Current GAO Officials Comptroller General of the United States Charles A. Bowsher Deputy Comptroller General of the United States Vacant Special Assistant to the Comptroller General Milton J. Socolar General Counsel James F. Hinchman Deputy General Counsel Vacant Page i , Contents ... Preface 111 Table of Decision Numbers iv Digests Appropriations/Financial Management 1 Civilian Personnel 4 Military Personnel 10 Miscellaneous Topics 13 Procurement 14 Page ii Preface This publication is one in a series of monthly pamphlets entitled “Digests of Decisions of the Comptroller General of the United States” which have been published since the establishment of the General Accounting Office by the Budget and Accounting Act, 1921. A disbursing or certifying official or the head of an agency may request a decision from the Comptroller General pursuant to 31 U.S. Code 8 3529 (formerly 31 U.S.C. $8 74 and 82d). Decisions concerning claims are issued in accordance with 31 U.S. Code 5 3702 (formerly 31 U.S.C. 5 71). Decisions on the validity of contract awards are rendered pursuant to the Competition in Contracting Act, Pub. L. 98-369, July 18, 1984. Decisions in this pamphlet are presented in digest form. When requesting individual copies of these decisions, which are available in full text, cite them by the file number and date, e.g., B-229329.2, Sept. 29, 1989. Approximately 10 percent of GAO’s decisions are published in full text as the Decisions of the Comptroller General of the United States. Copies of these decisions are available in individual copies, in monthly pamphlets and in annual volumes. Decisions in these volumes should be cited by volume, page number and year issued, e.g., 68 Comp. Gen. 644 (1989). Page iii , Table of Decision Numbers -’ B-192567.3. Aueust 1. 1990 1 B-238304, August 27, 1990*** 7 B-220542.12, August 2, 1990*** 5 B-238372, August 1, 1990 4 B-227411.2, August 21, 1990 6 B-238436.5, August 31, 1990 50 B-231061.3. Aumst 28. 1990 7 B-238537, August 1, 1990 4 B-231799, August 21, 1990 10 B-238540, August 30, 1990 11 B-232527, August 31, 1990 12 B-238589, August 13, 1990 10 B-232657. Aueust 22. 1990 6 B-238623, August 1, 1990 4 B-233663, August 31, 1990 12 B-238625,3, August 28, 1990 42 B-234047.4, August 20, 1990 36 B-238653, August 2, 1990 5 B-234347. August 6. 1990 13 B-238654.2, August 9, 1990 25 B-234434.2, August 24, 1990*** 39 B-238706.3, August 16, 1990 30 B-235458, August 23, 1990 3 B-238725, August 14, 1990 5 B-235887. Aueust 30. 1990 3 B-238729, August 29, 1990 8 B-235887, August 30, 1990 8 B-238793.2, August 6, 1990 19 B-236018, August 22, 1990 11 B-238857, B-238857.2, August 2, B-236549. August 13. 1990*** 2 1990 15 B-236564.4, August 6, 1990 19 B-239034, August 2, 1990* * * 16 B-236961.6. August 15. 1990 28 B-239041.2, August 6, 1990 19 B-237531.3, August 17, 1990 34 B-239056, August 1, 1990 14 B-237542, August 28, 1990 8 B-239104.2, August 6, 1990 20 B-237596.3, August 8, 1990 24 B-239113, B-239113.2, August 6, 1990*** 20 B-237676.2, August 3, 1990 18 B-239119, August 2, 1990 16 B-237868.2. Aueust 13. 1990 27 B-239120, B-239120.2, August 2, B-237960.2, August 29,199O 47 1990 17 B-238093, August 28, 1990 8 B-239123, August 7, 1990 23 B-238117.2, August 17, 1990 34 B-239142.2, et al., August 17, B-238129. August 22. 1990 6 1990 34 B-238235.3, August 28, 1990 42 B-239148.2, August 31, 1990 50 “‘(notes published decisions) Cite published decisions as 69 Comp Gen - Page iv Table. of Decision Numbers Page Page B-239155, August 24, 1990 7 B-239431, August 31, 1990 51 B-239172, August 2, 1990 17 B-239432, August 29, 1990 47 B-239178, August 6, 1990 21 B-239433, August 27, 1990 42 B-239182, August 10, 1990 25 B-239457, August 24, 1990 40 B-239189, August 1, 1990 14 B-239460, August 23, 1990 38 B-239190, August 6, 1990 21 B-239467, August 16, 1990 32 B-239192, August 13, 1990**” 27 B-239498, August 29, 1990 48 B-239200, August 13, 1990*** 27 B-239499, August 29, 1990 49 B-239209, August 6, 1990 21 B-239503, B-239503.2, August 24, B-239216, August 13, 1990 28 1990*** 40 B-239219, August 3, 1990 18 B-239516, August 29, 1990 49 B-239223, August 10, 1990 26 B-239520, August 16, 1990*** 2 B-239238, August 6, 1990 22 B-239525, August 31, 1990 51 B-239252, August 15, 1990 29 B-239534, August 28, 1990 43 B-239270, August 6, 1990 22 B-239543, August 28, 1990 44 B-239287, August 16, 1990 30 B-239550, August 28, 1990 44 B-239301, August 20, 1990 36 B-239565, B-239566, August 21, 1990 37 B-239303, August 15, 1990 29 B-239568, August 28, 1990 45 B-239313, August 14, 1990 28 B-239579, August 29, 1990 49 B-239334, B-239764, August 17, 1990*** 35 B-239619, August 28, 1990 45 B-239342, August 22, 1990 38 B-239620, August 28, 1990 46 B-239358, August 23, 1990 38 B-239673, B-239844, August 16, 1990 33 B-239386, August 28, 1990 42 B-239681, August 28, 1990 46 B-239389, August 16, 1990 31 B-239808, August 28, 1990 46 B-239404, August 16,199O 31 B-239858.2, August 16, 1990 33 B-239416, August 28, 1990 43 B-239904, August 30, 1990 50 B-239428, August 29, 1990 47 B-239906, August 17, 1990 35 Page v Table of Decision Numbers Page Page B-239912.2, August 15, 1990 30 B-240450, August 8, 1990*** 25 B-239919, August 28, 1990 46 B-240477, August 3, 1990 19 B-240043, August 1,199O 14 B-240533, August 2, 1990 18 B-240095, August 1, 1990 5 B-240545, August 10, 1990 26 B-240121.2, August 6, 1990 23 B-240549, August 17, 1990 35 B-240193, August 1, 1990 15 B-240680, August 24, 1990 41 B-240221, August 14, 1990 10 B-240768, August 31, 1990 52 B-240281, August 31, 1990 9 B-240776, August 21, 1990 37 B-240337, August 30, 1990 11 B-240807, August 24, 1990 41 B-240381, August 16, 1990 33 B-240850, August 24, 1990 41 B-240382.2, August 6, 1990 23 B-240906, B-240909, August 24, B-240443.2, August 20, 1990 37 1990 41 Page vi .. Appropriations/Financial Management B-192567.3, August 1,199O Appropriations/Financial Management Accountable Officers n Illegal/improper payments H n Liability restrictions H W W Compromises An agency’s agreement with an accountable officer to settle adverse personnel action has no affect on the accountable officer’s liability to the United States in the amount of the loss and does not restrict the agency’s authority to recover that amount from the accountable officer by taking ap propriate collection action. Appropriations/Financial Management Accountable Officers n Liability W W Statutes of limitation n n H Effective dates W n n W Illegal/improper payments In the absence of any indication in the statute or its legislative history to the contrary, a statute governing government employees applies to former employees who fell within its scope during em- ployment. Therefore, Department of Treasury’s authority under 26 U SC § 7803(0 (1988) to recov- er amounts collected by an employee in connection with the internal revenue laws for which the employee has failed to account does not lapse once the employee leaves Treasury employment No statute of limitations applies to an action against an accountable officer under Internal Revenue Code section 7803(c). Appropriations/Financial Management Accountable Officers E Relief W n Illegal/improper payments H W W GAO decisions n W n n Reconsideration This Office will reverse a prior decision denying an accountable officer rehef where the prior deci- sion was based on a material error of fact or law. An accountable officer’s good faith and lack of willful intent to disregard established procedures do not preclude a finding of negligence and, thus, provide this Office with no basis on which to reverse a previous denial of relief. Page 1 Digests-August 1990 . B-236549, August 13,1990*** Approt.viations/Financial Management Federal Assistance W Grant recipients W W Advances W W W Interest In the Urgent Supplemental Appropriations Act, Pub. L. No. 99-349, 100 Stat. 710, 725 (1986), which directed that Syracuse University receive a research grant, Congress did not evidence a clear intent that the University have the benefit of interest earned on grant funds. The general rule therefore applies that interest earned by a grantee on funds advanced by the United States belongs to the United States rather than the grantee and must be paid to the United States. See 42 Comp. Gen. 289,293 (19621. Appropriations/Financial Management Federal Assistance n Grants W H Interest W n n Computation In absence of evidence documenting actual interest earned, Navy properly computed interest by using the B-month Treasury rate provided in 4 C.F.R. 9 102.13(c) (19891. See 31 U.S.C. 8 3717 (1982). B-239520, August 16, 1990*** Appropriations/Financial Management Appropriation Availability H Purpose availability n n Appropriation restrictions H W W Leasehold improvement The Federal Aviation Administration may award a contract for permanent improvements to a leasehold because Congress has specifically appropriated money for the alterations. The appropria- tion is thus available despite the policy prohibition against government improvements to privately owned property. Appropriations/Financial Management Appropriation Availability W Purpose availability I H Contracts The Federal Aviation Administration may award a contract for permanent improvements to a leasehold because Congress has specifically appropriated money for the alterations. The appropria- tion is thus available despite the policy prohibition against government improvements to privately owned property. Page 2 Digests-August 1990 B-225458, August 23,199O Appropriations/Financial Management Accountable Officers H Cashiers W n Relief 4 W n Physical losses WHBBTheft Under the provision of 31 U.S.C. $3527(a), we grant relief from liability for a loss of $28,960 to a Veterans Administration (VA) Medical Center Alternate Agent Cashier. The loss resulted from a robbery by an unknown assailant. The FBI determined that the Alternate Agent Cashier was not implicated in the robbery and the agency head concluded he was carrying out his duties and was not at fault at the time of the incident. B-235887. August 30.1990 Appropriations/Financial Management Claims Against Government n Statutes of limitation A federal employee who retired in 1987, seeks reimbursement for annual leave not credited him in 1968 when he transferred from the Panama Canal Company to the Atomic Energy Commission. A claim for undercredit of annual leave is a continuing claim and, if not credited during the employ- ee’s period of service, eventually merges into a claim for payment of its lump-sum value upon sep- aration from federal service. The employee was separated by reduction in force on September 28, 1981, and received a lump-sum payment for annual leave. Thus, any claim he had for a prior un- dercredit of annual leave merged into a claim for a lump-sum payment that accrued on that date. Since the claim was not received here until June 16, 1989, more than 6 years after it accrued, the claim is barred from consideration under 31 U.S.C. 5 3702(b) (19881 and may not be paid. Page 3 Digests-August 1990 Civilian Personnel B-238372, August 1,199O Civilian Personnel Relocation n Residence transaction expenses n n Finance charges This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. B-238537, August 1, 1990 Civilian Personnel Compensation n Retroactive compensation n n Amount determination n n n Part-time employment H n n H Work schedules This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. B-238623, August 1,199O Civilian Personnel Travel H Temporary duty n w Determination Civilian Personnel Travel H Temporary duty n n Per diem n n n Eligibility Whether an assignment to a particular station is temporary or permanent is a question of fact to be determined from the orders under which the assignment is made, the character of the assign- ment, its duration, and the nature of the duties. Thus, an employee’s 18-month assignment meets the criteria for designation as temporary duty, so as to entitle him to reimbursement of per diem, where his initial assignment was for 120 days, with several 120-day extensions, and when he had varying short-term duty assignments of the type normally assocrated with temporary duty assign- ments. Page 4 Digests-August 1990 . B-230095, August 1,199O Civilian Personnel Travel W Temporary duty W W Travel expenses W W W Reimbursement W W W W Amount determination This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. B-220542.12, August 2,1990*** Civilian Personnel Travel W Bonuses W W Acceptance W W W Propriety The Department of Health and Human Services, Region VI, maintains airline frequent flyer ac- counts for its employees who travel on official government business. Since GSA regulations do not provide for a system in which the agency may return these materials to employees and employees have no property rights in the materials, the accounts may not be returned to employees upon separation or retirement even if the agency determines it has no use for the benefits. B-238653, August 2,199O Civilian Personnel Compensation W Overpayments W W Error detection W W W Debt collection W W W W Waiver Waiver of overpayment of salary is granted to an employee who accepted a position at a lower rate of pay and continued to receive the higher pay of her prior position. There is no indication that the employee was at fault where she questioned her pay and was led to believe that she was entitled to retained pay. B-238725, August 14, 1990 Civilian Personnel Compensation W Training expenses W W Reimbursement W W W Breach of service agreements An employee who resigned from her position after receiving training in a non-government facility but prior to completing her service obligation mandated by 5 U.S.C. 3 4108(a) (19881, is obligated to repay the government a proportional amount of the training expenses as required by statute and regulation. Furthermore, there is no indication in the record that the agency was arbitrary or ca- pricious in denying the employee’s request for waiver of the training expenses under the provi- sions of 5 U.S.C. 5 4108(c) (1988). However, due to ambiguity in the employee’s written service agreement. her service obligation should be limited to the mmimum time required by law. Page 5 Digests-August 1990 B-227411.2. August 21,199O Civilian Personnel Compensation W Overpayments W W Error detection W W W Debt collection W W W W Waiver Foreign Service Nationals employed by the United States in foreign areas pursuant to local labor agreements are considered employees for the purposes of the wavier statute, 5 U.S.C. 0 5584 (1988). Waiver of erroneous overpayments of night differential pay is granted where all the qualifications for waiver have been met and the employees were unaware of any error in the payments prior to our decision, VOA Relay Station, Antigua, B-227411, May 19, 1988. B-232657, August 22, 1990 Civilian Personnel Travel W Temporary duty W W Travel expenses W W W Reimbursement W W W W Experts/consultants An intermittent consultant, while traveling, may not be paid for lodging in a condominium which the consultant owns and holds as rental property, leased to a corporation of which he is president, absent clear and convincing evidence that the consultant incurred expenses in addition to owner- ship lodging expenses B-238129. August 22, 1990 Civilian Personnel Compensation W Overpayments W W Error detection W W W Debt collection W W W W Waiver Civilian Personnel Leaves of Absence W Annual leave W W Computation errors W W W Error correction W W W W Unused leave balances Due to the Smithsonian Institution’s error in calculating one of its General Schedule employee’s service computation date, the number of hours of leave that the employee accrued each pay period was overstated and, thus, the employee’s annual leave account was overcredited. While we have not decided whether the Smithsonian is an agency within the meaning of the waiver statute, 5 U.S.C. $5584, since there was a positive balance remaining in the employee’s leave account for each year after the agency adjusted her account to correct the error, the overcredit of leave does not amount to an overpayment of pay which may be considered for waiver. Page 6 Digests-August 1990 . B-239155, August 24,199O Civilian Personnel Relocation W Residence transaction expenses W W Reimbursement W n n Eligibility W W W W Property titles Transferred employee may be reimbursed for only 50 percent of his real estate sales expenses since he and his wife held title jointly with her in-laws who had provided downpayment for house and were not members of his immediate family Thomas A. Fournrer, B-217X25, Aug 2, 19X5, ds- trnguwhed. B-238304, August 27,1990*** Civilian Personnel Compensation W Compensation retention W W Eligibility A former Postal Service employee claims grade and pay retention as a result of his transfer to the Air Force. The grade and pay retention provisions in 5 US C $5 5362 and 5363 do not apply to an employee transferring from the Postal Service to a covered agency. Hence, the claim is denied. B-231061.3, August 28,199O Civilian Personnel Compensation W Compensation retention W W Eligibility A grade GS-12 employee of the Air Force stationed overseas was subject to a reduction in force, refused a grade GS-9 position, and chose to go on discontinued service retirement. Approximately 6 months later, he accepted a grade GS-9 position with the Department of the Army in the same area. Since the employee did not have a right to reemployment or restoration, we agree with an earlier Office of Personnel Management determination that the employee’s discontinued service retirement constituted a break in service and that he is not entitled to grade and pay retention. John T. Zeruos, B-231061, Jan. 26, 1989, reversed in part Civilian Personnel Relocation W Overseas personnel W W Quarters allowances W W W Amount determination W W W W Administrative discretion Employee was denied quarters allowance on the basis that he was a local hire. The issue is re- manded to the agency to make a factual determination in accordance with its regulations as to employee’s actual residence m order to determine if he was a local hire. Erroneous payments, if any, may be considered for waiver under 5 U.S.C. 59 5584, 5922tbJ. Page 7 Digests-August 1990 . B-237542, August 28, 1990 Civilian Personnel Relocation W Temporary quarters H n Actual subsistence expenses W W W Eligibility W W W n Extension This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. B-238093, August 28,199O Civilian Personnel Travel W Lodging W W Expenses W W W Noncommercial lodging Civilian employee of Department of Defense, on temporary duty, may be reimbursed cost of non- commercial lodging provided by a stranger in his home provided the employee shows that the costs were paid and the agency determines that such costs were reasonable under the circum- stances. The applicable regulation, C4552-2n, Joint Travel Regulations, Vol. 2, prohibiting reim- bursement of lodging expenses when an employee obtains lodging from friends or relatives is not applicable to this claim. B-238729, August 29, 1990 Civilian Per&me1 ’ Compensation H Severance pay H n Amount determination W W W Computation Plain meaning of the wording of 5 C.F.R. 0 550.704(bX2) (1990) is that in computing severance pay the agency shall credit the employee with each full year of creditable civilian service and with 25 percent of a year for each 3 months of creditable civilian service that exceeds 1 or more full years. Claimant contends that this regulation entitles him to a quarter-of-a-year credit for each of his 20 years of service. Claimant’s interpretation is clearly mistaken, and his claim for additional sever- ance pay is denied. B-235887, August 30.1990 Civilian Personnel ’ Compensation H Retroactive compensation n W Statutes of limitation A federal employee who retired in 1987, seeks reimbursement for annual leave not credited him in 1968 when he transferred from the Panama Canal Company to the Atomic Energy Commission. A claim for undercredit of annual leave is a continuing claim and, if not credited during the employ- ee’s period of service, eventually merges into a claim for payment of its lump-sum value upon sep aration from federal service. The employee was separated by reduction in force on September 28, 1981, and received a lump-sum payment for annual leave. Thus, any claim he had for a prior un- dercredit of annual leave merged into a claim for a lump-sum payment that accrued on that date. Page 8 Digests-August 1990 . Since the claim was not received here until June 16, 1989, more than 6 years after it accrued, the claim is barred from consideration under 31 USC. 3 3702(b) (19881 and may not be paid. B-240281, August 31,199O Civilian Personnel Travel n Advances n n Overpayments n n n Debt collection q n w n Waiver Our Claims Group granted waiver to an Army employee for the amount erroneously advanced to him for per diem. He requests waiver of the expenses he incurred that exceeds the amount ad- vanced and for which there is no statutory entitlement. Since there is no debt owed to the United States as a result of his out-of-pocket expenses, waiver cannot be used as authority to reimburse him for the amount spent in excess of the erroneous travel advance. Page 9 Digests-August 1990 . Military Personnel B-238589, August 13,199O Military Personnel Travel W Commercial carriers H H Travel expenses H H W Reimbursement Service member properly used commercial air carrier to fly from West Germany to the U.S. where the military plane on which he departed had to return because of mechanical difficulties and the member did not have adequate opportunity to make alternate arrangements on another military flight. The member also is entitled to reimbursement at the commercial carrier’s coach rate for his flight 3 days later back to West Germany if he had no adequate opportunity to arrange for military transportation, or if no such flights were available Military Personnel Travel W Commercial carriers n W Travel expenses n W n Reimbursement Service member who properly traveled by commercial carrier because military flight was not available, but flew in business class, is entitled to reimbursement only at the coach rate where coach seats were available on the same flight. B-240221, August 14, 1990 Military Personnel Pay W Death gratuities n 4 Eligibility This summary letter decision addresses well established rules which have been discussed in previ- ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry. B-231799, August 21, 1990 Military Personnel Pay n Retirement pay n W Distribution n n n Personnel death Sister-in-law of deceased member claims unpaid retired pay of member as “sole survivor” of the deceased. Since payment of such pay upon the death of a member is limited to those listed in the applicable statute and the sister-in-law does not qualify under that statute, the claim may not be paid. Page 10 Digests-August 1990 B-i36018, August 22, 1990 Military Personnel n Basic quarters allowances H m Rates n l n Determination n n n H Dependents Under the provisions of the Department of Defense Military Pay and Allowances Entitlements Manual (DODPM), para. 30221, a divorced service member who pays child support for his daughter is not entitled to Basic Allowance for Quarters while he lives in quarters which exceed the mini- mum standard for his rank unless the only quarters available exceed the minimum standard and unless they are made available for joint occupancy. B-238540, August 30,199O Military Personnel Pay H Survivor benefits n n Annuities n l n Eligibility n n H n Former spouses A member who elected Survivor Benefit Program (SBP) coverage for his wife and child upon his retirement from the Air Force in 1977, who was divorced in 1985 with a property settlement agree- ment awarding the spouse 40 percent of his retirement income cannot be “deemed” to have elect- ed coverage for the former spouse since he had not executed a voluntary written agreement to provide such coverage. Further, a Nunc Pro Tune order Issued by a state court in 1988 after the member’s death purporting to amend the prior 1985 divorce decree to award an annuity to the former spouse is without effect since at that time no authority existed for a court to order SBP coverage incident to a divorce proceeding. B-240337, August 30, 1990 Military Personnel Pay n Overpayments W n Error detection n n n Debt collection n n n n Waiver Navy member requested waiver of his debt to the United States which arose when an extra pay- check was issued upon his separation from active duty. Since the member accepted the payment without questioning it even though he should have recogmzed that he was being overpaid, waiver is denied. Page 11 Digests-August 1990 B-232527, August 31,199O Militarv Personnel Travel q Temporary duty W W Return travel n n W Reimbursement n W W W Eligibility A service member who for personal reasons returned to his permanent duty station and was in- formed that he would be reimbursed under Volume 1 of the Joint Federal Travel Regulations, paragraph LJ4135 (now U4130), is entitled to reimbursement notwithstanding the fact that he re- ported for duty at his permanent station and the fact that instruction indicating he could be reim- bursed was rescinded later. B-233663, August 31, 1990 Militarv Personnel Pay n Survivor benefits W H Annuities n W n Eligibility n n n n Former spouses A retired service member entered into a stipulation to provide Survivor Benefit Plan tSBP) annu- ity for his ex-wife pursuant to their divorce. Although he did not sign the transcript of the stipula- tion, it constitutes a voluntary written agreement. Therefore, his ex-wife is entitled to a deemed SBP election under 10 U.S.C. 9 1450(f)(3)(A~ Page 12 Digests-August 1990 . Miscellaneous Topics B-234347, Auaust 6. 1990 Miscellaneous Topics Environment/Energy/Natural Resources n Watershed projects q II Alternatives n q n Statutory compliance n n n n Authorizing legislation The Water Supply Act of 1958, 43 USC. 3 39Ob, authorizes municipal and Industrial cm&i) water storage to be included in any reservoir project of the Bureau of Reclamation or the Army Corps of Engineers The act’s purpose is to add additional reservoir capacity either prior to additional res- ervoir capacity either prior to original reservorr constructron or by addrtional construction It does not authorize the reallocation of water from an authorized project purpose to m&i water supply. Accordingly, the contracts reviewed are not authorized by the Water Supply Act Miscellaneous Tot&s Environment/Energy/Natural Resources n Watershed projects q n Alternatives n q n Statutory compliance H n q n Authorizing legislation Miscellaneous To&s Environment/Energy/Natural Resources II Watershed projects n n Surplus water q mmuse Section 6 of the Flood Control Act of 1944, 33 U.S.C. 0 708, authorizes the Secretary of the Army to supply surplus reservoir water for municipal and industrial uses. This authority applies only to water that is excess to the needs of authorized project purposes. It cannot be determined from the facts made available whether the water subject to the contract reviewed qualifies as surplus. Page 13 Digests-August 1990 , Procurement B-239056, August 1,199O 90-2 CPD 88 Procurement Competitive Negotiation n Offers W W Evaluation errors n n W Non-prejudicial allegation Procurement Socio-Economic Policies W Preferred products/services n n Domestic sources n n W Foreign products W W H n Price differentials Although the protester argues that an evaluation differential under the Buy American Act should not have been applied to its low-priced offer for South African chamois, the protest is denied since the Trade Agreements Act of 1979 (TAA) properly applied to the procurement in lieu of the Buy American Act and the TAA bars the agency from accepting South African products; therefore, the protester was not prejudiced by the award to a higher priced domestic competitor. B-239189, August 1,199O 90-2 CPD 89 Procurement Bid Protests n GAO procedures n W Protest timeliness n W W lo-day rule Protest is untimely where filed more than 10 working days after the basis of protest, an alleged improper demonstration of another offeror’s product, is known. B-240043, August 1,199O 90-2 CPD 90 Procurement Bid Protests W GAO procedures H n Protest timeliness W n n Significant issue exemptions W H n W Applicability Significant issue exception to the General Accounting Office’s timeliness requirements will be in- voked only where the protest involves a matter which has not been considered on the merits in previous decisions and which is of wide-spread interest to the procurement community. Page 14 Digests-August 1990 Prowrement Bid Protests n GAO procedures n W Protest timeliness n n W lo-day rule Protest is untimely when filed more than 10 working days following pubhcation of agency’s inten- tion to open the procurement from which protester was disqualified to all 8(a) companies under the 8(a) competitive procedures, and more than 10 working days following direct notification to the protester by the agency of its intentions. B-240193, August 1,199O 90-2 CPD 91 Procurement Bid Protests W GAO procedures H n Protest timeliness n W W Apparent solicitation improprieties A protester is presumed to be aware that an agency decision to request revised proposals may work to its competitive disadvantage, and thus may not delay filing its protest against such a re- quest until the release of prices after award, but must protest the decision no later than the clos- ing date for receipt of revised proposals. B-238857, B-238857.2, August 2, 1990 90-2 CPD 93 Procurement Competitive Negotiation n Offers H W Cost realism W n W GAO review Agency cost realism analysis had a reasonable basis where the agency reviewed the awardee’s pro- posed costs in light of (1) its prior performance costs as the incumbent; (2) a comparison between the awardee’s costs and those of the protester; and (31 the Department of Labor certificate of ex- emption from the Service Contract Act for handicapped organizations Procurement Contract Management W Contract administration n W GAO review Protest challenging awardee’s ability and intention to comply with the requirement that 75 per- cent of the work be performed by handicapped individuals is dismissed as it challenges issues of responsibility and contract administration, respectively, which we do not generally review. Procurement Socio-Economic Policies H Small business set-asides H n Contract awards n n H Propriety Protest challenging the award under a small business set-aside on the ground that the awardee is a nonprofit organization is denied where the awardee qualifies as an organization for the handi- capped and the regulations provide that such organizations may compete in acquisitions set aside for small business concerns. Page 15 Digests-August 1990 Procurement Socio-Economic Policies W Small business set-asides n n Non-prejudicial allegation Protest that agency’s failure to conduct an impact study on small disadvantaged firms before awarding contract to a nonprofit organization is improper is denied where there is no such re- quirement. B-239034, August 2,1990*** 90-2 CPD 94 Procurement Bid Protests n GAO authority The Federal Reserve Board is a federal agency whose procurements are subject to the General Accounting Office’s bid protest jurisdiction. Procurement Contractor Qualification n Licenses W n Determination time periods Where the solicitation requires the acquisition of necessary licenses prior to award, this is ordinar- ily a performance requirement encompassed in a contracting officer’s subjective affirmative re- sponsibility determination, which is not subject to review by the General Accounting Office. except in limited circumstances Procurement Contractor Qualification H Responsibility 4 n Contracting officer findings H n H Affirmative determination n n n n GAO review Where a requirement that subcontractors be listed is to determine the offerors’ affirmative respon- sibility rather than for the purposes of evaluation, the General Accounting Office will not review that determination except in limited circumstances. B-239119, August 2, 1990 90-2 CPD 95 Procurement Competitive Negotiation H Offers W W Competitive ranges E H W Exclusion W W W n Administrative discretion Exclusion of proposal from competitive range after two rounds of discussions was unobjectionable where agency reasonably relied on body of data presented in proposal and determined that propos- al was technically unacceptable because it evidenced offeror’s failure to satisfy a mandatory, mate- rial performance requirement. Page 16 Digests-August 1990 Pro‘curement Competitive Negotiation n Offers W n Evaluation n W W Information submission n WE W Contractor duties Where revised proposal did not indicate that model test data values were being presented as sub- stitute for values used in calculations in original proposal and did not include new calculations based on the model test values, agency reasonably concluded that the new data was being fur- nished to validate original calculations. B-239120, B-239120.2, August 2,199O 90-2 CPD 96 Procurement Bid Protests n GAO procedures W n Interested parties W n H Direct interest standards Protester is not an interested party for purpose of objecting to award to another offeror where the protester, whose proposal was excluded from the competitive range, would not be eligible for award even if its protest were to be sustained. Procurement Competitive Negotiation H Offers n W Competitive ranges H H W Exclusion n n n n Administrative discretion Proposal properly was excluded from the competitive range for failure to provide required commit- ment of key individual to be technical director for contract for “design and prototyping” of compo- nent of microwave aircraft landing system. B-239172, August 2,199O 90-2 CPD 97 Procurement Competitive Negotiation H Contract awards n W Propriety Protest that awardee failed to comply with the 50 percent subcontracting limitation in the solicita- tion as issued is denied where the requirement was deleted by an amendment changng the pro- curement from a small business set-aside to an unrestricted procurement. Page 17 Digests-August 1990 Procurement Contract Management n Contract performance n n GAO review Procurement Sealed Bidding n Bids W n Responsiveness n W W Determination criteria Bid which takes no exception to solicitation requirement for repair or maintenance by manufac- turer authorized service representatives obligates bidder to provide authorized service representa- tives and therefore is responsive; requirement is merely part of the general specifications concern- ing how and by whom work is to be accomplished and does not establish a definitive responsibility criterion or precondition to award. B-240533. AuPust 2. 1990 Procurement Sealed Bidding W Bids H H Responsiveness n n W Determination time periods Procuring agency’s rejection of protester’s bid as nonresponsive is upheld where bid was accompa- nied by a quotation from which stated that “freight and applicable taxes not included” when the solicitation required that taxes be included in the bid price. B-237676.2, August 3,199O 90-2 CPD 98 Procurement Bid Protests n GAO procedures n n GAO decisions n n H Reconsideration Request for reconsideration is denied where protester restates arguments previously raised and considered and raises new arguments which do not warrant reversal or modification of that deci- sion. B-239219, August 3. 1990 90-2 CPD 99 Procurement Competitive Negotiation n Contract awards n n Initial-offer awards n n n Propriety Contracting agency improperly made award on the basis of initial proposals without discussions, where the record does not clearly show that the agency’s decisron to restrict the competitive range to one firm was reasonable, since offers rated “excellent” or “good” were lower priced and record shows discussions could have resolved weaknesses in proposal. Page 18 Digests-August 1990 B-240477, August 3, 1990 90-2 CPD 100 Procurement Bid Protests n Dismissal n n Definition Protest of agency’s refusal to extend date for receipt of proposals and of defective solicrtation is dismissed for failure to set forth a detailed statement of the legal and factual grounds of the pro test as required by General Accounting Office’s Bid Protest Regulatrons Procurement Bid Protests n GAO authority Protest of agency contracting practices in general is not wrthin the scope of the General Account- ing Office’s bid protest function B-236564.4, August 6, 1990 90-2 CPD 103 Procurement Bid Protests n GAO procedures n n GAO decisions n n n Reconsideration Request for reconsideration is denied where protester does not show that challenged decision is inconsistent with other decisions issued by General Accounting Office. B-238793.2, August 6, 1990 90-2 CPD 104 Procurement Bid Protests n GAO procedures n n GAO decisions n n n Reconsideration Request for reconsideration 1s dismrssed where issues raised have been decided on the merrts by a court of competent jurisdiction. B-239041.2, August 6,199O 90-2 CPD 105 Procurement Socio-Economic Policies n Small businesses n n Responsibility n n n Competency certification n n n n GAO review Where a small business concern protests a contracting officer’s nonresponsibility determination, and the Small Business Administration tSBAl has declined to issue a certificate of competency to the firm, the General Accounting Office ~111 not review the protest because the firm did not make a showing of either possible fraud or bad faith on the part of the SBA or that the SBA failed to consrder vital information bearing on the firm’s responsibility Page 19 Digests-August 1990 B-239104.2. August 6.1990 90-2 CPD 106 Procurement Bid Protests n GAO procedures n n Administrative reports n n n Comments timeliness Dismissal of protest due to protester’s failure to file timely comments on agency report is affirmed as protester’s 2-week absence from office and alleged unawareness of comment filing requirements does not excuse failure to comment. B-239113. B-239113.2. August 6.1990”“” 90-2 CPD 107 Procurement Bid Protests n GAO procedures n n Interested parties n n n Direct interest standards In a negotiated procurement in which award was made to the offer representing the best value to the government, a protester is an interested party under the General Accounting Office Bid Pro- test Regulations to protest the evaluation of proposals, even where the protester’s offer is second highest priced of live offers, since, if its protest were sustained, it could be in line for award. Procurement Competitive Negotiation n Contract awards n n Administrative discretion n n n Cost/technical tradeoffs n n n n Cost savings The source selection official could properly select for award the low priced, lower rated offeror in a negotiated procurement where the solicitation provided that, although cost was less important than technical evaluation factors, award would be on a best value basis to that offeror submitting an acceptable proposal with appropriate consideration given to cost and other factors. Procurement Competitive Negotiation n Contract awards n n Administrative discretion n n n Cost/technical tradeoffs n n n n Cost savings The source selection official reasonably determined, contrary to the recommendations of lower- level evaluators, that the technical advantages of the highest rated proposal did not reflect signifi- cant technical superiority out-weighing the awardee’s price advantage, given the awardee’s accept- able level of technical competence available at the lower cost. Page 20 Digests-August 1990 l . P rocurement Competitive Negotiation n O ffers n n Evaluation errors W q n Evaluation criteria W q n W Application A g e n c y did not waive specification requirements r e g a r d i n g seat adjustments in m a k i n g a n a w a r d for a centrifuge trainer. B - 2 3 9 1 7 8 ,A u g u s t 6 ,1 9 9 O 90-2 CPD 108 P rocurement Sealed Bidding n Contract a w a r d s n n Propriety W n H C o r p o r a t e entities H n n n Merger A g e n c y properly a w a r d e d contract to low bidder’s successor in interest, w h e r e the original bidder, a wholly o w n e d subsidiary of the parent-successor, m e r g e d with the parent c o m p a n y after bid opening. S i n c e the assets of the original bidder (apart from this low bid) which w e r e transferred in the m e r g e r w e r e not negligible, the m e r g e r did not constitute a sale of a bid. B - 2 3 9 1 9 0 ,A u g u s t 6 ,1 9 9 O 90-2 CPD 109 P rocurement Competitive Negotiation W O ffers n W Evaluation errors n W W Non-prejudicial allegation P rocurement Contractor Qualification W O r g a n i z a t i o n a l conflicts of interest W H Allegation substantiation W n H E v i d e n c e sufficiency Protest is d e n i e d w h e r e protester has, at best, established its technical d i s a g r e e m e n t with a g e n c y evaluators w h o c o n c l u d e d that a w a r d e e ’s score s h o u l d not b e d o w n g r a d e d as the result of alleged conflicts of interest arising out of the firm’s p e r f o r m a n c e o n other contracts. B - 2 3 9 2 0 9 ,A u g u s t 6 , 1 9 9 0 90-2 CPD 110 P rocurement Competitive Negotiation n O ffers n W Competitive r a n g e s H 1 n Exclusion H H W W Administrative discretion Protest challenging a g e n c y ’s evaluation of protester’s proposal as unacceptable a n d the exclusion of proposal from the competitive r a n g e is d e n i e d w h e r e review of a g e n c y ’s technical evaluation of proposal s h o w s it w a s evaluated in a c c o r d a n c e with solicitation’s evaluation criteria a n d that a g e n c y reasonably c o n c l u d e d that the proposal w o u l d require m a j o r revisions to b e c o m e accepta- ble. Page 21 Digests-August 1990 . B-239238. Awust 6.1990 90-2 CPD L1’1 Procurement Sealed Bidding W Bids W W Responsiveness W n W Samples Agency properly rejected low bid as nonresponsive where rejected bidder’s bid sample syringes failed to conform to characteristics listed in invitation for bids, which warned bidders that submis- sion of nonconforming bid samples with their bids would result in rejection. B-239270. August 6.1990 90-2 CPD 112 Procurement Socio-Economic Policies W Small businesses n H Competency certification W H H Bad faith W W H W Allegation substantiation Procurement Socio-Economic Policies n Small businesses W n Responsibility W W W Competency certification n n n q GAO review Where the record shows that the Small Business Administration (SBA) considered all information provided to it by the protester during the certificate of competency (COCI proceeding. and the record indicates that the protester is only in disagreement with the result that the SBA reached after considering the evidence, there is no evidence that the SBA acted in bad faith in declining to issue a COC. Procurement Socio-Economic Policies W Small businesses W n Responsibility n W 0 Negative determination n n n n GAO review Protest that contracting agency acted in bad faith in determining the small business protester nonresponsible is denied where there is no evidence that the agency’s actions resulted from bad faith or in the denial of the protester’s opportunity to seek a certificate of competency review at the Small Business Administration, the agency which has the statutory authority to conclusively determine an offeror’s responsibility. Page 22 Digests-August 1990 . . B-240121.2, August 6,199O Procurement Bid Protests q GAO procedures n n Protest timeliness n n n Apparent solicitation improprieties Protest that agency improperly used new plans and specifications in reprocurement to complete work under a defaulted contract is untimely because it was tiled 2 months after the closing date for proposals. Procurement Contract Management n Contract administration q n GAO review Defaulted contractor’s protest that contracting agency’s use of new plans and specifications under reprocurement will increase backcharges that contracting agency will charge protester and its bonding company is a matter of contract administration and is not for consideration by the Gener- al Accounting Office under its bid protest function. B-240382.2, August 6, 1990 90-2 CPD 113 Procurement Bid Protests q GAO procedures n n GAO decisions n n n Reconsideration Dismissal of protest for failure to state a basis of protest is affirmed; the agency’s failure to select protester for award, together with the fact that the protester purportedly developed the specifica- tions, does not by itself indicate that, as alleged, offerors were not competing on equal basis. B-239123, August 7,199o 90-2 CPD 114 Procurement Competitive Negotiation n Alternate offers n n Rejection n n n Propriety Although protester argues that contracting officials did not consider its alternative proposal of a unibody construction for night vision devices because it is not mentioned in evaluation documents, since the alternative was mentioned in a discussion question, the record indicates that the agency considered it but concluded that it was merely an alternative design that offered no advantage. Procurement Competitive Negotiation n Contract awards n n Administrative discretion n n n Cost/technical tradeoffs n n n B Technical superiority Award to higher priced offeror which had higher rated proposal under nonprice factors is proper where contracting agency’s selection decision is reasonable since selection officials have broad dis- Page 23 Digests-August 1990 . cretion in making price/technical tradeoff, so long as it is consistent with solicitation’s evaluation scheme. Procurement Competitive Negotiation n Offers n n Evaluation n n n Administrative discretion The evaluation of technical proposals is primarily the responsibility of the contracting agency which is responsible for defining its needs and the best method of accommodating them and must bear the burden of any difficulties resulting from a defective evaluation. Procurement Competitive Negotiation n Offers n n Evaluation n n n Administrative discretion Under a solicitation that calls for award to offeror submitting best overall proposal, with consider- ation given to price and nonprice factors, and which states that proposals are to meet or exceed the solicitation requirements. the selection official in making a selection decision may properly take into account specific, albeit not expressly identified, matters that are logically encompassed by or related to stated evaluation criteria. B-237596.3, August 8, 1990 90-2 CPD 115 Procurement Competitive Negotiation n Contract awards n n Administrative discretion n n n Cost/technical tradeoffs n n n n Technical superiority Award to higher priced offeror which had higher rated proposal under nonprice factors is proper where contracting agency’s selection decision is reasonable since selection officials have broad dis- cretion in making price/technical tradeoff, so long as it is consistent with solicitation’s evaluation scheme. Procurement Competitive Negotiation n Offers n n Evaluation n n n Administrative discretion Under a solicitation which calls for award to the offeror submitting the best overall proposal, with consideration given to price and nonprice factors, and which states that proposals should meet or exceed the solicitation requirements, the agency in making a selection decision may properly take into account specific, albeit not expressly identified, matters that are logically encompassed by or related to stated evaluation criteria Page 24 Digests-August 1990 Procurement Competitive Negotiation q Offers n n Evaluation q n n Administrative discretion The evaluation of technical proposals is primarily the responsibility of the contracting agency which is responsible for defining its needs and the best method of accommodatrng them and must bear the burden of any difficulties resulting from a defective evaluation B-240450. August 8. 1990*** 90-2 CPD 116 Procurement Bid Protests n GAO procedures n n Interested parties n n n Direct interest standards A company is not an interested party to protest its alleged improper exclusion from the competi- tive range and to pursue claim for proposal and protest costs when (1 I prior to filing its protest the firm voluntarily releases its proposed team members from therr commitments to work for the firm should It receive the award, and 12, expressly rejects reinstatement in the competition and award of a contract as a remedy in the event its protest is sustained. B-238654.2, August 9. 1990 90-2 CPD 117 Procurement Competitive Negotiation n Fixed-price contracts n n Offers n n n Acceptance criteria Where request for proposals requires offerors to propose on a firm-fixed-price basis, protester’s pro- posal, which did not contain an unequivocal offer to perform contract at firm-fixed-prme could not properly be accepted for award. B-239182. August 10.1990 90-2 CPD 118 Procurement Bid Protests n GAO procedures n n Protest timeliness n n n Apparent solicitation improprieties Protest that solicitation for indefinite quantity contract should have provided more information on the quantities of items the agency could reasonably expect to order under the contract is dismissed as untimely where filed after award since the allegation concerns alleged apparent solicrtation im- propriety which must be filed prior to the closing date for receipt of initial proposals Page 25 Digests-August 1990 Procurement Competitive Negotiation n Offers n n Evaluation n n n Technical acceptability Allegation that awardee’s valve did not meet solicitation specifications based on protester’s incor- rect assumption regarding which valve model was offered is denied where record establishes that agency reasonably determined that the valve model which was actually offered satisfied all specifi- cations. B-239223. August 10.1990 90-2 CPD 129 Procurement Competitive Negotiation n Contract awards n n Administrative discretion n n n Cost/technical tradeoffs n n n n Cost savings Although solicitation provided that technical and management factors were more important than cost, agency may award to technically lower rated, lower cost offeror instead of higher cost, higher technically rated offeror, where the contracting officer reasonably determines that there is no sig- nificant technical difference between proposals and that award to lower cost offeror is most advan- tageous to the government. Procurement Competitive Negotiation n Offers n n Evaluation q n n Administrative discretion General Accounting Office will not object to evaluation of technical and cost proposals where review of source selection documents shows that the evaluation was fair and reasonable and con- sistent with the evaluation criteria in the solicitation. B-240545, August lo,1990 90-2 CPD 119 Procurement Bid Protests n Forum election n n Finalitv Procurement Bid Protests n GAO procedures n n Protest timeliness n n n IO-day rule Timely filing of bid protest with General Services Administration Board of Contract Appeals (GSBCA), which protest was subsequently dismissed by the GSBCA, does not toll the requirement that a bid protest be timely filed with the General Accounting Office. Protest filed more than 10 days after basis of protest was known is untimely. Page 26 Digests-August 1990 Ei-237868.2, August 13,199O 90-2 CPD 120 Procurement Bid Protests q GAO procedures n E GAO decisions n n n Reconsideration Prior decision is affirmed where party requesting reconsideration fails to show any error of fact or law or new information which would warrant reversal or modification of prior decision. B-239192, August 13,1990*** 90-2 CPD 121 Procurement Competitive Negotiation n Offers n n Evaluation n n W Technical acceptability Contracting agency reasonably rejected proposal as technically unacceptable without discussions where the proposal contained several deficiencies and weaknesses which would have required major revisions to the proposal. Procurement Socio-Economic Policies H Small business set-asides n n Withdrawal H H n Propriety Contracting agency may reasonably withdraw a small business set-aside, and resolicit the require- ment on an unrestricted basis, where the only proposal received was properly determined to be technically unacceptable. B-239200, August 13,1990*** 90-2 CPD 122 Procurement Competitive Negotiation n Offers E n Evaluation errors n n q Prices Agency’s three requests for price verification of low offer, after submission of initial offers and before submission of best and final offers, were not improper, coercive, or misleading when circum- stances reasonably lead the agency to question whether the offeror may have made a mistake in its offer in view of the previous prices paid for the item and the low offeror’s inexperience in pro- ducing the item. Page 27 Digests-August 1990 . Procurement Competitive Negotiation n Offers n n Price disclosure n n n Allegation substantiation n n n n Evidence sufficiency Protest that prices may have been disclosed to the protester’s competition is denied where the alle- gation is primarily based on the awardee’s reduction of the prices in its best and final offer to levels slightly below protester’s initial prices. B-239216, August 13, 1990 90-2 CPD 123 Procurement Competitive Negotiation n Offers n n Technical acceptability n n n Deficiency n n n n Blanket offers of compliance Proposal was properly found technically unacceptable where proposal did not affirmatively demon- strate that offered ultrasonic inspection system was completely compatible with the Navy’s exist- ing equipment as required by the specifications. Blanket statement of compliance does not over- ride offeror’s failure to furnish sufficient information in its proposal to enable the agency to deter- mine its technical acceptability B-239313, August 14,199O 90-2 CPD 124 Procurement Bid Protests n GAO procedures n n Interested parties n n n Direct interest standards Protester is not an interested party under Bid Protest Regulations to protest conversion of invita- tion for bids (IFB) to negotiated procurement because it would not be in line for contract award under its theory of how bids should be evaluated and award made under the IFB. B-236961.6, August 15,199O 90-2 CPD 125 Procurement Bid Protests n GAO procedures n n GAO decisions n n n Reconsideration Procurement Competitive Negotiation n Offers n n Evaluation n n n Administrative discretion Pass/Fail sample problem on a negotiated procurement, which provided technical evaluators with a measure of the offeror’s ability to independently size up a problem and propose a viable, efficient solution, is not rendered an invalid evaluation tool by the fact that the incumbent contractors did not receive the highest scores on the problem Page 28 Digests-August 1990 B-239252, August 15,199O 90-2 CPD 126 Procurement Competitive Negotiation n Competitive advantage n n Corrective actions n n n Contractors n n n n Disqualification A contracting officer may properly protect the integrity of the procurement system by disqualify- ing from the competition a firm which engaged in improper business conduct which may have afforded the firm an unfair competitive advantage. Procurement Contractor Qualification n Responsibility n n Administrative proceedings q n n Criteria Because maintaining the integrity of the competitive process was the basis for the contracting offi- cer’s decision to disqualify a firm from the competition, and not the firm’s integrity to perform if awarded the contract. a traditional element of responsibility, the contracting officer was not re- quired to make a finding that the tirm was nonresponsible. B-239303, August 15,199O 90-2 CPD 127 Procurement Bid Protests n GAO procedures n n Protest timeliness n n n Apparent solicitation improprieties Argument that a matter raised during discussions is inconsistent with solicitation’s evaluation cri- teria is untimely when not tiled until after award. Procurement Competitive Negotiation l Offers n n Evaluation errors n n q Allegation substantiation Protest that agency failed to account for alleged financial instability of subcontractor in evaluat- ing awardee’s proposal is denied where the solicitation does not contain any evaluation criteria relating to the financial condition of an offeror or its subcontractors. Procurement Contractor Qualification l Responsibility n n Contracting officer findings n n n Affirmative determination n n n n GAO review Protest challenging agency’s affirmative determination of responsibility is dismissed where the protester does not allege nor is there any evidence in the record of fraud or bad faith on the part of procurement officials. Page 29 Digests-August 1990 B-239912.2, August 15,199O 90-2 CPD 128 Procurement Bid Protests n GAO procedures n n Protest timeliness n n n Apparent solicitation improprieties Protest against a geographic restriction is untimely filed after bid opening, where that restriction is apparent from the face of the solicitation. B-238706.3, August 16,199O 90-2 CPD 130 Procurement Bid Protests n Non-prejudicial allegation n n GAO review Procurement Competitive Negotiation n Contract awards n n Propriety n n n Offers n n n n Minor deviations Protest that contract improperly was awarded on the basis of a proposal that took exception to material terms of request for proposals issued by government prime contractor is denied where, even if some technical deficiency in the award process occurred, the protester was not prejudiced by the deficiency. B-239287, August 16, 1990 90-2 CPD 131 Procurement Competitive Negotiation n Contract awards n n Initial-offer awards n n n Propriety n n n n Price reasonableness Contracting agency may not award a contract on the basis of initial proposals where prices re- ceived reasonably indicate that the government could obtain savings by conducting discussions. Page 30 Digests-August 1990 7 Br239389, August 16, 1990 90-2 CPD 132 Procurement Competitive Negotiation n Offers n n Evaluation n n n Technical acceptability n BBBTests Procurement Specifications n Minimum needs standards n n Determination n n n Administrative discretion A contracting agency’s determination as to the type of testing necessary to measure tensile strength of couplers is unobjectionable where It 1s reasonable, the fact that the protester believes a better test is available does not render the determination unreasonable Procurement Competitive Negotiation n Requests for proposals n n Terms n n n Ambiguity allegation n n n n Interpretation Allegation that requirement that scaffolding system components be compatrble with two manufac- turers’ components rather than with only one firm’s components ~111 confuse potentral offerors and discourage them from competing is without merrt where the reqmrement reflects the fact that the agency’s current stock consists of components from the two manufacturers, so that compatibil- ity with either is acceptable. B-239404, August 16, 1990 90-2 CPD 133 Procurement Sealed Bidding n Contract awards n n Propriety Procurement Socio-Economic Policies n Small business set-asides BBUse n n n Administrative discretion Contractmg agency’s inadvertent inclusion of statement on solicitation’s cover page that project is set aside for small businesses does not prohibit award to low, large business bidder where solicita- tion reasonably shows that the procurement was not intended to be set asrde, and no budder was prejudiced by erroneous statement. Page 31 Digests-August 1990 Procurement Socio-Economic Policies n Preferred products/services n n American Indians Determination of Bureau of Indian Affairs that a firm meets eligibility criteria for responding to Buy Indian Act procurement will not be disturbed by the General Accounting Office where not shown to be unreasonable. B-239467, August 16,199O 90-2 CPD 134 Procurement Competitive Negotiation n Offers n n Submission time periods n n n Adequacy Full and open competition was not precluded by requirement that transport aircraft be pressur- ized-the need for which the protester does not dispute but with which it cannot comply in the time available for submission of proposals-where: agency advised potential offerors of the re- quirement for pressurization with reasonable promptness once the need became apparent; oper- ational concerns did not permit any delay in the procurement; it appears responsible sources capa- ble of meeting the government’s delivery schedule were able to compete; and protester’s difficulty in meeting the pressurization requirement without substantial additional time stems largely from the fact that it has a developmental aircraft and not an existing, operational one. Procurement Socio-Economic Policies n Preferred products/services n n Foreign businesses n n n Contract awards n n n n Propriety Procurement Specifications n Minimum needs standards n n Competitive restrictions n n n Allegation substantiation n n n n Evidence sufficiency Contention that agency will violate Buy American Act because its specifications effectively limit competition to two foreign firms, one of which has sold aircraft to Libya and the other of which is allegedly owned or subsidized by governments which either have committed human rights viola- tions or have entered into a joint venture with the Soviet Union, is denied because the Buy Ameri- can Act does not prohibit awards to foreign firms, but merely establishes a preferential evaluation system favoring domestic products, and there are no prohibitions against contracting with foreign firms under the circumstances the protester has identified. Procurement Socio-Economic Policies n Small business set-asides BBUse n n n Administrative discretion Contracting agency’s refusal to set aside a procurement of transport aircraft for small business concerns or small disadvantaged business concerns was proper where agency’s action is supported Page 32 Digests-August 1990 5y Its evaluation of the marketplace, Small Business Administration concurred with the decision, and protester admits that there is no reasonable expectation of receiving offers from at least two responsible such concerns. B-239673, B-239844, Aumst 1691990 90-2 CPD 135 Procurement Socio-Economic Policies n Small businesses n n Disadvantaged business set-asides n n n Eligibility n q n n Determination Solicitations for the delivery, but not installation, of air-cooling chiller systems will result in supply contracts, so that under applicable regulations a small disadvantaged business (SDB) must furnish a product manufactured by a SDB or, if there is no SDB manufacturer, the product of a small business in order to be eligible for an SDB evaluation preference. B-239858.2. August 16.1990 90-2 CPD 136 Procurement Bid Protests n GAO procedures n q GAO decisions n n n Reconsideration Prior decision is affirmed where protester does not show that initial decision dismissing protest as untimely was in error. B-240381, August 16,199O 90-2 CPD 137 Procurement Bid Protests n GAO procedures n n Interested parties n q n Direct interest standards Procurement Bid Protests n GAO procedures q n Purposes q n n Competition enhancement Protest against competitive, l-year interim contract for telephone switchboard services is dis- missed. Net effect of protest would necessarily lead to restriction of competition for services since the protester, the incumbent contractor, insists that the only appropriate alternative is to contin- ue to award it monthly purchase orders until a new solicitation is issued. Alternatively, if the pro- tester is asserting the interests of other potential quoters, this ground of protest is for other poten- tial quoters to raise, not the protester, who participated in the procurement.. Page 33 Digests-August 1990 Procurement Bid Protests n GAO procedures n n Protest timeliness n n n IO-day rule Protest that agency did not possess adequate information for soliciting quotations is dismrssed as untimely where first rarsed in protester’s comments on agency’s request for dismissal, well after when quotations were due. B-237531.3, August 17, 1990 90-2 CPD 138 Procurement Competitive Negotiation n Requests for proposals n n Cancellation n n n Justification n n n n Comnetition enhancement Procurement Competitive Negotiation n Requests for proposals n n Cancellation n n n Justification n n n n Cost savings Agency may cancel a negotiated procurement based on the potential for increased competition or cost savings. B-238117.2, August 17, 1990 90-2 CPD 139 Procurement Bid Protests n GAO procedures n n GAO decisions n n n Reconsideration Request for reconsideration which essentially restates arguments previously considered, and does not establish any error of law or provide information not previously considered is denied B-239142.2, et al., August 17, 1990 90-2 CPD 140 Procurement Competitive Negotiation n Defaulted contractors n n Competition rights Defaulted contractor reasonably was not solicited on reprocurement of remaining quantities of de- faulted contracts, where it expressly declined to perform defaulted contracts under existing condi- tions. Page 34 Digests-August 1990 B-239334, B-239764, August 17,1990*** 90-2 CPD 141 Procurement Socio-Economic Policies n Small businesses H H Disadvantaged business set-asides n E n Preferences I W n n Eligibility Where agency issues proposed regulation which establishes eligibility of small disadvantaged busi- ness (SDB) dealers for obtaining SDB evaluation preference, issuance of final rule, based on com- ments received, which further restricts eligibility requirements. without request for further public comment, is not improper. B-239906, August 17, 1990 90-2 CPD 142 Procurement Competitive Negotiation W Discussion H n Determination criteria Agency is not required to conduct discussions with offeror whose proposal properly was deter- mined to be outside the competitive range. Procurement Competitive Negotiation H Offers H n Competitive ranges n n n Exclusion W W n H Administrative discretion Procurement Competitive Negotiation W Offers n n Evaluation n n W Technical acceptability Agency’s determination that protester’s proposal was technically unacceptable and therefore out- side the competitive range was reasonable where proposal contained significant informational deti- ciencies and represented a high degree of risk. B-240549. Aueust 17.1990 90-2 CPD 143 Procurement Contractor Qualification n Responsibility W n Information n n W Submission time periods Bidder’s failure to complete Clean Air and Water Certification in its bid is a matter of responsibil- ity and may be furnished any time prior to award. Page 35 Digests-August 1990 B-234047.4, August 20, 1990 90-2 CPD 1-44 Procurement Bid Protests n Court decisions n H Merits adjudication W W n GAO review Procurement Bid Protests W Forum election W H Finality Procurement Bid Protests W GAO procedures n W GAO decisions n n n Reconsideration General Accounting Office will not consider protest questioning the proper scope of a contract under negotiation where the protest is a collateral attack on the orders of the Claims Court and appeals pending before the Court of Appeals for the Federal Circuit could decide the propriety of the award. B-239301, August 20,199O 90-2 CPD 145 Procurement Competitive Negotiation H Contract awards W n Administrative discretion n n n Cost/technical tradeoffs W n n n Cost savings Source selection official had reasonable basis to select a lower priced, lower technically-scored of- feror where after having been fully briefed on the relative advantages of the offerors, he deter- mined that the cost premium involved in awarding to a higher rated, higher priced offeror was not justified given the acceptable level of competence at the lower cost. Procurement Competitive Negotiation W Contract awards H H Propriety Procurement Competitive Negotiation n Offers W n Evaluation n H n Technical acceptability n W n n Adjectival ratings Award to offeror who received adjectival rating of marginally acceptable did not violate award criteria that required offerors to receive a rating of acceptable, where source selection plan provid- ed that proposal had to meet all requirements to receive rating of marginal, and record shows that offeror did not receive unacceptable rating. Page 36 Digests-August 1990 B-640443.2, August 20,lWO 90-2 CPD 146 Procurement Bid Protests n GAO procedures H n GAO decisions n n n Reconsideration Procurement Bid Protests n GAO procedures n n Protests timeliness W W W IO-day rule Protest against alleged procurement improprieties leading to award of printmg contract was prop erly dismissed as untimely filed under Bid Protest Regulations because protest was tiled more than 10 working days after debriefing. 4 C F.R $21.2(a)(2) (1990) Although the agency provided additional information to protester after debriefing pursuant to Freedom of Information Act re- quest, that did not toil the filing deadline since that Information did not relate to original bases of protest, and protester has not raised any new bases of protest B-239565, B-239566, August 21.1990 90-2 CPD 147 Procurement Small Purchase Method n Quotations W H Government mishandling Protests challenging issuance of purchase orders to firms other than protester are denied where record supports protester’s contention that it transmitted quotations to the contracting activity prior to the closing dates for receipt of quotations, but does not establish the prices that the pro- tester quoted. B-240776, August 21, 1990 90-2 CPD 148 Procurement Sealed Bidding n Bids n n Responsiveness n n H Price data H W n W Information sufficiency Bid which contains “n/c” (no charge) instead of dollar price for line item is responsive, as notation indicates bidder’s affirmative intent to provide the requirement covered by the line item at no charge to the government. Procurement Sealed Bidding n Unbalanced bids W n Allegation substantiation I H n Evidence sufficiency Protest that bid is unbalanced because it offers to provide certain requirements at no charge is dismissed where protester does not allege that bid also contained overstated charges Page 37 Digests-August 1990 . . B-239342. August 22.1990 90-2 CPD 149 Procurement Sealed Bidding W Bids n n Responsiveness n n n Determination criteria Protester’s bid for requirements contract which failed to offer at least the government’s estimated peak monthly requirements as required by the invitation for bids was nonresponsive and was properly rejected. B-239358, August 23,199O 90-2 CPD 150 Procurement Bid Protests n GAO procedures n n Protest timeliness n n n lo-day rule When a protester raises new grounds of protest in its comments on the agency’s report on the protest, the new contentions must independently satisfy the timeliness requirements in the Gener- al Accounting Office’s Bid Protest Regulations. Procurement Competitive Negotiation n Offers n n Evaluation n n n Technical acceptability Protest that awardee’s proposal was unacceptable and should have been rejected because it includ- ed as a proposed director of emergency care a physician that was unacceptable is denied because the record indicates that the physician, although he later was denied post-award credentialing under the contract, was considered acceptable under the technical evaluation when offered by the protester and by the awardee. B-239460. August 23.1990 90-2 CPD 151 Procurement Bid Protests n GAO procedures n n Interested parties n n n Direct interest standards Procurement Bid Protests n Moot allegation n n GAO review Allegation that specifications were defective and that insufficient time was permitted for the sub- mission of a quotation is dismissed as academic where the protester did not submit a quotation or a timely protest regarding its failure to receive the solicitation and the protester was not, there- fore, eligible to receive the award. Page 38 Digests-August 1990 . c Prbcurement Bid Protests n GAO procedures n n Protest timeliness n n n IO-day rule Protest that contracting agency improperly failed to provide the protester with an opportunity to compete for a procurement is dismissed as untimely since protest was not filed within 10 working days after the protester learned the basis for its protest. B-234434.2, August 24,1990*** 90-2 CPD 152 Procurement Bid Protests n GAO procedures n n Preparation costs Request by agency for dismissal of claim for costs of filing and pursuing a protest because claim- ant did not wait until agency ruled on amount of claim before filing at General Accounting Office is denied since information submitted is sufficient to determine whether claim is allowable and nothing would be accomplished by having the agency review the matter further since it is clear that the agency does not believe that the claim should be allowed. Procurement Bid Protests n GAO procedures n n Preparation costs n B n Amount determination Claimant is entitled to recover incurred company costs of filing and pursuing General Accounting Office protests, but not agency-level protest, where costs claimed are sufficiently documented. Procurement Bid Protests n GAO procedures n n Preparation costs n n n Amount determination Request for payment of costs associated with following-up agency actions pursuant to sustained decision and pursuing claim for recovery of costs of filing and pursuing protest are denied since such costs are not recoverable in the absence of express statutory or contractual authority. Procurement Bid Protests H GAO procedures n n Preparation costs n n n Attorney fees Attorneys’ fees claimed by prevailing protester are determined reasonable, and thus are allowable, where the hourly rates are within bounds of rates charged by similarly situated attorneys, and the hours claimed are properly documented and do not appear to be excessive. Page 39 Digests-August 1990 . . Procurement Bid Protests n GAO procedures n n Preparation costs n n n Interest Payment of interest on claim for reimbursement of costs of pursuing a sustained protest is not authorized. B-239457, August 24,199O 90-2 CPD 153 Procurement Sealed Bidding n Bid guarantees n n Responsiveness n n W Sureties n n n n Liability restrictions Protest that agency will improperly accept as responsive bid of firm whose bid bond was in an amount less than 20 percent of price bid for basrc and option periods is denied where penal sum of bid bond is greater than difference between the firm’s bid and next low bid for basic period. B-239503, B-239503.2, August 24, 1990*** 90-2 CPD 154 Procurement Contractor Qualification n Approved sources n n Qualification n n n Delays Protest that agency delay during its source approval process improperly precluded protester from competing is denied where, even if the protester had received source approval, it would not have been eligible for waiver of first article testing; smce the agency’s urgent need for the contract item, a flight-critical part. could only be met by an approved source that was not subject to the delays involved in first article testing, the protester would not have been eligible for award of a contract to meet the agency’s urgent requirement in any event Procurement Contractor Qualification n Approved sources W n Qualification n n n Standards Allegation that agency’s urgent requirement for a flight-critical part was brought about by lack of acquisition planning by the agency is rejected, where the record shows that the agency was aware of and had taken measures to meet shortages of the item, but deferred actual procurement of the item primarily in order to qualify additional sources Page 40 Digests-August 1990 l . B-i40680, August 24, 1990 90-2 CPD 155 Procurement Bid Protests n Price contractors n n Contract awards H n n Subcontracts W W n H GAO review Protest challenging subcontract solicitation terms is dismissed because the solicitation for subcon- tractor services was issued by a government prime contractor which is not acting as the govern- ment’s agent and the award will not be made “by or for the government ” B-240807, August 24, 1990 90-2 CPD 156 Procurement Socio-Economic Policies n Small businesses n n Disadvantaged business set-asides n W n Eligibility n W n W Determination Department of Defense regulation requiring that small disadvantaged business (SDB) regular deal- ers provide a product manufactured by a small business concern in order to be eligible for an SDB evaluation preference is a reasonable implementation of its broad statutory mandate to award 5 percent of the dollar value of its contracts to SDB concerns. B-240850, August 24,199O 90-2 CPD 157 Procurement Sealed Bidding H Unbalanced bids W W Allegation substantiation W H n Evidence sufficiency Protest alleging that bid is unbalanced is dismissed for failure to state a valid basis for protest where the protester fails to provide either allegations or evidence sufficient to establish the likeli- hood that bid in fact is mathematically and materially unbalanced. B-240906, B-240909, August 24,199O 90-2 CPD 158 Procurement Bid Protests n GAO procedures 4 n Protest timeliness n H n Apparent solicitation Evaluation of bids based on application of an evaluation preference not provided for by solicitation would be improper. Page 41 Digests-August 1990 c . Procurement Socio-Economic Policies n Small businesses W W Disadvantaged business set-asides n n n Preferences W n n n Eligibility Protest that solicitation should have included an evaluation preference for small disadvantaged business concerns is untimely since it alleges a solicitation impropriety apparent before bid open- ing but was not filed before that time. B-239433, August 27, 1990 90-2 CPD 159 Procurement Competitive Negotiation n Offers n n Evaluation errors n n n Evaluation criteria n n n n Application Protest is sustained where agency did not evaluate a feature-compatibility of card access system with systems at other locations-which the solicitation termed “desirable,” where protester rea- sonably interpreted the solicitation as providing for evaluation of feature and had submitted a more expensive proposal in an effort to gain evaluation credit for that feature. B-238235.3, August 28,199O 90-2 CPD 160 Procurement Bid Protests n GAO procedures n n Preparation costs There is no basis for the award of proposal preparation costs where protester filed an agency-level protest resulting in corrective action, but never filed a protest at the General Accounting Office (GAO), since a prerequisite to the award of costs is a decision by GAO on the merits of a protest. B-238625.3, August 28, 1990 90-2 CPD 161 Procurement Bid Protests n GAO procedures n n GAO decisions n n n Reconsideration Request for reconsideration of initial decision is denied where protester fails to specify any factual or legal basis warranting reversal or modification of initial decision. B-239386, August 28, 1990 90-2 CPD 162 Procurement Government Property Sales n Timber sales Protest that second-low bidder under timber sale should have been given an award at its bid price, rather than offered an award at the higher price bid by the hrgh bidder, which was determined to be nonresponsible. is denied because the applicable timber sales regulation permits the agency to offer the award to the next low bidder at the higher bidder’s price m this situation. Page 42 Digests-August 1990 . B-239416. August 28. 1990 90-2 CPD 163 Procurement Sealed Bidding n Bids n n Clerical errors n n n Error correction n n n n Propriety Head of agency reasonably determined to permit correction of awardee’s bid based on a claim of mistake since the evidence submitted establishes the existence of a mistake, the manner in which it occurred, and the intended price. Procurement Sealed Bidding n Bids n n Clerical errors n n n Error correction n n n n Propriety Agency head vested with authority to correct mistakes in bid is not bound by contrary recommen- dations of contracting officer, nor is their disagreement reflective of a lack of clear and convincing evidence as determined by an independent consideration of the matter by the agency head B-239534, August 28, 1990 90-2 CPD 164 Procurement Socio-Economic Policies n Disadvantaged business set-asides n BUse n n n Administrative discretion In light of agency’s broad discretion to decide whether to contract or not under the section 8(a) program, there is no legal basis to object to agency’s reasoned decision to delete a portion of a requirement in a solicitation reserved for an 8(a) firm. Procurement Socio-Economic Policies q Small businesses n n Disadvantaged business set-asides n n n Preferences n n n n Computation General Accounting Office (GAO) denies protest concerning the proper method of applying the small disadvantaged business preference to procurement of natural gas where the identical issue was resolved in a recent GAO protest and Claims Court decisions involving the same agency and the same type of procurement. Page 43 Digests-August 1990 l B - 2 3 9 5 4 3 ,A u g u s t 2 8 , 1 9 9 0 90-2 CPD -165 P rocurement S o c i o - E c o n o m i c Policies n D i s a d v a n t a g e d business set-asides n BUse n n n Administrative discretion T h e S m a l l B u s i n e s s Competitiveness Demonstration P r o g r a m Act of 1988, 1 5 U S C . 8 6 4 4 note (19881,which provides, o n a test basis, for the issuance of solicitations o n a n unrestricted basis in four designated industry g r o u p s w h e r e a g e n c y small business participation goals h a v e b e e n met, specifically exempts procurements set aside for small disadvantaged business ( S D B ) concerns pur- suant to section 1 2 0 7 of the Defense Authorization Act of 1987, 1 0 U S C . Q 2 3 0 1 note (1988). There- fore, protest against S D B set-aside in o n e of four designated industry g r o u p s is denied. P rocurement S o c i o - E c o n o m i c Policies n Small businesses II n D i s a d v a n t a g e d business set-asides n n n Preferences n n n n Computation A g e n c y decision to set aside p r o c u r e m e n t for small disadvantaged business ( S D B ) concerns w a s p r o p e r w h e r e contracting officer d e t e r m i n e d that there w a s a r e a s o n a b l e expectation that offers w o u l d b e obtained from two responsible S D B firms at a fair market price. B - 2 3 9 5 5 0 ,A u g u s t 2 8 .1 9 9 0 90-2 CPD 166 P rocurement Sealed Bidding n Bids n n Clerical errors n n n E r r o r correction n n n n Propriety Protest of u p w a r d correction of low bid is d e n i e d w h e r e the record supports contracting a g e n c y ’s decision that there w a s clear a n d convincing evidence establishing both the existence of the mis- take (transposing n u m b e r s from work-sheets to bid form) a n d what the bid actually intended, a n d the bid is low with or without correction. P rocurement Sealed Bidding n Bids n n Clerical errors n n n E r r o r correction n n n n Propriety Contracting officer’s failure to obtain s w o r n statements supporting existence of mistake a n d a m o u n t of intended bid prior to permitting correction is not fatal to correction since nature of mistake a n d a m o u n t of intended bid a r e clear from the worksheets, the face of the bid, a n d the other bids a n d statutory penalties which provide a d e q u a t e protection against false statements or representations by bidder. P a g e 44 Digests-August 1990 i-239568. August 28. 1990 90-2 CPD 167 Procurement Bid Protests n GAO authoritv Procurement Socio-Economic Policies n Small business set-asides n n Industrial code n n n Classification n n n n Administrative discretion Challenge of Standard Industrial Classification (SIC) code assigned to a procurement by the agency is not for consideration by the General Accounting Office even where the SBA declines jurisdiction of a particular SIC code appeal since conclusive authority over this matter is vested in the Small Business Administration (SBA). B-239619, August 28, 1990 90-2 CPD 168 Procurement Bid Protests n Moot allegation n n GAO review Protest contending that award was improperly made to a large business because procurement was a small business-small purchase set-aside is denied where the request for quotations clearly stated that the procurement was unrestricted. Procurement Competitive Negotiation n Contracting officer duties n n Information disclosure Protest that agency failed to inform protester that procurement was unrestricted is denied where notice of this fact was clear from the face of the request for quotations. Procurement Competitive Negotiation n Offers n n Evaluation n n n Technical acceptability Agency evaluation finding protester’s offered alternate item technically unacceptable was reasona- ble where the protester failed to submit sufficient information demonstrating that its alternate item was the technical equivalent of the approved models listed in the request for quotations. Procurement Small Purchase Method n Notification procedures Contracting officer is not required to notify Small Business Administration (SBA) that small pur- chase procurement will not be set aside for small businesses because applicable Federal Acquisi- tion Regulation provision does not require SBA notification, and such notification would be incon- sistent with the general purpose and scheme of the small purchase procedures which are designed to promote efficiency and economy in contracting and to avoid unnecessary burdens on agencies. Page 45 Digests-August 1990 . B-239620. August 28.1990 90-2 CPD i69 Procurement Small Purchase Method n Requests for quotations n n Terms n n n Design specifications Contracting agency is not required to draft a special narrative purchase description setting forth the physical and functional characteristics of a relatively simple and common item being acquired through small purchase procedures where there is no indication that use of national stock num- bers and five manufacturers’ part numbers failed to adequately convey agency’s needs. B-239681. Awust 28. 1990 90-2 CPD 170 Procurement Contractor Qualification n Responsibility/responsiveness distinctions Post-bid-opening letter changing manufacturer specified in bid does not render bid nonresponsive since information concerning intended manufacturer was provided under Place of Performance Clause and related to responsibility, not responsiveness, and therefore could be changed before award. B-239808, August 28. 1990 90-2 CPD 171 Procurement Specifications n Minimum needs standards n n Competitive restrictions n n n Design specifications n n n n Justification Specification which requires motorized graders to be equipped with sealed disk brakes is not unduly restrictive of competition where the record shows that the graders will be used in remote areas far from maintenance facilities and that sealed disk brakes require less maintenance and adjustment than drum brakes. B-239919, August 28,199O 90-2 CPD 172 Procurement Small Purchase Method n Requests for quotations n n Terms n n n Design specifications Purchase description which identifies item by National Stock Number and certain salient charac- teristics and includes American National Standards Institute standards is unobjectionable since it provides sufficient detail to allow offerors to compete intelligently and on an equal basis. Page 46 Digests-August 1990 . B-‘237960.2, August 29, 1990 90-2 CPD 173 Procurement Bid Protests H GAO procedures n n GAO decisions n n n Reconsideration Request for reconsideration of decision is denied where the protester essentially only restates its initial arguments and expresses disagreement with initial decision Procurement Bid Protests n GAO procedures n H Protest timeliness n H n Apparent solicitation improprieties Allegation concerning solicitation impropriety which is raised for the first time in request for re- consideration is dismissed as untimely. B-239428, August 29,199O 90-2 CPD 174 Procurement Specifications n Performance specifications n 8 Waiver w n n Propriety Agency decision not to waive first article testing requirement for protester, a current producer of certain batteries and cells being procured for use on deep submergence rescue vehicles, was rea- sonable where the protester’s products have never successfully completed first article testing and problems have arisen during performance by the protester’s products which raise doubt as to whether they can perform in accordance with the specifications. B-239432, August 29, 1990 90-2 CPD 175 Procurement Bid Protests HGAO procedures n n Protest timeliness n n n Protest timeliness n H n H IO-day rule Protest of rejection of proposal and award to another firm filed within 10 working days of receipt of notice of award is timely under our Bid Protest Regulations. Procurement Competitive Negotiation n Offers n n Evaluation n n n Technical acceptability The procuring agency properly rejected the protester’s proposal for automated publishing and printing systems as technically unacceptable where the protester took exception in its best and final offer to the material solicitation term that it guarantee the availability of spare parts for 5 Page 47 Digests-August 1990 years and where the protester did not respond to deficiencies in its software noted by the age& during discussions. Procurement Competitive Negotiation n Offers W n Evaluation W W W Technical acceptability Protest that the awardee’s offered equipment does not satisfy a specification requirement that the scanner read and format subscript and superscript is denied, where the protester was not preju- diced by the agency’s relaxation of this requirement. Procurement Competitive Negotiation H Offers n W Evaluation W W W Technical acceptability Protest that the awardee’s equipment failed to comply with specification requirements for an auto- mated publishing and printing system is denied where the record shows that the awardee’s propos- al was reasonably evaluated as meeting the requirements B-239498, August 29,199O 90-2 CPD 176 Procurement Contract Management W Contract administration n H Options HWWUse H n n W GAO review In deciding to obtain a small quantity of ammunition links by exercising an existing contract option, agency properly determined on the basis of an informal market analysis that the option price was likely the lowest available for the quantity, notwithstanding the fact that the protester’s basic contract price under a recently awarded contract for the items was slightly lower in price, since that price was based on a very large quantity of links and the protester’s option quantity was priced higher Page 48 Digests-August 1990 . i-239499, August 29, 1990 90-2 CPD 177 Procurement Contract Management n Contract administration n H Options q HmUse 8 8 8 n GAO review Procurement Noncompetitive Negotiation H Industrial mobilization bases W W Competitive restrictions n n H Administrative discretion Protester’s generalized objections to agency decision to exercise a contract option in lieu of compet- ing a requirement for ammunition links to maintain an industrial mobilization base do not demon- strate that the agency abused its discretron in exercrsing the option B-239516, August 29, 1990 90-2 CPD 178 Procurement Small Purchase Method H Competition WBLJse H 1 W Criteria In keeping with their purpose-promoting efficiency and economy in contracting-small purchase procedures are specifically excepted from the full and open competition requirements of the Com- petition in Contracting Act of 1984 and the mandatory use of commercial item descrrptions Procurement Small Purchase Method W Requests for quotations n W Brand name specifications WuHUse H n n q Propriety Agency may use manufacturer part numbers as item descriptions in procurements conducted under Federal Acquisition Regulation (FAR, small purchase procedures so long as equal items can be offered thus satisfying the FAR requirement that those procurements be competed to the maxi- mum extent practicable. B-239579, August 29, 1990 90-2 CPD 179 Procurement Bid Protests H GAO procedures II n Protest timeliness n n H Apparent solicitation improprieties Where the protester failed to insert “50%” in the offeror’s percentage column on the certificate of minimum waste paper content as required by the solicitation for a firm intending to submit a cer- tified offer to supply paper with at least 50 percent waste paper content, the agency properly in- terpreted the protester’s offer as a noncertified offer to supply paper with no waste paper content. Page 49 Digests-August 1990 . I Procurement . Competitive Negotiation 8 O ffers 8 8 Evaluation 8 8 8 Technical acceptability Protest alleging solicitation impropriety apparent on the face of the solicitation for paper products (that the format of the solicitation and the certification of minimum waste paper content was am- biguous and confusing as written) is untimely when not filed prior to bid opening. B-239904.August 30.1990 90-2 CPD 188 Procurement Sealed Bidding 8 Bids 8 8 Error correction 8 n 8 Pricing errors 8 8 8 8 Line items Procuring agency improperly permitted bidder to correct a mistake in its bid where the only evi- dence of the alleged omitted cost is a subcontractor’s quotation which, while it is evidence of the cost of the work, does not establish bidder’s intended bid for the work. B-238436.5, August 31,199O 90-2 CPD 189 Procurement Bid Protests 8 G A O procedures 8 8 Protest timeliness 8 8 8 lo-day rule 8 8 8 8 Reconsideration motions Request for reconsideration of decision dismissing protest as untimely is denied where protest of responsiveness of awardee’s bid was not filed within 10 working days of when the protester was reasonably apprised of the agency’s position that the awardee’s bid was responsive. B-239148.2, August 31,199O 90-2 CPD 190 Procurement Bid Protests 8 G A O procedures 8 8 G A O decisions 8 8 8 Reconsideration Request for reconsideration of prior decision is denied where protester fails to show any error of fact or law that would warrant reversal or modification of prior decision. Page 50 Digests-August 1990 B-239431, August 31, 1990 90-2 CPD 191 Procurement Specifications 8 Minimum needs standards 8 n Competitive restrictions 8 8 8 Design specifications 8 8 8 8 Overstatement Where agency fails to show that specification restriction requiring that hot water generator con- trol system be designed, fabricated and delivered solely by the manufacturer is reasonable, solici- tation should be amended to eliminate improper restrictive specification. B-239525. August 31.1990 90-2 CPD 192 Procurement Bid Protests 8 Competition 8 8 Adequacy Procuring agency obtained full and open competition under the Competition in Contracting Act of 1984, despite having received only one proposal in response to the solicitation, where the agency made a good faith effort to obtain competition by publicizing the requirement, mailing solicitations to 36 firms, and holding 2 pre-proposal conferences attended by 5 potential offerors, and where record reasonably shows that other potential offerors did not submit proposals for business rea- sons. Procurement Competitive Negotiation 8 Requests for proposals 8 8 Advertising Where agency reasonably classified requirement for accounting and financial services for the rec- onciliation of contracts as miscellaneous services in its Commerce Business Daily (CBD) announce- ment of the procurement, CBD synopsis meets statutory and regulatory publication requirements. Procurement Competitive Negotiation 8 Requests for proposals n 8 Competition rights 8 8 8 Contractors 8 8 8 n Exclusion Where the agency published its intention of issuing a competitive solicitation in the CBD and mailed a solicitation package to the protester’s correct address, the protester bears the risk of non- receipt of the solicitation in the absence of evidence that the agency deliberately attempted to ex- clude the protester from participating in the procurement. Page 51 Digests-August 1990 J l B-240768. August 31.1990 90-2 CPD 193 Procurement Competitive Negotiation n Competitive advantage W H Foreign businesses There is no requirement that a procuring agency equahze whatever competitive advantage a for- eign firm may have because the firm is not subject to certain solicitation provisions, such as socio- economic requirements, applicable to United States concerns. Procurement Socio-Economic Policies n Preferred products/services W n Domestic sources E n n Foreign products W n W q Price differentials Offer of a foreign company is not subject to the application of the Balance of Payments Program price differential where end product is manufactured in one of the designated countries listed by regulation for exemption from the price differential. Page 52 Digests-August 1990
Digests of Decisions of the Comptroller General of the United States, Vol. I, No. 11
Published by the Government Accountability Office on 1990-08-01.
Below is a raw (and likely hideous) rendition of the original report. (PDF)