain areas the protester’s low imtial offer coupled with corresponding
technical deficienclea indicated a lack of understanding    and ability to perform the contract at the
offered price. but reasonably did not have the same reservations about the awardee because of its
technically superior offer.

Competitive    Negotiation
H Offers
n W Evaluation    errors
W n W Non-prejudicial      allegation
Protester was not prejudiced by reevaluation    of all ofl’erors’ initial proposals by technical evalua-
tion review panel. conducted in accordance wth source selection plan. which lowered protester’s
“rechnically acceptable” score to a level considered “technically       unacceptable but capable of being
made acceptable.” whew protester was kept in the competitive             range. advised of its deficiencies
during discusslons. and successfully corrected them In its best and final offer.

Page 13                                                                             Digests-July      1990
B-238694.3, July 30, 1990                                                               90-2 CPD 81
Hid Protests
n GAO procedures
W n G-40 decisions
n W n Reconsideration
A contractor    adversely af’fected bv a prior General Accounting   Office decision is not elwble  to
request reconsideration     of the decision where the firm was aware of the original protest but did
not participate   in the protest proceedings.

-.B-239016.2, July 30. j990                                                             90-2 CPD 82
(‘ontractor   Qualification
W Responsibility
n n Contracting      officer findings
W II m Affirmative      determination
n n W n GAO review
Allegation     that nwardee cannot perform in accordance wth the sollcitation‘s manning requlrr-
ments concerns the contracting      agency’s af’firmatlve  responsibility determinatwn     which the Gen-
era1 Accounting Of’fice will revww only where the protester makes a showing that the contracting
ot’ficials acted fraudulently or in bad faith or misapplied definitive responsibility  criteria.

                                                                                   Iligests-July    1990
Ikmtractor    Qualificatirrn
W Responsibility
n n Ctrntracting     officer findings
W n W Affirmative      determination
n H W n C.40 review                                                                         -.
Procurement                                                                                 ~.
Sealed Ridding
l Below-cost bids
m W Contract awards
n W n Propriety
Protest  that agency should not have accepted bid because it is too low is dismissed as there is no
legal basis on which to object to the submission or acceptance of a below-cost bid. Protester’s sug-
gestion that awarder is unable to perform at its bid price concerns the contracting   officer’s affirm-
ative determination  uf responslblltty, a matter which General Accounting      Office generally does
not review.

B-239148, July 30, 1990                                                                90-Z CPD 83
Contract Management
n Contract administration
n m Ccmvenience termination
n W W Administrative     determination
W W W n GAO review
Protest that contracting  agency improperly    terminated   contract is dismissed since the termination
involves a matter of contract administration    not reviewed by the General Accounting Office.

B-23921 1, July 30, 1990                                                               90-2 CPD 84
(:ompetitive   Negotiation
W Rest/final    offers
W n Contractors
n W n Notification
Competitive   Negotiation
n Requests for proposals
W l Amendments
W W m Submission     time periods
m W n W Effects
Where an amendment       relaxing the specifications for a national stock number item does not explic-
itly request competitive   range offerors to submit their best and final offers [BAFOs), but contains
language giving notice of a common cutoff date for receipt of revised offers, the amendment        has
the intent and effect of a request for BAFOs; under the circumstances         in which the amendment
was issued (after completion     of preaward survey, where solicitation  provided for award to lowest-
priced, responsible offeror), protester had no reasonable basis for alleged expectation that BAFOs
would not be requested until discussions were held.

Page i5                                                                           Digests-July      1990
B-239246.2, July 30, 1990                                                               90-2 CPD 85
Sealed Bidding
n Bids
n n Modification
n W l Late submission
n n I W Determination
Where contracting     officer. due to prison security arrangements,    collected bids after announcing
bid opening time, it was impllcit that bid submission would contmue until all bids were submitted;
allowing one bidder to modify bid to incorporate envelope modification        after bid initially had been
presented to contracting      officer merely delayed conclusion of bid submission process and did not
render bid late ti,hen it finally was submitted after modification   was completed.

B-239328, Juiy 30, 1990                                                                 90-2 CPD 86
Sealed Ridding
m Bids
n n Responsiveness
n I l Descriptive  literature
H n B W .4dequacy
D Brand name/equal       specifications
n W Equivalent products
H n W Salient characteristics
H l n W Descriptive   literature
Where a brand name or equal solicitation     required submission of descriptive literature  sufficient
to establish that the offered item conforms to the salient characteristics  and bidders were advlsed
that failure to do so would require rejection of their bids, the procuring agency properly rejected
as nonresponsive   a bid that included descriptive Ijtcrature  which failed to show compliance with
several salient characteristics

R-210061. July_ 30. 1990                       .--__                                    90-2 CPD 87
Sealed Hidding
M Bids
W l Responsiveness
W m W Price omission
n m n l Line items
Rid that   omitted a separate price for a bid item that was subject to a statutory cost limitation    was
properly   rejected as nonresponsive since this provision is a material term of the solicitation

f’aKe 16                                                                           Digests-July      199U
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