oversight

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)

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
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                                                                                                   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