oversight

Digests of Decisions of the Comptroller General of the United States, Vol. I, No. 8

Published by the Government Accountability Office on 1990-05-01.

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

             Q




    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
                                           ,




                                          ...
Preface                                   111

Table of Decision Numbers                 iv

Digests
  Appropriations/Financial   Management    1
  Civilian Personnel                       3
  Military Personnel                       7
  Miscellaneous Topics                     8
  Procurement                             10




Page ii
           t




This publication is one in a series of monthly pamphlets entitled “Digests of
Decisions of the Comptroller     General of the United States” which have been
published since the establishment      of the General Accounting    Office by the
Budget and Accounting Act, 1921. A disbursing or certifying official or the head
of an agency may request a decision from the Comptroller General pursuant to
31 U.S. Code 0 3529 (formerly 31 U.S.C. $0 74 and 82d). Decisions concerning
claims are issued in accordance with 31 U.S. Code $ 3702 (formerly 31 U.S.C. 6
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-238703, B-238704, May 31, 1990                   42     B-237005.2, May 31, 1990***       41
    B-195374.3, May 15, 1990                            5     B-237082, et al., May 8, 1990      1
    B-216640.8, May 16,1990***                          5     B-237122.2, May 17,199O           28
    B-222413.2, May 25, 1990                           36     B-237207.2, May 2, 1990           13
    B-227353, May 23,1990***                            2     B-237408.2, May 18, 1990          30
    B-230434.3, May 24, 1990                            2     B-237415.2, May 4, 1990           14
    B-232173, May 4, 1990                               4     B-237434.2, May 22, 1990          32
    B-233372.4, May 1, 1990***                         10     B-237486.2, May 17, 1990          29
    B-233742.5, et al., May 14,                               B-237557.2, May 4, 1990*“*        15
    1990***                                            24     B-237607, May 21, 1990             5
    B-234089.3, May 8, 1990                            19     B-237660, May 4, 1990              4
    B-234243.1, May 8, 1990                             8     B-237727.2, May 31,199O           41
    B-235902, May 22, 1990***                           6     B-237796, May 9,199O               7
    B-236057, May 9, 1990                               1     B-237800.2, May 2, 1990           13
    B-236057, May 9, 1990                               9     B-237836, May 2, 1990              3
    B-236219, May 4, 1990                               4     B-237864.2, May 31, 1990          41
    B-236265.4, May 29, 1990                           38     B-237865.2, B-237865.3, May 16,
    B-236450, May 1, 1990                              11     1990                              25
    B-236477.3, B-236477,4, May 15,                           B-237873.2, May 14, 1990          24
    1990                                               25     B-237915, May 4, 1990              1
    B-236601.2, May 7, 1990                            18     B-237972, May 22, 1990             6
    B-236603.2, May 24, 1990                           34     B-238095.2, May 8, 1990           19
    B-236784.2, May 25, 1990                           36     B-238169.2, May 16,199O           26
    B-236790.2, May 29, 1990                           38     B-238178.3, May 17, 1990          29
    B-236792.5, May 31, 1990                           40     B-238187, May 7, 1990             18
    B-236861, May 3, 1990                               3     B-238194, May 1, 1990             11
    B-236922.2, May 2, 1990                            12     B-238197, May 4, 1990             15
    B-236929.2, May 11, 1990***                        21     B-238200.2, May 4,199O            16



    ““‘lnotes published decisions) Cite published decisions as 69 Camp. Cm-




,   Page iv
      t

\
 Table of Decision Numbers




                                     Page                                     Page
B-238207, B-238207.2, May 1,                B-238487, May 25,199O               7
1990                                  11    B-238492, May 11, 1990             23
B-238236, May 11, 1990                22    B-238496, May 4, 1990              17
B-238250, May 10, 1990                21    B-238505, May 30,199O              40
B-238251, May 16, 1990                26    B-238551, May 16, 1990             27
B-238259, May 4, 1990                 16    B-238560, May 16, 1990             27
B-238273, B-238358, May 1,199O        12    B-238595, May 19, 1990             31
B-238276.2, May 30, 1990              40    B-238596, May 29, 1990             39
B-238281, May 1, 1990                 12    B-238600, May 16, 1990             28
B-238301, May 21, 1990                32    B-238621.2, B-238622.2, May 18,
B-238305. Mav 9. 1990                 20    1990                               31
B-238306, May 14, 1990***             24    B-238631, May 2, 1990              14
B-238354, May 22,1990***              33    B-238640, May 3,199O                3
B-238359, May 11, 1990                22    B-238645, May 3,199O               14
B-238366, May 11, 1990                22    B-238670, May 31, 1990             42
B-238371, May 18, 1990***             31    B-238674, May 10, 1990             21
B-238384. Mav 4. 1990                 17    B-238682, B-238682.2, May 16,
B-238402, May 23, 1990                34    1990                               28
B-238403, May 17, 1990* * *           30    B-238712.2, May 31,199O            43
B-238411.2, May 31, 1990              42    B-238783, May 11, 1990             23
B-238420. B-238420.2, Mav 24.               B-238838, May 22, 1990             33
                      ,      ”   ,



1990      ’                           35    B-238943.2, May 4,199O             17
B-238423, May 29,199O                 38    B-238959, May 2, 1990               8
B-238447. Mav 8.1990                  19    B-239016, May 17, 1990             30
B-238452, B-238452.2, May 16,               B-239136.2, May 18, 1990           32
1990                                  27    B-239201.1, May 8, 1990             8
B-238470, May 25, 1990                37    B-239262, May 24, 1990             35
B-238470, May 25, 1990                37    B-239330, May 22, 1990***          33
B-238487, May 25, 1990                 2




 Page v
                                                          ,


Table of Decision Numbers




B-239378, May 3, 1990       14   B-239630, May 25, 1990       38
B-239598, May 17, 1990       9   B-239687, May 24, 1990       36
B-239630, May 25, 1990      37   B-239846, May 31, 1990       43




Page vi
5 U.S.C. 8 5724ataX4) (19881   5
68 Comp. Gen. 681 (1989),
affirmed.                      5




Page vii
Appropriations/Financial
Management

B-237915, May 4,199O
Appropriations/Financial              Management
Amount Availability
n Augmentation
H n Gifts/donations
n n q Advertising
The Chairman, Committee on Government Operations, House            of Representatives,  is advised that
we have no legal objection to a memorandum      of understanding     entered into by the National Ar-
chives and Records Administration  (NARA) with Philip Morris       Companies Inc., in connection with
the bicentennial of the United States Constitution    during the    period of 1989-91, in view of the
broad statutory authority  granted NARA to solicit and accept       gifts. 44 U.S.C. $9 2112(g)(l), 2305
(Supp. v 1987).


B-237082, et al., May 8, 1990
Appropriations/Financial   Management
Accountable     Officers
q Disbursing officers
n q Relief
n n q Illegal/improper     payments
n 0 n n Overpayments
Relief is granted Department of the Treasury disbursing official under 31 U.S.C. 5 3527 for dupli-
cate check overpayments. The overpayments were not the result of bad faith or lack of reasonable
care, an adequate system of procedures and controls was maintained,    and diligent collection ac-
tions were taken.


B-236057, May 9,199O
Appropriations/Financial              Management
Claims Against Government
q Past due accounts
q q Royalties
q n n Interest
Section Ill(b) of the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA), 30 U.S.C.
3 1721(b), imposes an interest charge on any payment of oil or gas royalties made by the Secretary
of the Interior which is “not paid on the [monthly] date required under section 35” of the Mineral
Leasing Act (MLA). 30 U.S.C. 8 191. We believe this interest charge provision applies only to pay-
ments that are subject to the monthly payment date specified in section 35. Oil or gas royalty
payments from National Forest acquired lands, which the Forest Service is effectively responsible
for disbursing, are required to be distributed annually, in accordance with 16 U.S.C. 0 500, and are
not subject to the monthly payment requirement      of section 35 of the MLA. In our view, nothing in
FOGRMA changes this annual distribution        date requirement   for the Forest Service. Accordingly,

Page 1                                                                           Digests-May       1990
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these payments are not required to be made monthly as specified in section 35 of the MLA and are
not subject to the interest charge provision of section Ill(b) of FOGRMA.


B-227353, May 23, 1990”“”
Appropriations/Financial  Management
Budget Process
W Funds transfer
H W General/administrative      costs
W W W Cost allocation
Section 7(c)(2) of the Railroad Retirement Act of 1974, 45 U.S.C. $231f(c)(2) (1982), provides for
transferring  funds between the Social Security trust funds and the Railroad Retirement Account.
When computing costs for this purpose, either full costing or incremental        costing may be used
since administrative   cost determinations are left to the discretion of Railroad Retirement Board
and Secretary of Health and Human Services.


B-230434.3, May 24,199O
AtmromiationdFinancial  Management
Claims Against Government
H Claim settlement
n n GAO authority
Appropriations/Financial             Management
Claims Against Goverment
H Claim settlement
W W Pending litigation
W n n GAO review
Claimant is advised that this Office will take no further action on his claim since the claims are
currently the subject matter of his appeal before a court of competent jurisdiction,     and if his
appeal is unsuccessful, the doctrine of res judrcata would apply. There is no mandatory require-
ment that the Comptroller General must settle all claims for and against the United States since
the statutory language in 31 U.S.C. 9 3702(a) I 1988( states “except as provided in this chapter or
another law.”


B-238487, May 25, 1990
Appropriations/Financial             Management
Claims Against Government
W Burden of proof
When there is an irreconcilable dispute of fact between a government agency and a claimant, the
burden is on the claimant to prove his claim. See 4 C.F.R. 5 31.7. Therefore a service member’s
claim for a $150 withdrawal    from an automatic teller machine which he says he never received
must be denied when the Air Force record shows that the $150 was paid to him.




Page 2                                                                        Digests-May        1990
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    Civilian Personnel

    B-237836, May 2,199O
    Civilian Personnel
    Relocation
    H Purposes
    n n Determination
    W n q Administrative     discretion
    This summary letter decision addresses well established rules which have been discussed in previ-
    ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to
    decisions indexed under the above listed index entry.


    B-236861, May 3.1990
    Civilian Personnel
    Leaves Of Absence
    n Annual leave
    n n Forfeiture
    n n n Restoration
    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-238640. Mav 3.1990
                 I     “,-




    Civilian Personnel
    Travel
    W Bonuses
    H H Acceptance
    n n n Propriety
    Under GSA’s regulations and decisions of the Comptroller General, denied boarding compensation
    payments made by air carriers for failing to furnish seats to travelers who had tickets because of
    overbooking are due the government, not the travelers, when the payments result from travel on
    official business. The difference in treatment between these payments and payments made by air
    carriers to travelers voluntarily giving up their seats on overbooked airplanes (which the travelers
    would be allowed to keep) is explained in Elzzabeth Duphztier,    67 Comp. Gen. 328 (19881.




    Page 3                                                                        Digests-May      1990
B-232173, May 4, 1990
Civilian Personnel
Relocation
n Temporary quarters
n n Actual subsistence      expenses
1 q n Dependents
n n n n Eligibility
Husband and wife employees, who had dependent children, were separately transferred to Wash-
ington, D.C., 7 months apart. Both claimed a miscellaneous expense allowance under chapter 2,
part 3, of the Federal Travel Regulations, at the $700 rate for an employee with immediate family.
They are both entitled to the allowance because they were transferred at different times and each
transferred with a dependent child.


Civilian Personnel
Relocation
n Temporary quarters
n n Actual subsistence     expenses
n q n Spouses
n n n n Eligibility
Husband and wife employees were separately transferred       to Washington, DC., 7 months apart.
The husband, who was transferred first, was authorized and received temporary quarters subsist-
ence expenses (T&SE) for 120 days. Upon the wife’s later transfer she was authorized and received
60 days TQSE for herself and a dependent child, but her claim for her husband’s expenses as a
family member was disallowed. Since the husband and wife employees were transferred to the
same location but at different times, each is separately entitled to relocation expenses as an em-
ployee. Although the husband received full TQSE benefits in his own right, the wife may include
him as a family member under her TQSE entitlement,


B-236219, May 4,199O
Civilian Personnel
Travel
n Bonuses
n n Rebates
n 4 n Acceptance
n n n n Propriety
A federal employee who charges official travel expenses on a personal charge card and who re-
ceives a cash or credit rebate for purchases made on that card during the calendar year, is entitled
to keep the entire rebate. The rebate is not directly related to official travel and, therefore, is not
the property of the federal government.


B-237660, May 4,199O
Civilian Personnel
Travel
n Temporary duty
n n Travel expenses
n n W Reimbursement
A member of the U.S. Army Reserve serving a 138 day Temporary Tour of Active Duty in the
Washington, D.C. area, after responding to a request by Army Personnel for a legal officer resid-
ing in that area, is not entitled to travel expenses and mileage when he declared Columbia, Mary-


Page 4                                                                           Digests-May      1990
land, as his residence rather     than   his actual   home in Fayetteville,   North   Carolina,   in order to
qualify for the selection.


B-195374.3, Mas 15, 1990
Civilian Personnel
Relocation
W Expenses
n q Reimbursement
q n n Eligibility
n n q q Service breaks
An employee, separated from an agency by reduction-in-force     action, is not entitled to reimburse-
ment of relocation expenses since, under 5 U.S.C. 3 5724alc) (19701, he was not reemployed within 1
year from the date of separation. Upon further review of the circumstances in Robert Garcia,
B-195374, Sept. 14, 1979, we still decline to recommend this claim to the Congress as a meritorious
claim under 31 U.S.C. 9 3702td)(1988).


B-216640.8. Mav 16.1990”“”
Civilian Personnel
Compensation
n Overtime
q q Claims
n n m Statutes   of limitation
On reconsideration,   our prior decision denying additional overtime compensation to individual
members of the International     Association of Firefighters, Local F-100, is affirmed. An initial re-
quest for a decision was not accompanied by a signed representation         authorization or claim over
the signature of the individual claimants so as to toll the B-year Barring Act, 31 U.S.C. 0 3702(b)
(1982). The B-year period of limitation in 31 U.S.C. 5 3702(b) is a condition precedent to the right to
have a claim considered by our Office, and our Office has no authority to waive or modify its ap-
plication.


B-237607, Mav 21,199O
Civilian Personnel
Relocation
W Residence transaction         expenses
q n Reimbursement
q n n Eligibility
An employee who transferred from England to a position in the United States was issued travel
orders authorizing expenses for the sale of his residence in England. The employee is not entitled
to such expenses because his international    transfer was not of the type for which real estate ex-
penses are authorized under , and in any event the expenses allowed under that statute are limit-
ed to those incurred within the United States. In addition, we decline to submit the claim to Con-
gress for consideration as a meritorious claim under 31 U.S.C. 5 3702(d).




Page 5                                                                                Digests-May       1990
                                                                                                     .
B-235902, May 22, 1990***
Civilian Personnel
Compensation
n Retroactive compensation
n n Adverse personnel actions
n n n Attorney fees
n n n n Eligibility
Although there is no authority to pay attorney fees in connection with an administrative   settle-
ment of a complaint of age discrimination,  a federal agency may pay the full claim for attorney
fees related to settlement of an employee’s age and sex discrimination    complaints where the
agency concedes that the employee would have prevailed in the same manner on just the sex dis-
crimination complaint.


B-237972, May 22,199O
Civilian Personnel
Relocation
1 Residence transaction     expenses
n n Refinancing
n mmFees
n n n n Reimbursement
A transferred employee refinanced the mortgage on his residence at his old duty station to obtain
assumable financing to make it more saleable. The agency disallowed the percentage fee paid the
lender for refinancing as either a loan discount or prepayment of interest, neither of which may
be reimbursed under the Joint Travel Regulations (JTRI. The charge made by the lender, however,
is in the nature of a mortgage prepayment penalty which is an allowable expense under para-
graph 2-6.2dtlKg) of the Federal Travel Regulations and paragraph C14002d(l), item 7, of the JTR.
Therefore, payment may be made to the extent reasonable and customary and otherwise reimburs-
able under those provisions. See Marshall L. Dantrler, 64 Comp. Gen. 568 (1985).




Page 6                                                                       Digests-May     1990
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    Military Personnel

    B-237796, May 9,199O
    Military Personnel
    Pay
    H Pay retention
    H W Amounts
    W n W Computation
    While 10 U.S.C. $6330(d) in effect in 1981, authorized the crediting of part of a year that was 6
    months or more as a full year for eligibility for transfer to the Fleet Reserve and for multiplier
    purposes in computing retainer pay, there is no authority to credit 6 months or more service as a
    full year for the basic pay portion of the retainer pay formula.


    Militarv    Personnel
    Pay
    W Retirement pay
    W W Amount determination
    4 n W Computation
    n n H W Effective dates
    The retired pay of an enlisted member of the Navy transferred to the temporary disability retired
    list prior to September 30, 1983, should not be recomputed on his transfer to the permanent dis-
    ability retired list to reflect changes in the law for crediting of service for retirement purposes
    when no intervening active duty occurs.


    B-238487, May 25,199O
    Militarv Personnel
    Pay
    n Deposit accounts
    W H Automatic teller machines
    When there is an irreconcilable dispute of fact between a government agency and a claimant, the
    burden is on the claimant to prove his claim. See 4 C.F.R. 0 31.7. Therefore a service member’s
    claim for a $150 withdrawal    from an automatic teller machine which he says he never received
    must be denied when the Air Force record shows that the $150 was paid to him.




    Page 7                                                                        Digests-May     1990
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Miscellaneous Topics

B-238959, May 2,199O
Miscellaneous Topics
National Security/International        Affairs
W National defense interests
n W Set-off
H n n Reports
In order to prepare the annual offset report in compliance with section 309 of the Defense Produc-
tion Act of 1950, the Office of Management and Budget COMB) must use inter-agency studies cov-
ering the information   identified in Section 309(b)(l)(A) and (B) of the Act. 50 U.S.C. App. 8 2099(b)
(Supp. V 1987). Because the Act does not specify the method by which such studies are to be con-
ducted, a survey of subcontractors and nondefense industry sectors is not required, so long as the
studies otherwise satisfy the requirements of the Act.


B-234243.1, May 8, 1990
Miscellaneous Tonics
Federal Administrative/Legislative         Matters
H Administrative   agencies
1 H Financial management
n W n Statutes
H n n W Reformation
Section Ill(b) of the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA), 30 U.S.C.
3 1721(b), imposes an interest charge on any payment of oil or gas royalties made by the Secretary
of the Interior which is “not paid on the [monthly] date required under section 35” of the Mineral
Leasing Act (MLA). 30 U.S.C. 5 191. We believe this interest charge provision applies only to pay-
ments that are subject to the monthly payment date specified in section 35. Oil or gas royalty
payments from National Forest acquired lands, which the Forest Service is effectively responsible
for disbursing, are required to be distributed annually, in accordance with 16 U.S.C. 0 500, and are
not subject to the monthly payment requirement of section 35 of the MLA. In our view, nothing in
FOGRMA changes this annual distribution        date requirement for the Forest Service. Accordingly,
these payments are not required to be made monthly as specified in section 35 of the MLA and are
not subject to the interest charge provision of section 11 l(b) of FOGRMA.


B-239201.1, May 8,199O
Miscellaneous Tonics
Federal Administrative/Legislative         Matters
n Government corporations
n H Audits
n n W GAO authority
W 4 n E Statutes
Informal memorandum to AFMD staff summarizes the research on whether            statutes require GAO
to conduct financial audits of government corporations.

Page 8                                                                           Digests-May         1990
B-236057. Mav 9. 1990
Miscellaneous Topics
Environment/Energy/Natural            Resources
E Mineral issues
n n Royalties
n W n Interest
Section Ill(b) of the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA), 30 U.S.C.
9 1721(b), imposes an interest charge on any payment of oil or gas royalties made by the Secretary
of the Interior which is “not paid on the [monthly] date required under section 35” of the Mineral
Leasing Act iMLA1. 30 U.S.C. $191. We believe this interest charge provision applies only to pay-
ments that are subject to the monthly payment date specified in section 35 Oil or gas royalty
payments from National Forest acquired lands, which the Forest Service is effectively responsible
for disbursing, are required to be distributed annually, in accordance with 16 U.S.C $500, and are
not subject to the monthly payment requirement of section 35 of the MLA. In our view, nothing in
FOGRMA changes this annual distribution        date requirement   for the Forest Service. Accordingly,
these payments are not required to be made monthly as specified in section 35 of the MLA and are
not subject to the interest charge provision of section Ill(b) of FOGRMA.


B-239598, Mas 17, 1990
Miscellaneous Topics
Human Resources
n Health care
n n Communicable       diseases
W n W Administrative      determination
Provision in supplemental       appropriations  act directing the President to exclude HIV-infected
aliens from admission to the United States was not permanent legislation in view of the absence
of words of futurity, the fact that its purpose could be and was achieved during the effective period
of the act, and the legislative history of the section. Section 518, Pub. L. No. 100-71.


Miscellaneous Topics
Human Resources
n Health care
n n Communicable     diseases
W n W Administrative    determination
Miscellaneous Topics
National Security/International           Affairs
n Immigration/naturalization
n E Restrictions
q n n Communicable         diseases
Because the President retains discretion to continue to exclude HIV-infected         aliens from the
United States, if Congress now believes that HIV infection should not constitute     a basis for inad-
missibility of aliens, legislation may be required to effect that change.




Page 9                                                                          Digests-May      1990
Procurement

B-233372.4. Mav 1.1990”“”                                                             90-l CPD 436
Procurement
Bid Protests
H GAO procedures
n n Preparation  costs
Claim for bid protest costs incurred for working on a companion protest and in pursuit of a cost
claim, and for contacting a congressional representative, are disallowed since they are unrelated
to the pursuit of the protest.


Procurement
Bid Protests
n GAO procedures
n n Preparation  costs
Claim for a general and administrative      expense factor to be applied to protester’s    direct expenses
is disallowed in the absence of a sufficient explanation of the basis for that factor.


Procurement
Bid Protests
n GAO procedures
W W Preparation  costs
W n n Attorney fees
n n n n Amount determination
Agency’s general objections to the allegedly “excessive” number of hours claimed by the protester
as spent by its attorneys and employees in pursuit of its protest provide an insufficient basis for
concluding that the attendant costs are not reasonable where the hours are properly documented
and certified.


Procurement
Bid Protests
n GAO procedures
n n Preparation  costs
n n n Profits
Claim for profits on protester’s labor costs is disallowed   since there is no statutory   basis to award
profits as part of the costs for pursuing a bid protest.




Page 10                                                                            Digests-May       1990
.
    B-236450, May 1,199O
    Procurement
    Payment/Discharge
    n Unauthorized    contracts
    n n Quantum meruit/valebant         doctrine
    Where contracting agency reproduced in its own solicitation specifications drafted by the claimant
    without that firm’s prior approval, claimant is entitled, on a quantum v&bunt     basis, to the rea-
    sonable value of those services to the government.


    B-238194, May 1,199O                                                             90-l CPD 437
    Procurement
    Sealed Bidding
    n Bids
    q n Responsiveness
    n W n Terms
    n q n m Deviation
    Bid for printing services is nonresponsive to invitation   for bids requirement that bidder certify
    intent to supply paper containing waste paper content (WPC) of at least 50 percent. Bidder insert-
    ed “.50” under column entitled “Offeror’s Percentage” of WPC; therefore, bid must be interpreted
    as one-half of 1 percent for WPC or 49.5 percent less than that required.


    B-238207, B-238207.2, May 1,199O                                                 90-l CPD 438
    Procurement
    Competitive Negotiation
    II Best/final offers
    W n Submission
    q W q Timeliness
    Where awardee’s best and final offer (BAFO) is sent by facsimile transmission (FAX) 4 days prior
    to the closing date for BAFOs, but FAX is not time/date stamped by the contracting agency upon
    receipt, protest that agency failed to provide evidence of timely receipt is denied where protester
    does not contest that FAX was sent 4 days prior to the BAFO deadline, as indicated on the FAX
    copy, and the agency’s receiving employee attests that the FAX was timely received.


    Procurement
    Competitive Negotiation
    n Contract awards
    n q Propriety
    Where, after submission of best and final offers, contracting agency reduces its need for an item
    by one-half and awards a contract based on an evaluation of only one rather than two lots of the
    item as specified in the solicitation, agency did not improperly award the contract without amend-
    ing the solicitation to reflect the reduced requirement because offerors were on notice that they
    were competing for only one contract for one-half of the requirement if a split award were made,
    and therefore were not prejudiced by the change.




    Page 11                                                                       Digests-May      1990
B-238273, B-238358, May 1, 1990                                                    90-l CPD 439 ’
Procurement
Contractor   Qualification
n Licenses
n n State/local laws
n n n GAO review
The necessity for a business license in a particular state or locality is generally a matter between
the contractor and the issuing authority (although it can be considered in making a determination
of responsibility) and will not be a bar to a contract award, absent a specific licensing requirement
in the procurement solicitation.


Procurement
Small Purchase     Method
n Quotations
n n Submission     time periods
Under the simplified procedures for small purchases, quotations beyond these initially received
may generally be solicited and accepted by the government at any time prior to acceptance of any
quote.


B-238281, May 1, 1990                                                              90-l CPD 440
Procurement
Competitive Negotiation
n Offers
n q Evaluation errors
n n n Evaluation criteria
n n n n Application
Protest that agency failed to evaluate    offers consistently with solicitation’s evaluation scheme is
denied where protester’s interpretation   of applicable solicitation language is unreasonable.


B-236922.2, May 2,199O                                                             90-l CPD 441
Procurement
Noncompetitive   Negotiation
n Contract awards
n n Sole sources
n n n Propriety
Although the Competition     in Contracting Act of 1984 mandates that agencies obtain “full and
open competition” in their procurements through the use of competitive procedures, the proposed
sole-source award of a contract under the authority of 10 USC. 9 2304(cKll (1988) is not objection-
able where the agency reasonably determined that only one source could supply the desired non-
developmental   item within the time constraints of the procurement,  and the protester’s offered
product reasonably was not found compliant with the agency’s requirements,




Page 12                                                                         Digests-May      1990
B-237207.2, May 2,199O                                                                90-l CPD 442
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
W n q Reconsideration
Request for reconsideration based    on a protest allegation not considered in prior decision is denied
where the allegation was untimely      because the protester knew or should have known of this basis
of protest no later than the time   it filed its original protest. but failed to raise the matter until it
filed its comments to the agency      report, more than 10 working days after the date the basis of
protest was known or should have      been known.


B-237800.2, May 2,199O                                                                90-l CPD 443
Procurement
Competitive Negotiation
n Contract awards
n n Administrative   discretion
W n n Cost/technical   tradeoffs
n W n m Technical superiority
Award to the highest rated and highest priced offeror, instead of to the low-priced      offeror, is unob-
jectionable where the awardee had the best price/quality  point ratio.


Procurement
Competitive Negotiation
n Discussion
n n Adequacy
n q n Criteria
Although contracting agency did not point out all identified deficiencies in the protester’s proposal
during discussions, the protester was not materially prejudiced so as to justify sustaining its pro-
test, where, even assuming the protester’s proposal received the maximum total score in the af-
fected technical areas, it still would not be competitive with the awardee’s proposal.


Procurement
Competitive Negotiation
n Discussion
n W Misleading information
n n n Allegation substantiation
Agency did not mislead protester during discussions in stressing        the importance    of price where
price accounts for 50 percent of the specified evaluation weight.

Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Technical acceptability
Protest is denied where the protester was given a complete debriefing by the agency and addition-
al evaluation documentation  by the General Accounting Office (GAO) pursuant to its request for
documents under section 213tfl of GAO Bid Protest Regulations, 4 C.F.R. 3 21.3(f) (1989). and only

Page 13                                                                            Digests-May       1990
specifically contests the evaluation of certain subcriteria, the total value of which would not make
the protester competitive with the awardee even if it received a perfect score for these items.


B-238631, May 2, 1990                                                             90-l CPD 444
Procurement
Sealed Bidding
n Bids
n n Expiration
n n n Reinstatement
n q n q Propriety
Bidder may be allowed to revive its bid and extend its bid acceptance period after the bid has
expired where the bidder originally offered the minimum    acceptance period requested by the
agency and where revival of the bid would not compromise the integrity of the bidding system.


B-238645, May 3, 1990                                                             90-l CPD 445
Procurement
Bid Protests
m Fraud
n n Investigation
n n q Administrative     proceedings
Protest is dismissed where contracting agency has referred the matter of the disclosure of the pro-
tester’s proposal to a competitor to the Army Criminal Investigation  Division (CID) for investiga-
tion. The protester may reinstate its protest with the General Accounting Office after receipt of
the results of the CID’s report.


B-239378, May 3, 1990                                                             90-l CPD 446
Procurement
Bid Protests
W Private disputes
n n GAO review
The General Accounting Office will not consider a protest    that is based on what is essentially          a
dispute between private parties.


B-237415.2, May 4, 1990                                                           90-l CPD 447
Procurement
Bid Protests
n GAO authority
Determinations    of law in decisions issued by the General Accounting Office in resolving bid pro-
tests will generally be followed unless overruled by a subsequent decision, statute or regulation.

Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Arguments considered and rejected by the General     Accounting   Office in denying   original   protest
will not support request for reconsideration,


Page 14                                                                        Digests-May         1990
     .



B-237557.2, May 4,1990***                                                           90-l CPD 448
Procurement
Special Procurement   Methods/Categories
n Federal supply schedule
n n Terms
W n q Purchase orders
n H n 0 Quantity restrictions
Only reasonable reading of a Federal Supply Schedule contract is that an overall maximum order
limitation (MOL) on any order is to apply to all the items listed on that contract, including those
which do not have specific MOLs. Since the order for the lease of equipment exceeded the overall
MOL, the General Accounting Office recommends that it be terminated.


B-238197, May 4,199O                                                                90-l CPD 449
Procurement
Competitive Negotiation
n Oral solicitation
B n Cancellation
n n n Resolicitation
n n E q Propriety
Procurement
Competitive Negotiation
H Requests for proposals
n W Evaluation   criteria
n H 6 Cost/technical      tradeoffs
n H w 0 Weighting
Evaluation method which subordinates price to technical     considerations   is not per se defective be-
cause price is not weighted or scored with other factors.


Procurement
Competitive Negotiation
n Requests for proposals
E n Evaluation criteria
n n W Sufficiency
Where initial oral solicitation was properly canceled because among other things it provided no
common basis for evaluating offers, agency is not later precluded from conducting a separate com-
petitively negotiated procurement in which price is subordinated to technical considerations, even
though price may have been a more significant evaluation factor during the initial competition.


Procurement
Competitive    Negotiation
n Use
n H Criteria
Agency seeking to obtain creative contractor-provided     advertising services to publicly market real
property acted reasonably in subordinating    price to technical merit by using competitive negotia-
tion format in lieu of sealed bidding procedures.

                                                                                 Digests-May      1990
B-238200.2, May 4, 1990                                                          90-l CPD 450
Procurement
Bid Protests
n GAO procedures
n W Protest timeliness
n n H lo-day rule
Protest to the General Accounting Office of a December 1987 award to another offeror on the basis
that the firm was not qualified is dismissed as untimely because the protest was filed more than
10 working days after basis of protest was known or should have been known, and is not for con-
sideration under the “good cause” or “significant issue” exceptions to the timeliness rules.


Procurement
Contract Management
I Contract administration
n W Contract terms
n n n Modification
n W n n Propriety
Protest of modification to another offeror’s contract made 9 months after award which deleted a
requirement    that had been in the solicitation will not be considered by the General Accounting
Office because modification involves matter of contract administration  and it does not appear that
the contract was awarded with the intent to modify it or that the modification is beyond the scope
of the original contract.


B-238259. Mav 4. 1990                                                            90-l CPD 451
Procurement
Competitive Negotiation
n Contract awards
n H Administrative   discretion
n n W Cost/technical   tradeoffs
n H n n Technical superiority
Agency may properly select for award a more highly rated, higher-priced proposal despite the fact
that solicitation provides for price to be the most important evaluation factor, where it determines
that technical superiority of higher-priced proposal is worth the additional cost.


Procurement
Competitive Negotiation
W Discussion
W n Adequacy
n H W Criteria
Where solicitation asks offerors to respond to several sample tasks for the purpose of testing their
understanding    of the technical requirements of the contemplated contract, agency is not required
to spell out for the protester during discussions all weaknesses in its responses to the tasks since
the purpose of the sample tasks is to see if the offeror can identify and resolve technical issues
itself.




Page 16                                                                        Digests-May     1990
c




    P rocurement
    Contract Types
    W Fixed-price contracts
    W W Price determination
    n W n Cost i n c r e a s e
    W n W n Risk allocation
    W h e r e a fixed-price contract is to b e awarded, adjustment of proposals for price realism during
    evaluation for p u r p o s e s other than to assess the risk in a n offeror’s a p p r o a c h is inappropriate
    since a fixed-price contract is not subject to adjustment b a s e d o n the contractor’s cost experience
    during performance.


    B - 2 3 8 3 8 4 ,M a y 4 ,1 9 9 O                                                             90-l C P D 4 5 2
    P rocurement
    B i d Protests
    n G A O procedures
    n W Interested parties
    n W n Direct interest s t a n d a r d s
    G e n e r a l Accounting O ffice d o e s not consider protest issues which a r e essentially m a d e o n behalf of
    other potential competitors w h o themselves m a y properly protest as interested parties.


    P rocurement
    Specifications
    n Minimum needs standards
    n n Competitive restrictions
    W W W Justification
    n W n n Sufficiency
    Solicitation’s specifications a r e not u n d u l y restrictive of competition w h e r e the procuring a g e n c y
    establishes that requirements for certain film a n d automatic processing features represent a g e n -
    cy’s m i n i m u m n e e d s a n d protester, though disagreeing with a g e n c y ’s analysis, fails to s h o w that
    the restriction is clearly unreasonable.


    B - 2 3 8 4 9 6 , M a y 4 ,1 9 9 O                                                            90-l C P D 4 5 3
    P rocurement
    Sealed Bidding
    n Bids
    n W E r r o r correction
    n W W Pricing errors
    n H H H L i n e items
    A g e n c y properly refused to permit protester to correct a n alleged mistake in its bid w h e r e the
    correction w o u l d b e a recalculation of the bid after bid o p e n i n g to include a n item not originally
    considered.




    Page 17                                                                                    Digests-May        1990
                                                                                                ,



B-238943.2, May 4,199O                                                            90-l CPD 454
Procurement
Sealed Bidding
H Invitations    for bids
n W Cancellation
n I n Justification
n n W q Funding restrictions
Contracting agency has a compelling reason to cancel a solicitation   after bid opening where it de-
termines that sufficient funds are not available to make award.


B-236601.2, May 7, 1990                                                           90-l CPD 455
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n W Reconsideration
Request for reconsideration    is denied where the protester fails to show any error of fact or law
that would warrant reversal or modification of prior decision, but essentially reiterates arguments
considered in the initial decision.


Procurement
Bid Protests
H GAO procedures
H W Protest timeliness
n n n lo-day rule
General Accounting Office will not consider a request for reconsideration   on the basis of the pro-
tester’s subsequent provision of facts and information  which were available to the protester, but
which it failed to present at the time the protest was considered by our Office, particularly  since
the new information indicates that the protest was untimely when originally filed.


B-238187, May 7,199O                                                              90-l CPD 456
Procurement
Bid Protests
n GAO procedures
n 4 Protest timeliness
n W W Significant    issued exemptions
n H n W Applicability
While timeliness of protest issue concerning evaluation of electric rates is unclear, it will be con-
sidered as a significant issue because it is one not previously decided and which may arise in
future procurements for electric service.


Procurement
Competitive    Negotiation
n Offers
n W Evaluation    errors
n W 4 Prices
Cost evaluation of proposal for electric service for lo-year period did not result in a reasonably
accurate prediction of the actual cost of the service where the agency’s calculations were based on

Page 18                                                                        Digests-May      1990



                                            I
      .

L a January start date rather than the August start date listed in the solicitation and under the
  offered rate scheme, annualized results based on a January start date differ from those based on
  an August start date.


  Procurement
  Competitive Negotiation
  W Offers
  n W Prices
  n 0 W Rate schedules
  n n H H Utility services
  Where offeror’s proposal for electric service contains two rate schedules, one of which is unaccept-
  able, but the unacceptable rate was not considered by agency in its cost evaluation and award
  selection and its inclusion in the resulting contract would have no impact on the services offered
  under the acceptable rate, the proposal may be accepted.


  B-234089.3, May 8,199O                                                            90-l CPD 457
  Procurement
  Bid Protests
  W GAO decisions
  W H Recommendations
  W W H Modification
  Agency request that General Accounting Office modify corrective action recommended in original
  decision is denied where request does not include any support for assertion that recommended re-
  solicitation would result in a delay of 300 days and significant cost to agency and firms that sub-
  mitted proposals under original solicitation.


  B-238095.2, May 8, 1990                                                           90-l CPD 458
  Procurement
  Bid Protests
  W GAO procedures
  6 W GAO decisions
  W W n Reconsideration
  Request for reconsideration  is denied where based on information     that could have been but was
  not presented during consideration of original protest.


  B-238447. Mav 8.1990                                                              90-l CPD 459
  Procurement
  Bid Protests
  W Moot allegation
  H n GAO review
   Procurement
  Competitive Negotiation
  W Contract awards
  W n Errors
  H H n Corrective actions
  H n n W Moot allegation
   Protest that an award was made under a request for proposals to an offeror whose proposal did
   not meet the specifications of the solicitation is dismissed as academic when the agency deter-

   Page 19                                                                       Digests-May      1990
mines that the solicitation   was defective   and the award improper     and takes the appropriate    car-   *
rective action.


B-238305, May 9, 1990                                                                90-l CPD 460
Procurement
Competitive   Negotiation
H Contract awards
H W Administrative     discretion
n 4 n Cost/technical     tradeoffs
1 W W H Technical superiority
Agency reasonably awarded a negotiated contract for travel services on the basis of initial propos-
als to the highest technically rated offeror, proposing the most advantageous combination of re-
bates, discounts, and price initiatives, where the solicitation informed offerors of that possibility
and no discussions were conducted with any offeror.


Procurement
Competitive  Negotiation
W Discussion
H n Determination    criteria
Agency’s communications      with offeror concerning required small and disadvantaged business sub-
contracting plan relate to offeror’s responsibility  and do not constitute discussions or require that
revised proposals be solicited from all offerors.


Procurement
Competitive    Negotiation
W Offers
n n Evaluation
I n I Technical acceptability
Agency reasonably found protester’s offer to contain deficiencies with regard to aspects of its orga-
nizational, staffing, quality control, and automation plans, as well as personnel qualifications.


Procurement
Competitive   Negotiation
n Technical evaluation boards
H W Bias allegation
n q H Allegation    substantiation
H W n H Evidence sufficiency
Protest alleging bias must present convincing      evidence to support    its claims, since procurement
officials are presumed to act in good faith.




Page 20                                                                           Digests-May        1990
B-238250, May lo,1990                                                            90-l CPD 461
Procurement
Government Property       Sales
H Timber sales
W W Bids
H W R Certification
Procurement
Sealed Bidding
n Bids
n q Responsiveness
W W H Certification
H W W W Omission
The agency properly rejected the high bid in a sealed-bid timber sale, where the high bidder failed
to include with its sealed bid a Certificate of Small Business Status, which contained a contract
performance requirement that certain contract work be accomplished with the bidder’s own em-
ployees.


B-238674, May 10, 1990                                                            90-l CPD 462
Procurement
Contractor Qualification
H Responsibility
n q Contracting   officer findings
W 4 n Negative determination
n H n n GAO review
Protest that agency’s nonresponsibility     determination and subsequent refusal of the Small Busi-
ness Administration  to issue a certificate of competency was erroneous in light of new information
submitted by the protester is denied where record does not show that any new information          was
presented.


Procurement
Socio-Economic    Policies
W Small businesses
n q Competency certification
II W W Bad faith
W H W n Allegation substantiation
Protest that Small Business Administration’s    (SBAI denial of certificate of competency was based
on incorrect information    provided by agency is denied where record indicates that information
considered by the contracting officer and forwarded to SBA was accurate.

B-236929.2, May 11, 1990”“”                                                       90-l CPD 463
Procurement
Sealed Bidding
H Bids
n W Responsiveness
n n W Price omission
n E W W Line items
The protester’s deletion of one subline item in its low bid on a sealed-bid procurement should be
waived as a minor informality  where the deleted bid requirement was not material or an essential

Page 21                                                                        Digests-May      1990
or integral part of the overall contract   work and where the waiver    of the requirement   would not
affect the relative competitive standing   of the bidders.


B-238236. Mav 11. 1990                                                              90-l CPD 464
Procurement
Sealed Bidding
n Bids
n n Responsiveness
W n n Signatures
n n n n Omission
A bidder’s failure to sign its bid may be waived as a minor informality     when the bid is accompa-
nied by a document bearing the bidder’s signature, since the signature      demonstrates the bidder’s
intent to be bound by its bid.


B-238359, Mav 11. 1990                                                              90-l CPD 465
Procurement
Competitive Negotiation
q Competitive advantage
n n Non-prejudicial   allegation
Protest against determination    by agency not to make inspection equipment located in mobilization
base contractor’s facility available to other offerors but instead to apply rental evaluation factor is
denied as application of rental evaluation factor is proper to equalize competitive advantage and
retention of equipment to support other mobilization based contracts was reasonable.


Procurement
Competitive    Negotiation
n Offers
n n Evaluation
n n n Industrial   mobilization     bases
n n n n Equipment
Allegation by protester who did not submit a proposal that awardee’s price is unreasonable       is dis-
missed because protester is not an interested party to raise that allegation.


B-238366, May 11.1990                                                               90-l CPD 466
Procurement
Noncompetitive     Negotiation
n Sole sources
q n Justification
n n n Foreign/international    tribunals
n n n n Cooperative agreements
Where an international    organization, comprised of 11 nations including the United States, speci-
ties that supplies and services be purchased from a particular firm, the Navy may properly specify
that firm when purchasing the supplies and services on behalf of the international   organization.




Page 22                                                                          Digests-May     1990
.
    Procurement
    Noncompetitive      Negotiation
    n Sole sources
    n n Justification
    q q H International     organizations
    q q n q Cooperative agreements
    A justification and approval for a noncompetitive award that states that a market survey was not
    conducted because a “directed source” was designated pursuant to an international      agreement
    adequately states why the market survey was not conducted.


    B-238492, Mas 11, 1990                                                             90-l CPD 467
    Procurement
    Competitive Negotiation
    q Requests for proposals
    q q Cancellation
    q n n Justification
    n q PI W Funding restrictions
    Notwithstanding    the validity of the government estimate or the contracting agency’s determina-
    tion that all bid prices were unreasonably high, agency’s cancellation of solicitation after bid open-
    ing is proper where sufficient funds are not available to make award to the low responsive bidder.


    Procurement
    Socio-Economic   Policies
    n Small business 8(a) subcontracting
    n n Contract awards
    q n n Propriety
    Small Business Administration      (SBA) regulations prohibiting acceptance of contract into section
    8(a) program where competitive solicitation for the requirement has already been issued as a small
    business set-aside, or where SBA finds that doing so would adversely affect other small businesses,
    do not prohibit setting aside contract under the 8(a) program where: (1) solicitation originally was
    issued as a small disadvantaged business set-aside, not a regular small business set-aside, and later
    was converted to an unrestricted procurement; and (2) SBA has made no finding that acceptance
    of the contract into the 8(a) program would adversely affect other small businesses.


    B-238783, May 11, 1990                                                             90-l CPD 468
    Procurement
    Bid Protests
    n GAO procedures
    n q Interested parties
    n n q Suspended/debarred        contractors
    Suspended offeror is not an “interested party” under General Accounting      Office’s Bid Protest Reg-
    ulations because a suspended offeror is not eligible for award.




    Page 23                                                                         Digests-May      1990
B-233742.5, et al., May 14, 1990”“”                                                  90-l CPD 469           -
Procurement
Bid Protests
n GAO decisions
n n Recommendation           affirmation
Recommendation      to reopen negotiations under revised specifications is affirmed notwithstanding
potential for additional cost to the government where any such cost would be due in large measure
to the agency having placed a substantial order under the contract after the protest conference, at
which the awardee’s compliance with the specifications was in issue, and only 1 month prior to the
due date for the General Accounting Office’s decision.


Procurement
Bid Protests
W GAO procedures
n n GAO decisions
n n n Reconsideration
Decision finding that awardee’s proposal was noncompliant      with solicitation requirements, and
recommending that negotiations be reopened under revised specifications, is affirmed where recon-
sideration request is based on mere disagreement with prior decision or arguments that could
have been, but were not, raised during consideration of protest, and record does not otherwise
show error of fact or law warranting reversal or modification of decision.


B-237873.2, May 14,199O                                                               90-l CPD 470
Procurement
Competitive Negotiation
n Contract awards
n n Administrative   discretion
n n n Cost/technical   tradeoffs
n n n n Technical superiority
Decision to award      to higher-priced, higher technically rated offeror was proper where the solicita-
tion award criteria      made technical considerations more important than price and the agency rea-
sonably concluded      that the awardee’s higher total point score resulting from its technical superior-
ity established that     its proposal was worth the price premium.


B-238306, May 14,1990***                                                              90-l CPD 471
Procurement
Special Procurement  Methods/Categories
n Federal supply schedule
W n Offers
n n n Rejection
n n n n Propriety
Under multiple-award     Federal Supply Schedule (FSS) solicitation, where agency determined that
protester offered required most favored customer pricing-prices         equal to or lower than offeror’s
lowest commercial prices-for     certain percentage of large number of items and solicitation provid-
ed for possible award on a product-by-product    basis, outright rejection of proposal for unreasonable
pricing was improper; agency should have given protester opportunity          through discussions to es-
tablish which items were priced acceptably, requested best and final offer, and included protester
on FSS for all properly priced items.

Page 24                                                                            Digests-May      1990
B-236477.3, B-236477.4, May 15, 1990                                              90-l CPD 472
Procurement
Bid Protests
W GAO procedures
H W GAO decisions
H n H Reconsideration
Decision sustaining protest that agency’s failure to provide preaward notice of proposed award
under small business set-aside resulted in improper circumvention    of size status protest proce-
dures, to the prejudice of the protester, is affirmed, where requests for reconsideration   fail to
specify errors of fact or law in original decision.


Procurement
Bid Protests
n GAO procedures
W H GAO decisions
H W W Reconsideration
Arguments that agency could have presented,    but did not present, during   consideration   of protest
are not basis for reconsidering decision.


Procurement
Bid Protests
W GAO procedures
n n GAO decisions
W W W Reconsideration
Procurement
Bid Protests
W GAO procedures
n W Interested parties
Where interested party was aware of protest but did not actively participate in process by present-
ing or responding to arguments, party is not eligible to request reconsideration of decision on pro-
test.


B-237865.2, B-237865.3, May 16,199O                                               90-l CPD 473
Procurement
Competitive Negotiation
W Offers
H n Evaluation
n n H Personnel experience
Corporate experience requirement in solicitation was an evaluation factor, not a definitive respon-
sibility criterion, because consideration for award was not contingent upon offeror’s showing of 5
years of experience, rather, the quality of such experience was to be evaluated as to its acceptabil-
ity.




Page 25                                                                         Digests-May        1990
                                                                                                                r




P rocurement
Competitive Negotiation
n O ffers
W W Evaluation
W W n Personnel experience
A g e n c y ’s consideration of a subcontractor’s experience u n d e r the relevant evaluation factor w a s
p r o p e r w h e r e solicitation did not prohibit u s e of subcontractors to perform the contract, or u s e of
subcontractor to satisfy experience requirement.


P rocurement
Competitive Negotiation
E R e q u e s t s for p r o p o s a l s
W H Terms
n H H Subcontractors
Sslicitation provision barring subcontracting without written permission of contracting officer by
its terms applies only to additional subcontracting p r o p o s e d after a w a r d a n d therefore did not pro-
hibit offerors from p r o p o s i n g the u s e of subcontractors in initial proposals.

B - 2 3 8 1 6 9 .2 ,M a y 1 6 ,1 9 9 O                                                         90-l C P D 4 7 4
P rocurement
Sealed Bidding
W Invitations for bids
W n Post-bid o p e n i n g cancellation
W W W Justification
n W W E Sufficiency
Protest that a g e n c y acted in b a d faith in canceling solicitation is d e n i e d w h e r e protester asserts,
but there is n o evidence showing, that the a g e n c y only canceled the solicitation to r e n d e r original
protest challenging rejection of bid a c a d e m i c and, thus, to prevent G e n e r a l Accounting O ffice from
issuing a decision.


P rocurement
Sealed Bidding
E Invitations for bids
n n Post-bid o p e n i n g cancellation
W W n Resolicitation
Contracting officer properly canceled invitation for bids after bid o p e n i n g a n d resolicited o n the
basis of revised specifications w h e r e original specifications overstated the g o v e r n m e n t ’s m i n i m u m
n e e d s in s o m e respects and, in others, failed to include certain requirements the a g e n c y d e e m s
material a n d necessary to m e e t its needs.


B - 2 3 8 2 5 1 , M a y 1 6 ,1 9 9 O                                                          90-l C P D 4 7 5
P rocurement
Contractor         Qualification
W Licenses
Protest that at tim e of award, a w a r d e e did not h a v e Nuclear Regulatory C o m m i s s i o n licenses re-
quired by solicitation is sustained w h e r e record indicates that contracting a g e n c y did not review
whether a w a r d e e h a d the appropriate licenses but simply relied o n a g e n c y responsible for quali-
fied parts list ( Q P L ) to verify possession of licenses a n d the record d o e s not indicate that Q P L a u -
thority reviewed whether a w a r d e e h a d licenses called for by solicitation.

Page 26                                                                                     Digests-May        1990
    .



B-238452, B-238452.2, May 16, 1990                                              90-l CPD 476
Procurement
Competitive Negotiation
W Contract awards
q H Propriety
Award to offeror whose proposal in negotiated procurement failed to conform to material specifica-
tion requirement concerning computer source code was improper where waiver of requirement re-
sulted in competitive prejudice.


B-238551. Mav 16. 1990                                                          90-l CPD 477
Procurement
Bid Protests
n GAO procedures
n W Protest timeliness
II E W Apparent   solicitation   improprieties
Objection to agency’s use of small purchase procedures and allegations that agency may have mis-
described its minimum needs and provided inadequate packaging instructions are dismissed as un-
timely where not raised until protester’s comments on the agency report, well after the due date
for receipt of quotations.


Procurement
Small Purchase    Method
q Requests for quotations
E W Terms
q H q Design specifications
Agency is not required to use federal specifications included in General Services Administration
Index of Federal Specifications, Standards and Commercial Item Descriptions where procurement
is conducted under Federal Acquisition Regulation small purchase procedures, which is specitical-
ly excepted from this requirement.


B-238560, May 16,199O                                                           90-l CPD 478
Procurement
Special Procurement   Methods/Categories
H Off-schedule purchases
W W Propriety
Where contracting agency is not a mandatory user of General Services Administration       Federal
Supply Schedules, the agency may properly purchase items on the “open market” when the con-
tracting agency determines that it would be in the government’s best interest in terms of quality,
responsiveness, or costs.


Procurement
Specifications
S Brand name/equal    specifications
q E Equivalent products
W 4 H Acceptance criteria
Protest that awardee’s high-density movable shelving system fails to meet certain characteristics
of brand name product in a “brand name or equal” procurement is denied where the protested
characteristics were not included in the specifications and contracting agency determined that the
awardee’s product was equal to the brand name product.

Page 27                                                                      Digests-May     1990
                                                                                                .



B-238600, May 16, 1990                                                           90-l CPD 479
Procurement
Sealed Bidding
4 Bids
W W Responsiveness
n W n Terms
W W q W Deviation
Protester’s bid was properly rejected as nonresponsive where protester took exception in its bid to
a material solicitation requirement that paper products to be furnished contain a minimum of 50
percent waste paper.


Procurement
Bid Protests
n GAO procedures
H n Protest timeliness
W W H Apparent solicitation     improprieties
Protest alleging specification impropriety  apparent on the face of the solicitation, that minimum
waste paper content requirement      for paper product being purchased is ambiguous, is untimely
when not filed prior to bid opening.


B-238682, B-238682.2, May 16,1990***                                             90-l CPD 480
Procurement
Special Procurement  Methods/Categories
W Federal supply schedule
WHIJse
W n n Propriety
Contracting agency may acquire items under a Federal Supply Schedule (FSS) contract where inci-
dental, non-FSS items are also being acquired in the same procurement so long as the acquisition
is made at the lowest aggregate price and the cost of the non-FSS items is insignificant  compared
to the total cost of the procurement. Where agency solicits a fully integrated system, a significant
portion of which is not available under FSS, agency cannot reasonably conclude that items to be
acquired are FSS items and, therefore, agency is required to procure entire system on open
market.


B-237122.2, May 17,199O                                                          90-l CPD 481
Procurement
Competitive  Negotiation
W Discussion
n W Determination    criteria
Agency engaged in discussions with offeror where correspondence between the parties resulted in
significant revisions to firm’s initially offered price. Fact that agency was motivated initially to
correspond with firm because of suspected mistake was immaterial where ultimately the commu-
nications resulted in price revisions which were not based on errors in calculations, but rather an
error in judgment.




Page 28                                                                       Digests-May      1990
       .

.
    Procurement
    Competitive Negotiation
    n Discussion reopening
    W W Propriety
    H n W Best/final  offers
    n n n n Corrective actions
    Despite disclosure of    competitors’ prices, agency decision to hold discussions and request best and
    final offers to remedy    improper discussions held after initial offers were submitted is not objection-
    able. Risk of possible   auction is secondary to the need to preserve the integrity of the competitive
    procurement system,       and agency has significantly  changed requirements which lessens potential
    for auction.


    B-237486.2, May 17, 1990                                                              90-l CPD 482
    Procurement
    Competitive Negotiation
    W Discussion
    q H Offers
    n W W Clarification
    n n W W Propriety
    Prior decision sustaining protest on basis that the agency improperly reopened negotiations with
    one offeror without providing the same opportunity    to the other offeror in the competitive range is
    affirmed where the agency request for reconsideration       misconstrues our decision rationale, and
    does not establish any factual or legal errors in the prior decision.


    Procurement
    Bid Protests
    H GAO procedures
    n E GAO decisions
    E n n Reconsideration
    Prior decision sustaining protest on basis that the agency improperly reopened negotiations with
    one offeror without providing the same opportunity to the other offeror in the competitive range is
    affirmed where the agency request for reconsideration       misconstrues our decision rationale, and
    does not establish any factual or legal errors in the prior decision.


    B-238178.3. Mav 17.1990                                                               90-l CPD 483
    Procurement
    Bid Protests
    W GAO procedures
    n W Protest timeliness
    W W W Significant    issue exemptions
    q W H n 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 widespread interest to the procurement community




    Page 29                                                                            Digests-May      1990
                                                                                                                     l




P rocurement
B i d Protests
W G A O procedures
W q Protest timeliness
n n n lo-day rule
Protester’s lack of actual k n o w l e d g e of G e n e r a l Accounting O ffice’s B i d Protest Regulations is not
a defense to dismissal of its protest as untimely since protesters a r e o n constructive notice of the
Regulations, as they a r e published in the Federal Register a n d C o d e of Federal Regulations.


B - 2 3 8 4 0 3 , M a y 1 7 ,1990***                                                              90-l C P D 4 8 4
P rocurement
Competitive Negotiation
W O ffers
W n Cost realism
n H n Evaluation
W W II n Administrative discretion
A g e n c y m a y rely o n the r e c o m m e n d a t i o n s of the Defense Contract Audit A g e n c y concerning direct
labor a n d indirect cost rates in analyzing cost proposals.


P rocurement
Competitive Negotiation
W O ffers
W W Evaluation
W n H Personnel
A g e n c y d o e s not h a v e a duty to verify the availability of prospective e m p l o y e e s p r o p o s e d by a n
offeror for w h o m offeror h a s submitted letters of commitment.


B - 2 3 9 0 1 6 , M a y 1 7 ,1 9 9 O                                                              90-l C P D 4 8 5
P rocurement
Sealed Bidding
n Invitations for bids
H H Cancellation
H n n Justification
Contracting a g e n c y properly canceled solicitation w h e r e the solicitation failed to state that the
item b e i n g p r o c u r e d w a s subject to a qualification requirement a n d the a g e n c y did not provide
bidders with a r e a s o n a b l e opportunity to demonstrate the acceptability of their products prior to
bid opening.


B - 2 3 7 4 0 8 .2 ,M a y 1 8 ,1 9 9 O
P rocurement
B i d Protests
I G A O procedures
n n G A O decisions
n n n Reconsideration
Letter r e s p o n d i n g to reconsideration request explains that request d o e s not include statement of
factual or legal g r o u n d s warranting reversal or modification of decision as required by B i d Protest
Regulations but only raises a n u m b e r of procedural matters which did not prejudice the protester.

P a g e 30                                                                                     Digests-May         1990
.
    Letter also explains that General Accounting    Office nonetheless   carefully   reexamined   the record
    and concluded that decision was correct.


    B-238371, May 18, 1990***                                                            90-l CPD 486
    Procurement
    Competitive Negotiation
    n Competitive advantage
    n n Conflicts of interest
    q n q Allegation substantiation
    n n q n Lacking
    Protest that awardee is ineligible for a contract because of a conflict of interest arising from its
    relationship  with a company which could possibly be subject to audit services required under
    present contract is denied where agency reasonably determines that no actual conflict exists and
    where agency’s proper administration   of task orders issued under contract would provide adequate
    safeguards to prevent the contractor from possibly conducting a biased audit.


    Procurement
    Competitive    Negotiation
    n Offers
    n B Evaluation
    n n n Personnel     experience
    Protest that awardee’s proposed labor mix does not meet solicitation personnel education and ex-
    perience requirements, and therefore agency’s evaluation of awardee’s proposal was unreasonable,
    is denied where record shows that proposed labor mix met the solicitation staff requirements.


    B-238595, May 18,199O                                                                90-l CPD 487
    Procurement
    Bid Protests
    n GAO procedures
    q n Protest timeliness
    n q q lo-day rule
    Protest is dismissed as untimely where protest was filed almost 7 months after protester received
    notice of award; protester has not met its obligation of diligently pursuing the basis of its protest.


    B-238621.2, B-238622.2, May 18, 1990                                                 90-l CPD 488
    Procurement
    Bid Protests
    n GAO procedures
    n n GAO decisions
    n n n Reconsideration
    Dismissal of bid protest will not be reconsidered where protester    does not specify any error of fact
    or law that would warrant reversal or modification.




    Page 31                                                                           Digests-May       1990
B-239136.2, May l&l990                                                             90-l CPD 489
Procurement
Bid Protests
W GAO procedures
n W GAO decisions
n W H Reconsideration
Request for reconsideration  of dismissal of protest challenging acceptability of competitor’s bid is
denied where the competitor’s failure to complete representation concerning its number of employ-
ees did not eliminate or reduce its obligation to perform services in conformity with all material
terms and conditions of the solicitation.


B-238301, May 21,199O                                                              90-l CPD 490
Procurement
Bid Protests
n GAO procedures
H n Protest timeliness
n H W lo-day rule
Where Commerce Business Daily (CBD) notice announcing agency’s plan to make a sole-source
award gives other potential sources an opportunity    to submit expressions of interest showing their
capability to perform, potential offeror must, as a prerequisite to filing a protest challenging the
sole-source decision, submit a timely expression of interest in response to the CBD notice.


Procurement
Bid Protests
n GAO procedures
n N Protest timeliness
n n n Significant issue exemptions
H n W n Applicability
General Accounting Office (GAO) will not consider the merits of an untimely protest by invoking
the significant issue exception in GAO’s Bid Protest Regulations, where the protest does not raise
an issue of first impression that would be of widespread interest to the procurement community.


B-237434.2, May 22,199O                                                            90-l CPD 491
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
H H n Reconsideration
Decision finding that procuring court reporting services for interim period under an existing con-
tract constituted improper sole-source award-because         new services were not within the scope of
the contract as originally awarded and agency was aware incumbent contractor for services was
interested in competing-is     affirmed where reconsideration is based on arguments that could have
been, but were not raised during consideration of protest, and record does not otherwise show
error of fact or law warranting     reversal or modification of decision.




Page 32                                                                         Digests-May      1990
.

    B-238354, May 22, 1990***                                                         90-l CPD 492
    Procurement
    Competitive Negotiation
    W Offers
    q H Evaluation  errors
    E 0 8 Personnel experience
    E n q q Point ratings
    Agency’s use of a rating plan that resulted in the assignment of zero points for a labor category in
    the evaluation of protester’s best and final offer, on the ground that 3 of 11 resumes submitted for
    the category were unacceptable, was an improper material departure from the evaluation plan set
    forth in the solicitation; the plan stated there, and used by the agency in evaluating initial propos-
    als provided for a composite score based on the scores of all resumes submitted, regardless of
    whether any particular resume was found unacceptable.


    B-235838, May 22,199O                                                              90-l CPD 493
    Procurement
    Bid Protests
    n GAO procedures
    q q Interested parties
    Protester who did not submit an offer under a solicitation and argues that it could not do so is not
    an interested party to complain about an awardee’s price submitted in response to the solicitation.


    Procurement
    Bid Protests
    E GAO procedures
    H H Protest timeliness
    II n q Apparent solicitation     improprieties
    Protest that contracts awarded under the terms contained in a solicitation will unfairly deprive
    protester of orders under its own Federal Supply Schedule contract is untimely where it was not
    filed prior to the time set for the receipt of offers under the solicitation.


    B-239330, May 22, 1990***                                                          90-l CPD 494
    Procurement
    Socio-Economic     Policies
    n Small businesses
    n W Contract award notification
    n H n Notification   procedures
    W W n n Pre-award periods
    Procurement
    Socio-Economic    Policies
    n Small businesses
    W n Contract awards
    H n n Size status
    W W H n Misrepresentation
    Protest is sustained where agency, without notice to unsuccessful offerors, awarded a contract
    under a small business set-aside to a firm ultimately determined by the Small Business Adminis-
    tration to be other than small, based on agency’s desire to make immediate award in order to

    Page 33                                                                         Digests-May      1990
avoid the administrative        inconvenience   of applying   for an exception   from    a rumored    funding
freeze.


Procurement
Socio-Economic       Policies
n Small business set-asides
w n Contract awards
H H H Price reasonableness
Contracting officer may not ignore prior procurement history, government estimate, and other rel-
evant evidence in determining whether small business price received was in fact fair and reasona-
ble.


B-238402, Mas 23.1990                                                                     90-l CPD 495
Procurement
Competitive   Negotiation
n Contract awards
n w Administrative     discretion
n n H Cost/technical     tradeoffs
n n n H Cost savings
Award to lower-cost offeror receiving lower technical score was proper where agency reasonably
concluded that point scores overstated protester’s technical advantage and any actual advantage
did not justify the cost premium involved.


Procurement
Competitive    Negotiation
H Requests for proposals
H n Evaluation    criteria
n n n Cost/technical       tradeoffs
n n H H Weighting
Where solicitation indicates that cost will be evaluated but does not indicate its specific weight
relative to technical factors, it is presumed that cost and technical factors will be considered to be
approximately    equal in importance.


B-236603.2, May 24.1990
Procurement
Bid Protests
n GAO procedures
H n GAO decisions
n n n Reversal
n w n H Factual errors
Decision denying protest of source selection is reversed and the protest sustained where the factu-
al basis upon which earlier decision was based-that       protester’s excessive electrical work man-
hours component made up virtually the entire amount of the difference in price between it and
awardee-was     erroneous and where agency had no reasonable basis to select lower rated offeror
for award under the solicitation’s evaluation criteria in which technical was worth ‘75 percent and
cost only 25 percent.


Page 34                                                                                 Digests-May      1990
        .


l   Procurement
    Competitive     Negotiation
    n Contract awards
    n q Administrative   discretion
    q n W Cost/technical   tradeoffs
    B H W n Technical superiority
    Decision denying protest of source selection is reversed and the protest sustained where the factu-
    al basis upon which earlier decision was based-that       protester’s excessive electrical work man-
    hours component made up virtually the entire amount of the difference in price between it and
    awardee-was     erroneous and where agency had no reasonable basis to select lower rated offeror
    for award under the solicitation’s evaluation criteria in which technical was worth 75 percent and
    cost only 25 percent.

    B-238420, B-238420.2, May 24,199O                                                  90-l CPD 497
    Procurement
    Competitive Negotiation
    n Contract awards
    n n Administrative   discretion
    W W W Cost/technical   tradeoffs
    n W W H Technical superiority
    Award to higher-priced offeror is unobjectionable where technical considerations were more impor-
    tant than cost under the solicitation and agency reasonably concluded that technical superiority of
    awardee’s proposal was worth the additional cost.


    Procurement
    Competitive Negotiation
    n Offers
    n W Risks
    n n W Evaluation
    n H n H Technical acceptability
    Consideration of technical risk in evaluating proposals is unobjectionable since, although not speci-
    fied as an evaluation criterion in the solicitation, technical risk is reasonably related to the speci-
    fied technical evaluation criteria.


    B-239262, May 24,199O                                                              90-l CPD 498
    Procurement
    Bid Protests
    n GAO procedures
    n H Pending litigation
    q n n GAO review
    Procurement
    Contract      Management
    n Contract administration
    n n Default termination
    B W n Resolicitation
    n n n n GAO review
    The General Accounting Office has no authority to consider, let alone issue, stay of reprocurement
    solicitation pending outcome of protester’s appeal of default termination of original contract with
    the Armed Services Board of Contract Appeals.


    Page 35                                                                          Digests-May      1990
                                                                                                           l



B-239687, May 24,199O                                                             90-l CPD 499
Procurement
Sealed Bidding
n Bid guarantees
n n Responsiveness
q n n Sureties
n n q q Liability restrictions
Procurement
Sealed Bidding
n Bids
q n Bid guarantees
n q n Omission
A n q n Responsiveness
Bid properly may be rejected as nonresponsive where bidder fails to indicate          penal sum of bid
bond either as a percentage of the bid amount or as a fixed sum.


B-222413.2, May 25,199O                                                           90-l CPD 500
Procurement
Competitive    Negotiation
n Offers
n n Evaluation
n n q Options
n q q q Prices
Protest that agency was required to issue a new solicitation to test market before exercising an
option is denied where agency reasonably determined that option was the most advantageous offer
based upon informal price analysis, considering product availability and other factors.


B-236784.2, May 25,199O                                                           90-l CPD 501
Procurement
Bid Protests
II GAO procedures
n n GAO decisions
n W n Reconsideration
Request for reconsideration   that is based on arguments previously considered          and rejected is
denied since the requester has not furnished a legal or factual basis for reversing    the earlier deci-
sion.




Page 36                                                                        Digests-May        1990
         c

c

    B-238470, May 25,199O                                                              90-l CPD 502
    Procurement
    Bid Protests
    n GAO procedures
    n q Interested parties
    n n n Direct interest standards
    Procurement
    Competitive Negotiation
    n Competitive    advantage
    n n Non-prejudicial    allegation
    Protest alleging awardee was provided an undue competitive advantage because it had submitted
    unsolicited proposals which in part formed the basis for a competitive procurement is dismissed
    where the protester was fifth in line for award and is, therefore, not an interested party to protest.


    B-239630, May 25, 1990                                                             90-l CPD 503
    Procurement
    Bid Protests
    n GAO procedures
    n n Protest timeliness
    q n n lo-day rule
    n n n n Adverse agency actions
    Letter to contracting agency’s purchasing agent stating intent to protest but which does not state
    any specific basis for protest is not sufficient to constitute agency-level protest and a subsequent
    protest to the General Accounting Office 6 weeks after basis of protest was known is dismissed as
    untimely.


    B-236265.4, May 29,199O                                                            90-l CPD 504
    Procurement
    Bid Protests
    n GAO procedures
    n n GAO decisions
    n n n Reconsideration
    Requests for reconsideration    which merely disagree with the General Accounting Office’s initial
    decision without showing that the decision was based on error of fact or law do not provide any
    basis for modification or reversal.


    Procurement
    Competitive Negotiation
    n Discussion reopening
    H n ‘Propriety
    n n n Best/final  offers
    n n q n Corrective actions
    Agency reasonably provided offerors whose best and final offers (BAFO) had been found technical-
    ly acceptable an opportunity to submit new BAFOs in response to the General Accounting Office’s
    (GAO) remedial recommendation     to reopen discussions and obtain another round of BAFOs under
    a protest sustained because the agency conducted improper post-award discussions with the award-
    ee only. The agency was not *eq&ed        to conduct additional detailed discussions with offerors
    whose proposals were technically    acceptable in order to comply with GAO’s recommendation,
    which did not require that the agency entirely reconduct the procurement.

    Page 37                                                                         Digests-May       1990
                                                                                                .



B-236790.2, May 29,199O                                                           90-l CPD 505
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
q n n Reconsideration
Request for reconsideration    is denied where it is based upon information that was available, but
not submitted, during consideration of original protest and it otherwise does not establish the ex-
istence of error in prior decision.


B-238423, Mas 29,199O                                                              90-l CPD 506
Procurement
Sealed Bidding
q Bids
n n Responsiveness
q n n Terms
n n n n Deviation
Insertion of unsolicited part number in a bid, even if included merely for a bidder’s internal con-
trol purposes, qualifies bid, creating doubt whether the bidder is offering to comply with the solici-
tation specifications. The contracting officer properly rejected such a qualified bid where it did not
contain an express statement that the designated part conforms to all solicitation requirements,
and there was no data available to the contracting officer before bid opening which demonstrated
that the part specified was compliant.


Procurement
Sealed Bidding
n Qualified bids
n n Responsiveness
Insertion of unsolicited part number in a bid, even if included merely for a bidder’s internal con-
trol purposes, qualifies bid, creating doubt whether the bidder is offering to comply with the solici-
tation specifications. The contracting officer properly rejected such a qualified bid where it did not
contain an express statement that the designated part conforms to all solicitation requirements,
and there was no data available to the contracting officer before bid opening which demonstrated
that the part specified was compliant


B-238596, Marv 29.1990                                                             90-l CPD 507
Procurement
Competitive Negotiation
H Offers
n n Evaluation
n n n Personnel experience
Protest that evaluation factors in solicitation for loan servicing should have included prior experi-
ence as a separate factor is denied where prior experience was included under several evaluation
factors and the record shows that the agency did consider the protester’s prior experience in its
evaluation.




Page 38                                                                         Digests-May         1990
c
    Procurement
    Competitive      Negotiation
    q Offers


    Protest that agency did not give credit for an alleged reduction in cost in protester’s proposal is
    denied where the solicitation     basically required the protester to factor this reduction into the
    fixed-unit rate it submitted as its cost and the protester failed to do this. Furthermore, where the
    alleged reduction would not render the protester’s cost lower than the awardee’s cost, where cost
    was in any case less important than technical considerations and the awardee’s offer was techni-
    cally superior, failure to consider this reduction did not prejudice the award decision.


    Procurement
    Competitive Negotiation
    Is Requests for proposals




    Protest that agency improperly     extended the period contractors would be responsible for delin-
    quent accounts without providing notice to offerors and affording firms an opportunity       to revise
    offers is denied where the requirement      was modified in writing. the written modification     was
    given to offerors during discussions, and the evaluation of best and final offers was consistent with
    the revised terms.


    B-238276.2, May 30,199O                                                               90-l CPD 508
    Procurement
    Bid Protests
    1$1GAO procedures
    Ip W GAO decisions
    q H E!JReconsideration
    Request for reconsideration    is denied where protester merely reiterates     prior arguments and does
    not present factual or legal grounds warranting     reversal or modification    of an earlier dismissal of
    protest of agency’s affirmative responsibility determination.


    B-238505, May 30,199O                                                                 90-l CPD 509
    Procurement
    Competitive      Negotiation
    q Offers
               t realism
               valuation
                Administrative     discretion
    Where agency request for second best and final offer (BAFOI states that it is concerned about the
    realism of offerors’ prices and states that any changes to a proposal must be explained in detail by
    the offeror, agency properly considered unacceptable an unexplained price reduction and change
    in proposal’s pricing format in protester’s second BAFO.




    Page 39                                                                            Digests-May       1990
                                                                                                       l


B-236792.5. Mav 31.1990                                                          90-l CPD 510
Procurement
Bid Protests
n GAO procedures
W W Preparation     costs
Where a protest is dismissed as academic because procured item is no longer required, there is no
decision on the merits of the protest and therefore no basis for recovery of protest costs.


Procurement
Bid Protests
n Moot allegation
1 W GAO review
Protest was properly dismissed as academic where protested contract was terminated because un-
manned air vehicles solicited were no longer required; underlying protest became academic when
no award would be made under the solicitation.


B-237005.2, May 31, 1990***                                                      90-l CPD 511
Procurement
Bid Protests
H GAO procedures
n W GAO decisions
W H n Reconsideration
Procurement
Competitive    Negotiation
H Contract awards
II W Propriety
General Accounting Office denies request for reconsideration  of previous decision which upheld
award to low evaluated offeror, in absence of evidence that low evaluated offer would result in
other than the lowest ultimate cost to the government.


B-237727.2, May 31,199O                                                          90-l CPD 512
Procurement
Bid Protests
W GAO procedures
H H GAO decision ;
W n n Reconsideration
A protester who offers the same part as the awardee on a small purchase procurement, but at a
higher price, is not ~prejudiced where its protest is that the awardee misidentified the part in its
quote and the awardse’s quote appeared acceptable on its face and offered a product that met the
government’s require ments.




Page 40                                                                       Digests-May      1990
c

    B-237864.2, May 31,199O
    Procurement
    Bid Protests
    E GAO procedures
    E 81 GAO decisions
    W W S Reconsideration
    Decision denying a protest because the protester failed to present any support or specifics to sub-
    stantiate its allegation that the firm represented by an offeror as the manufacturer      of the items to
    be supplied would not be the manufacturer        and the items may be of foreign origin is affirmed
    where the protester in its request for reconsideration still offers no support for its allegations.


    B-238411.2, May 31,199O                                                              90-l CPD 513
    Procurement
    Bid Protests
    n GAO procedures
    n W Protest timeliness
    H W H lo-day rule
    Procurement
    Bid Protests
    q GAO procedures
    q 0 Protest timeliness
    n W W Good cause exemptions
    n W W n Applicability
    When a protester has sufficient information    upon which to base a protest, it must file a protest
    within 10 working days and not wait until it obtains all of the information     to which it believes it
    is entitled under the Freedom of Information    Act; therefore, the agency’s failure to promptly pro-
    vide the information  sought does not constitute good cause under the Bid Protest Regulations to
    warrant consideration of an untimely protest.


    B-238670, Mas 31.1990                                                                90-l CPD 514
    Procurement
    Sealed Bidding
    n Bids
    H W Responsiveness
    W E W Terms
    E W W q Deviation
    Bid that modified requirements of an invitation for bids by adding an additional sub-line item is
    nonresponsive since it contained a material deviation from the terms of the invitation    for bids
    which imposed conditions resulting in a competitive advantage to that bidder.




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B-238703. B-238704. Mav 31.1990                                                  90-l CPD 515
Procurement
Sealed Bidding
0 Invitations    for bids
q H Cancellation
H W q Justification
W W W W Price reasonableness
Agency’s cancellation of solicitation after bid opening on the basis that all otherwise acceptable
bids are unreasonable in price is proper where the low responsive bid exceeds the government esti-
mate by a significant amount.


Procurement
Sealed Bidding
n Invitations  for bids
n E Cancellation
E W W Resolicitation
n n n n Requests for proposals
Conversion of invitation  for bids to a negotiated procurement after rejection of all otherwise ac-
ceptable bids for price unreasonableness is proper where the contracting officer follows the proce-
dures set forth in the Federal Acquisition Regulation at section 15.103, and preserves the integrity
of the competitive process.


B-238712.2, May 31, 1990                                                        90-l CPD 526
Procurement
Contract Management
W Contract administration
n W GAO review
Question relating to fulfillment of payment and performance bond requirements, which are imple-
mented after contract award, is a matter of contract administration not cognizable by the General
Accounting Office under ita Bid Protest Regulations,


B-239846, May 31.1990                                                           90-P CPD 527
Procurement
Sealed Bidding
q Bids
WW Responsivness
H W q Signatures
E q H W Omission
Agency’s determination  that bid was nonresponsive is proper where bid was signed with a rubber-
stamp signature but was not accompanied by any evidence showing that, before bid opening,
bidder had authorized the use of a rubber-stamp signature.




Page 42                                                                       Digests-May      1990