oversight

Digests of Decisions of the Comptroller General of the United States, Vol. II, No. 1

Published by the Government Accountability Office on 1990-10-01.

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

               S   *   *a




     -~~~~~~~~~a            a




_E                              _
Current GAO Officials

Comptroller General of the United States
Charles A. Bowsher

Deputy Comptroller General of the United States
Vacant

Special Assistant to the Comptroller General
Milton J. Socolar

General Counsel
James F. Hinchman
Deputy General Counsel
Vacant




Page i
Contents


Preface                                 iii
Table of Decision Numbers               iv
Digests
  Appropriations/Financial Management    1
  Civilian Personnel                     5
  Military Personnel                    10
  Miscellaneous Topics                  13
  Procurement                           14




Page ii
Preface


This publication is one in a series of monthly pamphlets entitled "Digests of
Decisions of the Comptroller General of the United States" which have been
published since the establishment of the General Accounting Office by the
Budget and Accounting Act, 1921. A disbursing or certifying official or the head
of an agency may request a decision from the Comptroller General pursuant to
31 U.S. Code § 3529 (formerly 31 U.S.C. §§ 74 and 82d). Decisions concerning
claims are issued in accordance with 31 U.S. Code § 3702 (formerly 31 U.S.C. §
71). Decisions on the validity of contract awards are rendered pursuant to the
Competition in Contracting Act, Pub. 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

                                                Page                                        Page
B-226269, October 3, 1990                        13     B-238927.2, et al., October 26,
B-226395.4, October 10, 1990                     19     1990                                 41
B-230380, October 23, 1990***                    11     B-239007.3, October 31, 1990         49
B-230865, October 17, 1990                       11     B-239123.3, October 10, 1990         19
B-231370, October 18, 1990***                    32     B-239225, October 12, 1990            7
B-234217, October 25, 1990                       40     B-239231.10, October 24, 1990        38
B-235978, October 26, 1990                        8     B-239341, October 5, 1990             6
B-236040, October 9, 1990***                      2     B-239343, October 11, 1990            6
B-236232, October 25, 1990                       12     B-239490.2, October 30, 1990         45
B-236232, October 25, 1990                        3     B-239556, October 12, 1990            2
B-236834.6, B-236834.7, October                         B-239615, October 11, 1990            7
30, 1990                                         45     B-239660, October 17, 1990            8
B-237107.3, October 24, 1990                     38     B-239671.4, October 10, 1990         19
B-237624, October 17, 1990                        7     B-239672.3, October 30, 1990         46
B-237783, October 1, 1990***                     10     B-239724, October 11, 1990            2
B-238300, October 4, 1990                         5     B-239754, October 30, 1990            9
B-238419, October 9, 1990***                     13     B-239790, October 1, 1990            14
B-238452.3, October 22, 1990                     37     B-239795.2, October 12, 1990         21
B-238463, October 15, 1990***                    10     B-239830, October 2, 1990            16
B-238581, October 31, 1990                        3     B-239837, B-239839, October 3,
B-238601, October 4, 1990                         5     1990                                 16
B-238669.2, October 1, 1990                      14     B-239842.3, October 17, 1990         30
B-238766, October 18, 1990                        8     B-239849, et al., October 2, 1990    16
B-238768.2, October 19, 1990                     34     B-239880, October 4, 1990'           17
B-238790.4, October 16, 1990                     25     B-239892, October 2, 1990            16
B-238857.3, October 17, 1990                     29     B-239893, B-239894, October 1,
B-238872, October 19, 1990                       34     1990                                 14
                                                        B-239905, October 9, 1990            18
                                                        B-239912.5, October 3, 1990          17


 -(notes published decisions) Cite published decisions as 69 Comp. Gen.-



Page iv
Table of Decision Numbers




                                    Page                                          Page
B-239913, October 10, 1990           20    B-240128,   October 16, 1990            26
B-239916, October 4, 1990            17    B-240136,   October 26, 1990            42
B-239917, October 10, 1990           20    B-240144,   October 26, 1990            42
B-239932, October 10, 1990***        20    B-240148,   October 19, 1990***         36
B-239938, October 12, 1990           21    B-240156,   October 16, 1990***         27
B-239942, October 12, 1990           22    B-240160,   et al., October 30, 1990    46
B-239948, October 12, 1990           22    B-240173,   October 16, 1990            27
B-239952, October 12, 1990           22    B-240180,   October 30, 1990            47
B-239973, B-239973.2, October 17,          B-240186,   October 25, 1990            40
1990                                 30    B-240187,   October 26, 1990            43
B-239973.3, B-230998, October 1,           B-240203,   October 31, 1990            51
                                           B-240204, October 18,   1990            33
B-239997, October 12, 1990           23    B-240226, October 26,   1990            43
B-240011, October 17, 1990***        30    B-240239, October 29,   1990             9
B-240012, October 16, 1990           25    B-240244, October 26,   1990            44
B-240016, October 19, 1990           35    B-240252, October 26,   1990            44
B-240029.2, et al., October 31,            B-240271, October 15,   1990             3
1990                                 50B-421Ocoe15903
B-240030,   October 17, 1990         31    B-240274, B-230275, October 15,
B-240034    October 17 1990          31      90                                    24
B-240034,   October 17, 1990               B-240289, October 18, 1990              33
B-240045,   October 22, 1990         37    B-240301, October 30, 1990              47
B-240052, October 19, 1990           35    B-240323.2, October 19, 1990            36
B-240059, B-240059.2, October 18,    32    B-240327, October 31, 1990              51
B-240067,   October 12,1990          23    B-240339, October 12,1990               10
B-240071,   October 16, 1990         26    B-240360, October 18, 1990              34
B-240105,   October 17, 1990         31    B-240443.3, October 25, 1990            40
B-240114,   October 24, 1990         39    B-240556, October 9, 1990                6
B-240119,   October 16, 1990         26    B-240671, October 5, 1990***             1




Page v
Table of Decision Numbers




                                    Page                                     Page
B-240748, October 24, 1990           39    B-241161, October 9, 1990          18
B-240768.2, October 16, 1990         28    B-241168, October 18, 1990         34
B-240780, October 17, 1990           11    B-241185, October 1, 1990          15
B-240798, October 30, 1990           48    B-241257, October 3, 1990          17
B-240856, B-240857, October 25,            B-241295, B-241300, October 19,
1990                                 40    1990                               36
B-240856.2, October 31, 1990         52    B-241327.2, October 26, 1990       44
B-240873, B-240873.2, October 30,          B-241333, October 30, 1990         49
1990                                 49    B-241351.2, October 26, 1990       44
B-240970.2, October 16, 1990         29    B-241375, October 25, 1990         41
B-240980.2, October 17, 1990***      31    B-241390, October 25, 1990         41
B-240994, October 15, 1990            3    B-241394, October 16, 1990         29
B-241005, October 11, 1990           21    B-241416, October 22, 1990         37
B-241031.3, October 31, 1990         52    B-241465, October 15, 1990         24
B-241036.2, October 22, 1990         37    B-241536, October 31, 1990         52
B-241037, October 12, 1990           24    B-241567, October 26, 1990         45
B-241038, October 24, 1990           39    B-241660, October 31, 1990         53
B-241040, October 12, 1990           24    B-241661, October 25, 1990         41
B-241076.2, October 16, 1990         29    B-241683, October 31, 1990         53
B-241085, October 4, 1990***          1    B-241687, October 24, 1990         39




Page vi
Appropriations/ Financial
Management

B-241085, October 4, 1990***
Appropriations/Financial Management
Accountable Officers
* Disbursing officers
* * Substitute checks
* * * Issuance
* MMMAuthority
The Navy has authority to waive its requirement to obtain written statements of nonreceipt from
check payees before issuing successor checks. The delay in waiting for such statements will likely
cause financial hardship to allotment payees. Therefore, under the circumstances in this case, a
Navy Disbursing Officer's issuance of successor checks without first obtaining signed statement
from original checks payees is not evidence of a lack of due care.

Appropriations/Financial Management
Accountable Officers
* Disbursing officers
* * Relief
* * * Illegal/improper payments
* MMM Substitute checks
When an accountable officer is issuing 4,671 replacement checks because the original checks were
lost in a bulk shipment, it is premature to request relief, in advance, for any loss due to payment
of both original and substitute checks. First, we cannot grant relief until a loss occurs. Second, any
loss might be recovered by collection action or through a claim under the Government Losses in
Shipment Act. A loss must occur and the factual record must be complete before we will address
relieving liability.

B-240671, October 5, 1990***
Appropriations/Financial Management
Accountable Officers
* Cashiers
* * Relief
* * * Physical losses
• MRR    Theft
Relief for the physical loss of funds due to theft is denied imprest fund cashier under 31 U.S.C.
§ 3527(a) (1988). The cashier failed to follow regulations requiring that the safe combination and
key be stored in a secure manner, and thus was negligent. The evidence does not support a deter-
mination that the cashier's negligence did not contribute to the theft.


Page 1                                                                     Digests-October 1990
B-236040, October 9, 1990***
Appropriations/Financial Management
Appropriation Availability
* Purpose availability
* * Necessary expenses rule
E * * Awards/honoraria
Employees attending regional awards ceremony sponsored by the local Federal Executive Board
may be reimbursed the cost of the luncheon and related expenses under the Incentive Awards Act.

Appropriations/Financial Management
Appropriation Availability
* Purpose availability
* * Specific purpose restrictions
* * * Meals
Employees attending regional awards ceremony sponsored by the local Federal Executive Board
may be reimbursed the cost of the luncheon and related expenses under the Incentive Awards Act.

B-239724, October 11, 1990
Appropriations/Financial Management
Accountable Officers
* Cashiers
* * Relief
* * * Physical losses
* M M R Counterfeit bills
Cashier is relieved of liability for physical loss of $1,000 due to his acceptance of ten counterfeit
$100 notes. Loss occurred without fault or negligence of the accountable officer. However, GAO
cannot authorize charging the appropriate account with the loss since an accountable officer in
Beirut, Lebanon, is potentially liable for the loss and the required administrative findings have
not been submitted.

B-239556, October 12, 1990
Appropriations/Financial Management
Judgment Payments
* Permanent/indefinite appropriation
* * Availability
Consistent with 44 Comp. Gen. 312 (1964), in order to avoid defeating the purposes to be served by
such awards, payment may not be made from the Judgment Fund, 31 U.S.C. § 1304 (1988), for (a)
criminal contempt fines intended to punish defiance of the courts and vindicate their authority, or
(b) civil contempt fines intended to compel future compliance with court orders. However, pay-
ment from that fund is not precluded for (c) civil contempt awards intended to compensate plain-
tiffs for losses arising from defendants' failure to comply with court orders.

Appropriations/Financial Management
Judgment Payments
* Attorney fees
The Judgment Fund, 31 U.S.C. § 1304 (1988), may be used to pay judicial awards of attorney fees
and costs in civil contempt proceedings because these awards, unlike those which were the subject
of 44 Comp. Gen. 312, 314 (1964), are compensative in nature, and payment from that fund would
not defeat the court's purposes in making such awards.

Page 2                                                                    Digests-October 1990
B-240271, October 15, 1990
Appropriations/Financial Management
Appropriation Availability
* Purpose availability
* * Specific purpose restrictions
* *M Personal expenses/furnishings
The Internal Revenue Service may use appropriated funds to purchase a motorized wheelchair for
a disabled employee. Our Office would agree with a determination that the powered wheelchair is
needed to perform employee's official duties and that such an action would constitute a "reasona-
ble accommodation" in accordance with standards set forth in 29 C.F.R. 1613.704, and with the
understanding that the wheelchair would be the property of the United States Government.

B-240994, October 15, 1990
Appropriations/Financial Management
Claims Against Government
* Unauthorized contracts
* * Quantum meruit/valebant doctrine
An unratifiable claim by a private security company for reimbursement for temporary, emergency
security guard services obtained without completion of proper procurement procedures may be
paid by the United States Marshals Service under the principles of quantum meruit.

B-236232, October 25, 1990
Appropriations/Financial Management
Appropriation Availability
* Purpose availability
* * Specific purpose restrictions
* * E Telephones
Reimbursement of a member's expenses for payment of monthly service charges on a dedicated
telephone line over which a Navy-supplied fax machine operated is not prohibited by 31 U.S.C.
§ 1348(a)(1), even though the machine was installed in the member's civilian business office, since
the statute only precludes government payment for telephone service from a private residence.

B-238581, October 31, 1990
Appropriations/Financial Management
Obligation
* Payments
* * Termination costs
* * * Contingent liability
In agreeing to a "special termination" clause, the Air Force effected an obligation of $13.5 million.
The "special termination" liability is not a contingent liability, as the Air Force argues; the Air
Force committed itself to pay $13.5 million in termination costs without having committed addi-
tional funds to continue operations.




Page 3                                                                    Digests-October 1990
Appropriations/Financial Management
Obligation
* Congressional notification
The Air Force's January 24 letter to the Congress indicating its plans to use $418 million for the
Core program satisfies the notification requirements of section 9071 of Pub. L. No. 101-165, 103
Stat. 1112, 1145 (1989).

Appropriations/Financial Management
Obligation
* Expenditure recording
* * Termination costs
* * * Contingent liability
The Air Force, in accordance with 31 U.S.C. § 1501, should have recorded $13.5 million in "special
termination" liability as an obligation on January 31.




Page 4                                                                  Digests-October 1990
Civilian Personnel

B-238300, October 4, 1990
Civilian Personnel
Relocation
* Temporary quarters
* * Actual subsistence expenses
* * * Eligibility
*E M E Extension
A transferred employee, while occupying temporary quarters, contracted to purchase a townhouse
to be constructed which was not scheduled for completion until several months beyond the initial
60-day period granted by the agency for temporary quarters occupancy. A low appraisal caused a
further delay. The agency's policy guideline authorizes an extension beyond 60 days only if the
delay in construction or other circumstances are short-term and occur during the initial 60 days of
temporary quarters occupancy. Since that was not the case here, the agency's denial of an exten-
sion beyond 60 days is sustained.

B-238601, October 4, 1990
Civilian Personnel
Relocation
* Temporary quarters
* * Actual subsistence expenses
* * * Eligibility
* MEM Extension
Employee requested an extension of temporary quarters subsistence expenses of 54 days beyond
the initial 60-day period authorized by the agency. The agency allowed an additional 30 days
based upon the employee's diligent efforts to successfully execute a contract for permanent hous-
ing without the benefit of a househunting trip, and the agency's knowledge of excessive housing
prices in the New York City, New York, area, but denied reimbursement for the remaining 24
days requested. Based on the facts of record, the denial of the final 24 days of temporary quarters
occupancy was not arbitrary or an abuse of discretion. The employee is not entitled to reimburse-
ment of the expenses incurred during the remaining 24 days of temporary quarters occupancy.




Page 5                                                                   Digests-October 1990
B-239341, October 5, 1990
Civilian Personnel
Relocation
* Actual expenses
* * Eligibility
* * * Distance determination
Civilian Personnel
Relocation
* Household goods
* * Shipment
* * * Reimbursement
* R-U Eligibility
This summary letter decision addresses well established rules which have been discussed in previ-
ous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to
decisions indexed under the above listed index entry.

B-240556, October 9, 1990
Civilian Personnel
Compensation
* Overpayments
* * Error detection
* * * Debt collection
* E K E Waiver
Subsequent to an employee's transfer, his salary was erroneously continued and he received two
payments with accompanying Leave and Earnings Statements (LES) from his former agency for a
time period he was employed by and received pay from his new agency. The employee indicated
that someone told him he might be entitled to severance pay and he therefore assumed the pay-
ments were such pay. However, the continued receipt of regular salary payments and the LES'
should have alerted him to the strong possibility that the payments were erroneous. Since he took
no corrective action, he must be considered at least partially at fault, and waiver of his debt is
denied.

B-239343, October 11, 1990
Civilian Personnel
Relocation
* Residence transaction expenses
* * Loan origination fees
* * * Reimbursement
Transferred employee purchased a residence at new duty station and has furnished a statement by
the lender itemizing the charges covered by the claimed 2 percent loan origination fee, along with
a statement from the lender that the administrative charges do not include mortgage points or
interest. The additional claimed 1 percent loan origination fee (1 percent was previously paid by
agency) charged by the lender may not be paid since the listing does not represent clear and con-
vincing evidence as to the identity of the expenses actually incurred by the lender in arriving at
the 2 percent ($3,200) loan origination fee. Further, the statement by the lender that the 2 percent
loan origination fee represents the rate customarily charged in the locality of the residence, stand-
ing alone, is insufficient to establish the accuracy of that rate.

Page 6                                                                    Digests-October 1990
B-239615, October 11, 1990
Civilian Personnel
Travel
* Temporary duty
* * Lodging
* * * Leases
An association of extended-stay lodging facilities requested the General Accounting Office to inves-
tigate a practice in which certain agencies lease quarters for use by their employees while on tem-
porary duty. We note that generally agencies may lease rooms under such circumstances provided
that appropriated funds are not used in excess of the maximum per diem rate or actual expenses
allowed for the particular area. We advise the association to consider GAO's Bid Protest Proce-
dures for questions relating to procurement matters, and GAO's general claims procedures for
questions relating to employees' travel claims.

B-239225, October 12, 1990
Civilian Personnel
Travel
* Permanent duty stations
* * Actual subsistence expenses
* * * Prohibition
Civilian Personnel
Travel
* Temporary duty
* * Per diem
* * * Eligibility
An employee who incident to moving his family residence to a training sit forfeits his right to per
diem at the site is entitled to transportation costs and per diem when required to travel on tempo-
rary duty to the location which would otherwise be his official duty station. For the purposes of
section 301-7.4(a) of the Federal Travel Regulations, which prohibits the payment of per diem at a
permanent duty station, the training site may be considered the employee's duty station.

B-237624, October 17, 1990
Civilian Personnel
Compensation
* Retroactive compensation
* * Interest
Director, Department of Veterans Affairs Domiciliary, White City, Oregon, is advised that we
agree with the Department's General Counsel's conclusion that its employees are entitled to inter-
est on EDP claims under the Back Pay Act, 5 U.S.C. § 5596(b) (1988). There is no authority outside
of the Back Pay Act for retroactive payment of claims. Thus, the employees would be entitled to
interest under the Act notwithstanding the fact that they signed "administrative settlements"
which did not provide for such payment.




Page 7                                                                    Digests-October 1990
B-239660, October 17, 1990
Civilian Personnel
Compensation
* Overpayments
* * Error detection
* * * Debt collection
* H U E Waiver
Civilian Personnel
Leaves Of Absence
* Lump-sum payments
* * Reinstatement
* * * Retroactive compensation
*.       RSet-off
Claims Group settlement denying waiver is sustained on the basis of the net indebtedness rule
since deduction of lump-sum payments from an employee's backpay award did not result in a net
indebtedness to the government.

B-238766, October 18, 1990
Civilian Personnel
Compensation
* Payroll deductions
* * Life insurance
*ON Insurance premiums
 * fl E Underdeductions
 Upon appointment, employee signed a life insurance election form for Federal Employees' Group
 Life Insurance (FEGLI) coverage. Deductions for FEGLI premiums were taken from her salary for
 over 1 year and were discontinued due to administrative error. Since we do not have the employ-
 ee's leave and earnings statements showing the deductions for FEGLI premiums and the subse-
 quent discontinuance of such deductions from her salary, we cannot determine whether a reasona-
 ble and prudent person would have made inquiry as to the reason for the discontinuance of the
 deductions, and therefore whether the employee's failure to do so constituted fault on her part.
 The case is remanded to the agency to determine whether the employee was at fault for not
 making inquiry.

B-235978, October 26, 1990
Civilian Personnel
Relocation
* Residence transaction expenses
* * Attorney fees
* * * Contract cancellation
Civilian Personnel
Relocation
* Residence transaction expenses
E * Reimbursement
* * * Contract cancellation
* --- Personnel death
A transferred employee who had contracted to sell his residence at his old duty station and to
purchase a residence at his new duty station died unexpectedly before either transaction was com-
pleted. His widow incurred expenses of $20,500 to obtain releases from the contracts of sale and

Page 8                                                                 Digests-October 1990
purchase, plus an attorney's fee. She may be reimbursed her expenses, including a reasonable at-
torney's fee, not to exceed the amount that would have been reimbursed had she completed the
relocation to her deceased husband's new duty station.

B-240239, October 29, 1990
Civilian Personnel
Compensation
* Retroactive compensation
* * Eligibility
Although at the direction of their unit chief FBI firearms instructors performed duties of a posi-
tion classified at a higher grade than the position they occupied, no right to increased pay exists.
A federal employee is entitled only to the salary of his appointed position even though higher level
duties were performed. Therefore, the employees are not entitled to backpay for performing the
higher-graded duties.

B-239754, October 30, 1990
Civilian Personnel
Compensation
* Compensation retention
ME Administrative Regulations
An employee, who exercised his reemployment rights under 10 U.S.C. § 1586 (1988) and returned
from overseas to his prior place of employment, is not entitled to have his basic pay recomputed to
include the 10 percent night differential he received prior to his overseas assignment. Since his
position was abolished in a reorganization during his overseas tour, his entitlement upon his
return was properly determined under grade and pay retention regulations as if he had never left
his position. Those regulations exclude night differential from basic pay.




Page 9                                                                    Digests-October 1990
Military Personnel

B-237783, October 1, 1990***
Military Personnel
Pay
* Set-off
* * Military leave
Where a statute specifically refers by section number to another statute, they are interpreted as of
the time of adoption, without subsequent amendments, in the absence of a contrary legislative
intent. Therefore, under the current code, the salary offset provision in 5 U.S.C. § 5519 (1988) ap-
plies to amounts received by reservists and national guardsmen while on military leave to enforce
the law under 5 U.S.C. § 6323(b) (1988), but salary offset does not apply to leave under 5 U.S.C.
§ 6323(c) (1988) for District of Columbia National Guardsmen ordered or authorized to serve in pa-
rades or encampments even though section 5519 literally refers to section 6323(c).

B-240339, October 12, 1990
Military Personnel
Pay
* Overpayments
* * Error detection
E * E Debt collection
* D-E Waiver
A former service member's debt due to the erroneous issuance of an allotment check to his spouse
subsequent to his separation may not be waived where the former member, apparently living with
his spouse at that time, should have known of the payment and that it was erroneous but failed to
notify appropriate officials.

B-238463, October 15, 1990***
Military Personnel
Pay
* Survivor benefits
* * Annuities
* * * Eligibility
* D D D Illegitimate children
Claims for Survivor Benefit Plan annuities submitted by the mothers of illegitimate children of
two deceased retired service members are denied because neither child lived with her father in a
regular parent-child relationship, as required by 10 U.S.C. § 1447(5).




Page 10                                                                   Digests-October 1990
B-230865, October 17, 1990
Military Personnel
Pay
* Retirement pay
E * Judgment debtors
* * * Debt collection
*      ED Set-off
Authority in section 124 of Public Law No. 97-276 for collection of judgment debt by administra-
tive offset from current pay of indebted federal employees does not permit offset of judgment debt
from the monthly retired pay of members of the armed forces. Such collection by offset instead
must be effected pursuant to the authority and procedures in 5 U.S.C. § 5514.

Military Personnel
Pay
* Retirement pay
E * Judgment debtors
E * E Debt collection
* UN M Set-off
Amount set off from military retired pay pursuant to the apparent authority of section 124 of
Public Law No. 97-276 toward satisfaction of judgment debt of retired service member need not be
refunded based on otherwise unrelated court decision, issued after offset was initiated, that section
124 generally does not apply to military personnel, since authority for offset clearly existed in an-
other statute, 5 U.S.C. § 5514.

B-240780, October 17, 1990
Military Personnel
Pay
* Survivor benefits
* * Annuities
* * * Set-off
E * * * Social security
Offset of amount from annuity payable under the Survivor Benefit Plan, 10 U.S.C. § 1447 et seq.
representing Social Security payable to a widow at age 62 must be calculated on the basis of wages
attributable to military service only, and a formula used to calculate wages attributable to the
military service may not include wages from non-military employment.

B-230380, October 23, 1990***
Military Personnel
Travel
* Bonuses
E * Acceptance
E * E Propriety
*- -E Dependents
Dependent students of a military member may retain nontransferable travel certificates received
from an airline as a result of a 24-hour flight delay. General rule that discount coupons and other
benefits received in the course of official travel are the property of the government does not apply
in the case of benefits received by dependents of government employees or military members
whose travel is paid for by the government but who are not eligible for per diem payments.

Page 11                                                                   Digests-October 1990
B-236232, October 25, 1990
Military Personnel
Pay
* Pay restrictions
* * Off-site work
*ME Utility services
* E K E Reimbursement
Reimbursement of a member's expenses for payment of monthly service charges on a dedicated
telephone line over which a Navy-supplied fax machine operated is not prohibited by 31 U.S.C.
§ 1348(a)(1), even though the machine was installed in the member's civilian business office, since
the statute only precludes government payment for telephone service from a private residence.




Page 12                                                                  Digests-October 1990
Miscellaneous Topics

B-226269, October 3, 1990
Miscellaneous Topics
Agriculture
* Agricultural programs
* * Exports
* * * Conflicts of interest
The Foreign Agricultural Service's conflict of interest regulations dealing with the activities of
participants in the foreign market development programs, do not prohibit an association which is
acting on behalf of and which is a member of a cooperator-association, from engaging in commer-
cial export-related activities of the same commodity through a wholly owned subsidiary.

B-238419, October 9, 1990***
Miscellaneous Topics
Environment/Energy/Natural Resources
* Regulatory agencies
E * Authority
* * * Civil penalties
* EKE Mitigation
The Nuclear Regulatory Commission (NRC) lacks authority to permit licensees who violate NRC
requirements to fund nuclear safety research projects in lieu of paying monetary civil penalties.
See 42 U.S.C. § 2282(a).




Page 13                                                                 Digests-October 1990
Procurement

B-238669.2, October 1, 1990                                                     90-2 CPD 260
Procurement
Competitive Negotiation
* Contract awards
* * Administrative discretion
* * * Cost/technical tradeoffs
* H U E Technical superiority
Agency reasonably selected technically superior, higher priced proposal for X-ray scanner mainte-
nance where agency found awardee's proposed repair personnel and parts accessibility superior to
protester's.

B-239790, October 1, 1990                                                       90-2 CPD 261
Procurement
Competitive Negotiation
* Offers
* * Options
* * * Price disclosure
Agency disclosure of incumbent contractor's option unit prices for freezer storage services in a so-
licitation to determine whether it is most advantageous to the government to exercise an option
was not improper even though these prices were submitted in a restricted cost proposal since the
prices, incorporated in the contract, were not shown to be confidential, proprietary data.

B-239893, B-239894, October 1, 1990                                             90-2 CPD 262
Procurement
Socio-Economic Policies
* Small business 8(a) subcontracting
E*Use
* * * Administrative discretion
A challenge to the placement of procurements under the Small Business Administration's 8(a) pro-
gram based on alleged bad faith on the part of the contracting agency will be upheld only if the
facts indicate that the government actions complained of were improperly motivated.

Procurement
Socio-Economic Policies
* Small business 8(a) subcontracting
   U Use
* * * Administrative discretion
The Small Business Administration was not required to conduct an adverse impact analysis before
accepting proposed procurements for 8(a) awards where requirements were previously accepted for
the 8(a) program and would continue to be performed by 8(a) firms within the 8(a) program.

Page 14                                                                   Digests-October 1990
Procurement
Socio-Economic Policies
* Small businesses 8(a) subcontracting
*E Multiple/aggregate awards
* * * Resolicitation
Contracting agency which previously included multiple requirements under a single 8(a) contract
may subsequently break out these same requirements for separate 8(a) firms to perform if a valid
reason exists to do so.

B-239973.3, B-230998, October 1, 1990                                          90-2 CPD 263
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
  NEE 10-day rule
*UN M Adverse agency actions
Procurement
Specifications
* Minimum needs standards
* * Competitive restrictions
* * E Shipment modes
Protests to the General Accounting Office filed more than 10 working days after notice of initial
adverse agency action on protester's agency-level protests are untimely.

B-241185, October 1, 1990                                                      90-2 CPD 264
Procurement
Sealed Bidding
* Bids
E * Responsiveness
* * * Terms
* N * E Deviation
Procuring agency properly rejected protester's bid as nonresponsive where the protester's state-
ment in its bid that the solicitation's required performance schedule was "impossible" created un-
certainty as to whether the bidder intended to comply with the solicitation's completion schedule.

Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* U E Apparent solicitation improprieties
Protest allegation that the solicitation's required performance schedule is impossible concerns an
apparent solicitation impropriety which was untimely protested after bid opening.




Page 15                                                                 Digests-October 1990
B-239830, October 2, 1990                                                         90-2 CPD 265
Procurement
Sealed Bidding
* Bid guarantees
* * Sureties
* * * Acceptability
Contracting officer's rejection of individual sureties as unacceptable was reasonable where at-
tempts to verify the statement of assets of each surety were unsuccessful and certificates of suffi-
ciency, contained in each surety's affidavit of Individual Surety were questionable, casting further
doubt on the accuracy of the information provided by the sureties.

B-239849, et al., October 2, 1990                                                 90-2 CPD 266
Procurement
Socio-Economic Policies
* Small business set-asides
E 0Use
* * * Justification
Agency determination that procurements of beef for commissary stores should not be set aside ex-
clusively for small business participation was reasonable where contracting officer did not have a
reasonable expectation of receiving offers from two responsible small business concerns at reasona-
ble prices because the solicitations contain requirements for multiple weekly deliveries to remote
locations in Hawaii, for 24-hour product replacement and for local representatives, requirements
which render performance cost prohibitive for firms without pre-existing large distribution sys-
tems in Hawaii.

B-239892, October 2, 1990                                                         90-2 CPD 267
Procurement
Competitive Negotiation
* Offers
* * Evaluation errors
* * * Allegation substantiation
Protest that agency failed to evaluate awardee's reduction in level of manning from that proposed
is denied where there is no evidence that awardee misrepresented in its proposal its intended level
of manning and the record indicates that reduction to a level no less than that proposed by pro-
tester (which agency evaluated as acceptable) would not have materially altered the evaluation of
the awardee's proposal.

B-239837, B-239839, October 3, 1990                                               90-2 CPD 268
Procurement
Contractor Qualification
* Approved sources
* * Alternatives
* * * First-article testing
Protest is sustained where agency refused to consider qualifying the protester as an approved
source for aircraft fuel cells on the basis of the firm having supplied cells for similar aircraft in
the past in lieu of passing a 300-hour flight test, because the record indicates that qualification by
similarity may have been used in other cases and agency has offered no rational explanation for
its decision to forego such a procedure here.

Page 16                                                                    Digests-October 1990
B-239912.5, October 3, 1990                                                      90-2 CPD 269
Procurement
Bid Protests
* GAO procedures
* * GAO decisions
E E* Reconsideration
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* * * Apparent solicitation improprieties
Protest against a geographic restriction is untimely filed after bid opening, where that restriction
is apparent from the face of the solicitation.

B-241257, October 3, 1990                                                        90-2 CPD 270
Procurement
Sealed Bidding
* Bid guarantees
* * Responsiveness
* * * Signatures
* H U E Sureties
The validity of a bid bond that does not include the signature of the surety's attorney-in-fact is
sufficiently questionable to warrant rejection of the bid as nonresponsive.

B-239880, October 4, 1990***                                                     90-2 CPD 271
Procurement
Competitive Negotiation
* Requests for proposals
* * Competition rights
* * * Contractors
*...-     Exclusion
Protest by: incumbent contractor challenging its exclusion from a limited competition for an inter-
im contract .for waste collection and disposal services is sustained where contracting agency failed
to obtain maximum practicable competition by not inviting protester to respond to solicitation on
the basis that the -solicitation required submission of supporting cost data with proposals and pro-
tester had been unwilling to provide such data when offered an extension to its then-current con-
tract to cover these services. The agency's exclusion of the contractor on this basis is unreasonable
since such data would not have been required if adequate price competition were achieved.

B-239916, October 4, 1990                                                        90-2 CPD 272
Procurement
Small Purchase Method
* Quotations
* * Contract awards
* * * Cost/technical tradeoffs
L L L L Technical superiority
Award to higher priced, higher rated offeror is proper where awardee's higher combined
technical/price score reasonably reflected its superiority with respect to the demonstrated prior

Page 17                                                                   Digests-October 1990
performance of equipment to be used for state-of-the-art research, the single most significant eval-
uation criterion.

B-239905, October 9, 1990                                                        90-2 CPD 273
Procurement
Contractor Qualification
* Approved sources
* * Pre-qualification
* * * Justification
Protest that pre-award source approval was not required and thus that agency improperly rejected
protester's proposal because protester was not an approved source is denied where the solicitation
clearly contemplates that the award would be made to an approved source.

Procurement
Noncompetitive Negotiation
* Use
* * Justification
* * * Urgent needs
Protest that agency improperly rejected protester's proposal because protester was not an ap-
proved source is denied where the agency's needs became urgent and the agency reasonably deter-
mined that it could not delay the procurement until the protester received source approval.

B-241161, October 9, 1990                                                        90-2 CPD 274
Procurement
Sealed Bidding
* Bids
* * Responsiveness
* * * Acceptance time periods
* R A R Deviation
Where a bid offers a minimum bid acceptance period of 10 days in response to a sealed bid solicita-
tion requiring 60 days, the bid is nonresponsive and may not be corrected after bid opening, since
the minimum bid acceptance period is a material requirement of the solicitation which must be
complied with at bid opening.

Procurement
Sealed Bidding
* Bids
* * Clerical errors
* * * Error correction
* HUE Propriety
A nonresponsive bid must be rejected and may not be changed or corrected based on explanations
offered by the bidder after bid opening; the importance of maintaining the integrity of the com-
petitive bidding system outweighs the possibility that the government might realize monetary sav-
ings if a material deficiency in a bid is corrected or waived.




Page 18                                                                   Digests-October 1990
B-226395.4, October 10, 1990                                                     90-2 CPD 275
Procurement
Contract Management
* Contract modification
* * Cardinal change doctrine
* * * Criteria
* *E E Determination
Protest that contract modifications to research and development contract for electrolytic chlorine
generator system for disinfecting water are beyond the scope of the contract is denied where there
is no significant change in the purpose and nature of the contract and obligation of either party to
the contract.

B-239123.3, October 10, 1990                                                     90-2 CPD 276
Procurement
Competitive Negotiation
* Unbalanced offers
* * Materiality
* * * Determination
* D D D Criteria
Awardee's offer for base and option quantities is not materially unbalanced when the awardee's
prices are lower than protester's for the basic quantity and any quantities of options that could be
awarded under the solicitation.

Procurement
Competitive Negotiation
* Offers
E * Evaluation
* * * Administrative discretion
Normalization procedure used by contracting agency to evaluate two versions of night vision
device was fair and reasonable where the purpose of the normalization was to avoid a situation
where proposal of device that lacked additional features desired by agency would have been rated
equal to a proposal of device which included the additional features.

B-239671.4, October 10, 1990                                                     90-2 CPD 277
Procurement
Bid Protests
* GAO procedures
* * Interested parties
* *E Direct interest standards
Protester whose proposal was properly eliminated from the competitive range is not an interested
party to challenge whether the proposed awardee's proposal may be accepted where other accepta-
ble proposal would be in line for award if the protest were sustained.




Page 19                                                                   Digests-October 1990
B-239913, October 10, 1990                                                         90-2 CPD 278
Procurement
Competitive Negotiation
* Offers
* * Evaluation
 ENE Administrative discretion
Procuring officials enjoy a reasonable degree of discretion in evaluating proposals for campground
concessionaire operations, and General Accounting Office will not disturb an evaluation where the
record supports the conclusions reached and the evaluation is consistent with the criteria set forth
in the prospectus.

Procurement
Bid Protests
* Bias allegation
* * Allegation substantiation
MEN Evidence sufficiency
Protest that agency was biased in favor of the awardee in its evaluation of proposals for camp-
ground concessionaire operations is denied where there is no credible evidence showing bias, and
the record supports the selection of the awardee.

B-239917, October 10, 1990                                                         90-2 CPD 279
Procurement
Competitive Negotiation
* Requests for proposals
* * Evaluation criteria
* * * Sample evaluation
* MR R Testing
Agency properly rejected proposal as technically unacceptable and outside competitive range
where protester failed to submit bid samples which were necessary to evaluate cost and to estab-
lish technical acceptability of offer.

B-239932, October 10, 1990***                                                      90-2 CPD 280
Procurement
Contract Management
* Contract modification
* * Cardinal change doctrine
* * * Criteria
* U E MDetermination
Procurement
Special Procurement Methods/Categories
* Service contracts
E * Telecommunications
Requirement for long-distance telephone service for federal inmates comes within the scope of the
FTS2000 telecommunications services contracts. Where the long distance service does not differ in
any technical respect from that being provided under the FTS2000 contracts, the contracts specifi-
cally provide for additional users, and the contracts cover telephone services related to official gov-
ernment business, including telephone calls by inmates.

Page 20                                                                     Digests-October 1990
Procurement
Contract Management
* Contract modification
E* Cardinal change doctrine
* E* Criteria
* l N E Determination
Where agency requirement for long-distance telephone service for federal inmates comes within
the scope of the FTS2000 telecommunications services contracts, agency is required to place orders
for the service under the FrS2000 contract in the absence of an exception granted by the General
Services Administration and such orders will not constitute improper sole-source procurements.

B-241005, October 11, 1990                                                       90-2 CPD 281
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* * * 10-day rule
Letter to agency stating future intent to submit a protest concerning the agency's rejection of bid
as nonresponsive does not constitute a protest and subsequent protest filed with the General Ac-
counting Office more than 10 working days after the basis for protest was known is dismissed as
untimely.

B-239795.2, October 12, 1990                                                     90-2 CPD 282
Procurement
Sealed Bidding
* Contract awards
* * Propriety
Failure of two lower bidders to satisfy small business size standard referenced in the solicitation
was not a basis for rejecting those bids where neither the solicitation nor the Commerce Business
Daily synopsis contained language indicating that the procurement was set aside for small busi-
nesses, and the agency never intended a set-aside.

B-239938, October 12, 1990                                                      90-2 CPD 283
Procurement
Socio-Economic Policies
* Small businesses
* * Responsibility
* * * Negative determination
* EKE Reconsideration
Protest that the contracting agency improperly failed to reconsider nonresponsibility determina-
tion in light of new information submitted by a third party to the contracting officer before award,
but after Small Business Administration declined to issue certificate of competency, is denied
where record indicates that the contracting agency did consider the evidence presented and rea-
sonably determined that reversal of the nonresponsibility determination was not warranted.




Page 21                                                                   Digests-October 1990
Procurement
Bid Protests
* GAO procedures
*E Interested parties
* * * Direct interest standards
Where bidder properly was found nonresponsible, its protest challenging cancellation of solicita-
tion is dismissed, since firm would not be in line for award if the protest were sustained, and thus
is not an interested party under General Accounting Office Bid Protest Regulations.


B-239942, October 12, 1990                                                       90-2 CPD 284
Procurement
Competitive Negotiation
* Unbalanced offers
* * Materiality
* E* Determination
*- -E Criteria
Procurement
Competitive Negotiation
* Unbalanced offers
* * Rejection
* * * Propriety
The apparent low offer on a contract for a base period and 3 option periods was properly rejected
as materially unbalanced where there is a large price differential between the base and option
periods, the bid does not become low until almost 90 percent of the option quantities have been
acquired, and the solicitation indicates there is uncertainty as to exercise of the options due to
funding constraints, because there is reasonable doubt that acceptance of the offer ultimately will
result in the lowest overall cost to the government.


B-239948, October 12, 1990                                                       90-2 CPD 285
Procurement
Competitive Negotiation
* Contract awards
* * Propriety
Award of lease for office space to higher-priced offeror is proper where solicitation provides for
consideration of environmental factors and the contracting agency reasonably determined that
protester's proposed site may pose safety problems for agency employees and clients.

B-239952, October 12, 1990                                                       90-2 CPD 286
Procurement
Sealed Bidding
* Invitations for bids
* E Terms
* EU Risks
Protest that maintenance dredging solicitation requesting a lump sum price instead of unit prices
for government estimated quantities places too much risk on the contractor and results in bidders
not bidding on an equal basis is denied, where the record shows the method of contracting chosen
by the agency significantly reduces the agency's administrative burden and bidders can reasonably
estimate the project cost given the availability of historical data and the apparent nature of the
risks.

Page 22                                                                   Digests-October 1990
B-239997, October 12, 1990                                                       90-2 CPD 287
Procurement
Socio-Economic Policies
* Preferred products/services
* * Domestic products
* * E Compliance
Where contracting officer had information available which indicated that an offeror would provide
a domestic end product, the contracting officer properly relied on the offeror's self-certification
that a domestic end product would be furnished.

Procurement
Contract Management
* Contract administration
E * Domestic products
* * * Compliance
*UN E GAO review
Protest that awardee falsely certified that it will provide a domestic end product as required by
the solicitation's Buy American Act clause and that it will not incorporate required jewel bearings
in its product is dismissed because the questions whether the awardee will provide a domestic end
product, as it certified in its offer, or comply with the jewel bearings requirement, are matters of
contract administration and are not for consideration under the General Accounting Office's bid
protest function.

B-240067, October 12, 1990                                                      90-2 CPD 288
Procurement
Bid Protests
* GAO procedures
E * Interested parties
* * * Direct interest standards
Protester does not have the direct economic interest to be considered an interested party to protest
either the reasonableness of the cost-technical tradeoff or the cost reasonableness of the awardee's
proposal where the protester would not be next in line for award if either protest issue were sus-
tained.

Procurement
Competitive Negotiation
* Offers
E * Competitive ranges
* * * Inclusion
*.    B Administrative discretion
Where contracting agency determines that second low cost proposal had a reasonable chance for
contract award, contracting agency reasonably included the proposal within the competitive range
even if the proposal had some deficiencies.




Page 23                                                                   Digests-October 1990
B-241037, October 12, 1990                                                      90-2 CPD 289
Procurement
Bid Protests
* GAO procedures
* * Purposes
* * * Competition enhancement
General Accounting Office (GAO) will not review protest that government should procure items
from a particular firm on a sole-source basis because the objective of GAO's bid protest function is
to ensure full and open competition for government contracts.

B-241040, October 12, 1990                                                       90-2 CPD 290
Procurement
Bid Protests
* GAO procedures
* * Interested parties
Fourth low offeror is not an interested party to question low firm's eligibility for award since it
would not be in line for award even if the issue were resolved in its favor.

B-240274, B-230275, October 15, 1990                                             90-2 CPD 291
Procurement
Bid Protests
* GAO procedures
E U Protest timeliness
* * E 10-day rule
Protests that agency improperly canceled two requests for quotations instead of awarding con-
tracts to the firm are dismissed as untimely where protester did not file protests until more than
10 days after being apprised of cancellations.

B-241465, October 15, 1990                                                       90-2 CPD 292
Procurement
Sealed Bidding
* Unbalanced bids
* * Materiality
* * * Responsiveness
Protest that bid is unbalanced because it contains decreasing option year prices is dismissed where
bid does not contain corresponding overstated charges and therefore is not unbalanced; protest of
unreasonably low prices is essentially a matter of bidder responsibility which General Accounting
Office generally does not review.




Page 24                                                                   Digests-October 1990
B-238790.4, October 16, 1990                                                     90-2 CPD 293
Procurement
Bid Protests
* Forum election
* * Finality
Procurement
Bid Protests
* GAO authority
After protests to the General Services Administration Board of Contract Appeals (GSBCA) have
been dismissed or denied, there is no impediment to assumption of jurisdiction by the General Ac-
counting Office (GAO) of a timely protest, by a firm that was not a party before the GSBCA; of the
same procurement when the issues raised in the GAO protest were never considered by the
GSBCA.

Procurement
Competitive Negotiation
* Best/final offers
* * Rejection
* * * Ambiguous offers
Agency properly rejected protester's best and final offer which was ambiguous with regard to
whether the contractor would pay for shipping of warranty repair items when solicitation warran-
ty provision makes warranty shipment costs the contractor's responsibility.

Procurement
Bid Protests
* GAO procedures
* * Interested parties
Technically unacceptable offeror is not an "interested party" under the General Accounting Of-
fice's Bid Protest Regulations to challenge the acceptability of awardee's proposal where there are
other acceptable offers because, even if the protest were sustained, the protester would not be eli-
gible for award.

B-240012, October 16, 1990                                                       90-2 CPD 294
Procurement
Specifications
* Minimum needs standards
* * Competitive restrictions
* * * Justification
* . B Sufficiency
Solicitation issued by the General Services Administration to meet the requirements of the Alter-
native Motor Fuels Act of 1988 may properly restrict competition for the supply of alternative fuel
motor vehicles to original equipment manufacturers because the restriction is consistent with the
requirements of the Act.




Page 25                                                                   Digests-October 1990
Procurement
Bid Protests
* GAO procedures
* * Interested parties
Protester that cannot comply with solicitation requirement that alternative fuel motor vehicles be
supplied by original equipment manufacturers is not an interested party to challenge other solici-
tation provisions.

B-240071, October 16, 1990                                                      90-2 CPD 295
Procurement
Sealed Bidding
* Invitations for bids
* * Post-bid opening cancellation
* * * Justification
*EH E Sufficiency
Cancellation of solicitation after bid opening is proper where agency reasonably concludes that the
solicitation does not include significant additional requirements and that award under the solicita-
tion would no longer meet the government's actual needs.

B-240119, October 16, 1990                                                       90-2 CPD 296
Procurement
Competitive Negotiation
* Offers
* * Competitive ranges
* * * Exclusion
*UD EAdministrative discretion
Protest that firm was improperly excluded from competitive range is denied where record shows
that firm's proposal lacked adequate detail to demonstrate that offeror understood requirement
and was capable of satisfactory performance. Fact that solicitation contained detailed specifica-
tions regarding contract requirements does not excuse firm's failure to present its proposed ap-
proach to satisfying solicitation's specific requirements.

B-240128, October 16, 1990                                                       90-2 CPD 297
Procurement
Competitive Negotiation
* Contract awards
E * Administrative discretion
* E * Cost/technical tradeoffs
* E D-Technical superiority
Where solicitation provided that price and technical factors would be given equal weight in the
evaluation, agency properly awarded a contract to higher-rated, higher-priced offeror where
agency reasonably determined that superior technical rating of offeror was sufficiently significant
to outweigh the cost difference.




Page 26                                                                   Digests-October 1990
B-240156, October 16, 1990***                                                     90-2 CPD 298
Procurement
Contractor Qualification
* Responsibility
* * Contracting officer findings
* * * Negative determination
* U U U Criteria
Procurement
Contractor Qualification
* Responsibility
* * Financial capacity
* * * Contractors
Where processing bank declined to accept high bidder's credit card for the amount of his bid de-
posit, protest that contracting officer improperly rejected bid as nonresponsive is sustained since
(1) deficiency in credit balance pertains solely to bidder's responsibility and can therefore be cured
any time prior to award; (2) despite credit deficiency, government's interests were never at risk
since as part of its bid, the bidder had submitted a pre-approved bid bond which insured the gov-
ernment against all default by the bidder, even where the bidder's instrument of payment was in
a non-guaranteed form such as a credit card; and (3) prior to award, the bidder promptly cured
credit deficiency with cash.

Procurement
Sealed Bidding
U Bids
* * Modification
* E * Interpretation
*
E    E Intent
Since property sales contemplate award being made on an item-by-item basis, where bidder sets
forth in his bid deposit statement that his total contract price is "$1,602" and that the amount of
his bid deposit is "20% of Bid," subsequent facsimile modifications which contain the solicitation
number, the word "modification", the date, the signature of the bidder, and a clear itemized list of
new bids and corresponding bid prices reasonably can be construed to mean that the initial con-
tract price of $1,602 has been modified; under these circumstances, the $1,602 figure does not limit
the amount of bidder's deposit and contractor is entitled to award on all items for which he was
high bidder.

B-240173, October 16, 1990                                                        90-2 CPD 299
Procurement
Socio-Economic Policies
* Preferred products/services
E * Domestic products
* * * Compliance
Protest that agency improperly relied upon awardee's Buy American Act certification in connec-
tion with firm's obligation to furnish domestic end products is denied where contracting officer
had no information at time of award which would have led her to believe that awardee would not
furnish domestic end products.


Page 27                                                                    Digests-October 1990
Procurement
Bid Protests
* Non-prejudicial allegation
* * GAO review
Protest that agency improperly waived solicitation requirement that product furnished have been
formally announced for marketing purposes on or before the closing date for the submission of
initial offers is denied where awardee's technically acceptable offer contained statement that prod-
uct had been announced at time of closing, and agency had no reason to question statement.


Procurement
Bid Protests
* Private disputes
ON GAO review
Procurement
Contractor Qualification
*   Responsibility
*   * Contracting officer findings
*   * * Affirmative determination
*   U E- GAO review
Protest that firm is nonresponsible because it will allegedly manufacture a product which, for rea-
sons of copyright infringement, it is enjoined from manufacturing is dismissed because: (1) General
Accounting Office (GAO) does not review affirmative responsibility determinations except in limit-
ed circumstances not present in this case; and (2) in any event, a copyright dispute is essentially a
private party dispute not for adjudication by GAO.


B-240768.2, October 16, 1990                                                      90-2 CPD 300
Procurement
Bid Protests
* Dismissal
* * Definition
General Accounting Office's dismissal of protest without giving protester 10 working day period to
comment on contracting agency memorandum requesting dismissal was proper because Bid Pro-
test Regulations specifically provide for dismissal when propriety of dismissal becomes clear based
upon information provided by the contracting agency.


Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
*   M 10-day rule
Protest that contracting agency improperly disregarded technical merit in awarding to low offeror
was untimely filed when raised more than 10 working days after date basis of protest was known.




Page 28                                                                   Digests-October 1990
B-240970.2, October 16, 1990                                                     90-2 CPD 301
Procurement
Bid Protests
* GAO procedures
* * GAO decisions
* * * Reconsideration
Request for reconsideration of protest, previously dismissed as untimely filed under Bid Protest
Regulations, is denied where request only contains a new ground of protest not contained in the
original submission and does not otherwise question the rationale for the dismissal of the original
protest as untimely.

B-241076.2, October 16, 1990                                                     90-2 CPD 302
Procurement
Bid Protests
* GAO procedures
E * Protest timeliness
* * * 10-day rule
Request for reconsideration of dismissal of protest as untimely filed is dismissed where protester
does not allege that dismissal was in error.

B-241394, October 16, 1990                                                       90-2 CPD 303
Procurement
Competitive Negotiation
* Requests for proposals
* * Competition rights
* * * Contractors
*EU E Exclusion
Protest of agency's failure to furnish incumbent contractor with copy of solicitation is dismissed
where protester has not alleged or shown that competition and reasonable prices were not ob-
tained or that agency acted deliberately to exclude protester from the competition.

Procurement
Bid Protests
* GAO procedures
E * Protests timeliness
* * * Apparent solicitation improprieties
Protest of agency's failure to set procurement aside for small business is untimely where not filed
until after bid opening.

B-238857.3, October 17, 1990
Procurement
Bid Protests
* GAO procedures
ME GAO decisions
* * * Reconsideration
Request for reconsideration of prior decision is denied where protester fails to present evidence of
any error of fact or law in prior decision.

Page 29                                                                   Digests-October 1990
B-239842.3, October 17, 1990                                                     90-2 CPD 304
Procurement
Bid Protests
* Agency-level protests
E * Protest timeliness
* E* GAO review
Where the protester was in possession of a fact that would establish the timeliness of its protest to
the General Accounting Office (GAO)-that is, that it had filed an earlier agency-level protest-
but did not include this fact in its protest to GAO, dismissal of protest that was otherwise untime-
ly on its face was proper.

B-239973, B-239973.2, October 17, 1990                                           90-2 CPD 305
Procurement
Noncompetitive Negotiation
* Contract awards
* * Sole sources
* * * Propriety
Procurement
Specifications
* Minimum needs standards
* E Competitive restrictions
* * E Shipment modes
Where agency issued a competitive solicitation for jet fuel, but record shows that only one source
currently is capable of delivering jet fuel by pipeline to two Air Force bases, agency in essence is
conducting a noncompetitive procurement which must be justified in accordance with statutory
requirements.

B-240011, October 17, 1990***                                                     90-2 CPD 306
Procurement
Competitive Negotiation
* Requests for proposals
* * Terms
* * * Service contracts
* D UE Applicability
Procurement
Socio-Economic Policies
* Service contracts
E * Applicability
Protest is sustained where the procuring agency unreasonably disregarded the Department of
Labor's determination that the Service Contract Act was applicable to the agency's procurement
and in proceeding to receive proposals in the face of Labor's determination.




Page 30                                                                    Digests-October 1990
B-240030, October 17, 1990                                                      90-2 CPD 307
Procurement
Competitive Negotiation
* Unbalanced offers
* * Materiality
* * * Determination
*-D- Criteria
Low bid is not materially unbalanced, and thus not subject to rejection as being nonresponsive,
where the contracting agency expects to exercise the option quantities, and the record contains no
basis for concluding that low bidder would not offer the lowest ultimate cost to the government.

B-240034, October 17, 1990                                                      90-2 CPD 308
Procurement
Competitive Negotiation
* Offers
* * Competitive ranges
* * * Exclusion
* D D E Administrative discretion
Agency properly rejected protester's offer which did not contain a technical proposal, as required
by the solicitation.

B-240105, October 17, 1990                                                      90-2 CPD 309
Procurement
Specifications
* Minimum needs standards
* * Competitive restrictions
* *U GAO review
Protest that required item does not meet Federal Acquisition Regulation (FAR) definition of "com-
plex" item and therefore does not warrant imposition of high-level quality control requirement is
denied where agency reasonably determined that item's quality characteristics are consistent with
FAR definition, and that high-level quality control is necessary to meet its minimum needs.

B-240980.2, October 17, 1990***                                                 90-2 CPD 310
Procurement
Bid Protests
* GAO procedures
E * Protest timeliness
* * * Significant issue exemptions
*     Dl.Applicability
Untimely protest of a solicitation's evaluation scheme will not be considered under the significant
issue exception to the General Accounting Office (GAO) timeliness requirements where the issue
raised in the protest has been considered on the merits by GAO in prior decisions and resolution
of the issue would not be of widespread interest to the procurement community but only to the
protester in this procurement. GAO will no longer invoke the significant issue exception solely
because the record shows a violation of statute or regulation. 68 Comp. Gen. 473 (1989), 66 Comp.
Gen. 367 (1987), and 66 Comp. Gen. 31 (1986) will no longer be followed.

Page 31                                                                  Digests-October 1990
B-231370, October 18, 1990***
Procurement
Payment/Discharge
* Payment withholding
* * Prompt payment discounts
* * * Propriety
The Government Printing Office (GPO) was entitled to take prompt payment discounts on contract
payments owed to Swanson Typesetting Service but paid to the Internal Revenue Service (IRS)
pursuant to notice of levy even though actual transfer of funds to IRS did not occur until after
contractual payment period for prompt payment discounts. GPO may not be deprived of its right
to take prompt payment discounts where payment to contractor is withheld on account of an IRS
levy notice.

Procurement
Payment/Discharge
* Payment priority
* * Payment procedures
* U * Set-off
Although IRS served notice of levy on GPO pursuant to 26 U.S.C. § 6331, we view such notice as
an IRS request for GPO to set off amounts GPO owed its contractor. US. for Use of P. J. Keating
Co. v. Warren Corp., 805 F.2d 449, 452 (1st Cir. 1986). Thus, GPO properly transferred to IRS
amounts owed the contractor, Swanson Typesetting Service, on invoices received both before and
after receipt of the notice of levy.

B-240059, B-240059.2, October 18, 1990                                         90-2 CPD 311
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* * * Apparent solicitation improprieties
Protest asserting that agency improperly failed to impose a cap on general and administrative
overhead rates proposed by offerors, and failed to include other similar terms in the request for
proposals, is dismissed as untimely since under the General Accounting Office Bid Protest Regula-
tions such challenges must be filed prior to receipt of initial proposals.

Procurement
Competitive Negotiation
* Offers
* * Cost realism
* *U Evaluation
*--B Administrative discretion
Challenge to agency's review of awardee's cost realism is denied where record shows that the cost
realism review was reasonable based on consideration of the offerors' cost and pricing data, a De-
fense Contract Audit Agency audit, and the Source Selection Board's technical evaluation.




Page 32                                                                 Digests-October 1990
Procurement
Bid Protests
* Non-prejudicial allegation
* * GAO review
Assertion that agency acted improperly in deleting from awardee's contract certain clauses includ-
ed in the solicitation is denied where the clauses were later properly found to be inapplicable or
not required.


B-240204, October 18, 1990                                                       90-2 CPD 312
Procurement
Competitive Negotiation
* Contract awards
* * Administrative discretion
* * * Cost/technical tradeoffs
*E EU Technical superiority
Agency reasonably selected technically superior, higher priced proposal for mechanical site prepa-
ration contract where the agency found the awardee's strengths in personnel, equipment, proposed
performance, and superior quality control would provide greatest assurance that all the work con-
templated under the contract would be completed within the limited time span allotted for per-
formance and, thus, the award would be the most advantageous to the government.


B-240289, October 18, 1990                                                       90-2 CPD 313
Procurement
Contractor Qualification
* Responsibility criteria
* * Performance capabilities
Solicitation provision requiring that bidders certify that they have been "regularly engaged in air-
field pavement work for the three years immediately preceding" their bid, and requiring that bid-
ders submit a list of contracts for airfield pavement work completed within the "past three years,"
provides specific quantitative qualifications establishing definitive responsibility criteria.


Procurement
Contractor Qualification
* Responsibility
* U Contracting officer findings
* * * Affirmative determination
*E ME GAO review
Protest that proposed awardee does not meet definitive responsibility criteria in solicitation re-
quiring experience in airfield pavement work is sustained since the proposed awardee provided no
objective evidence upon which the contracting officer could reasonably determine that it satisfied
the experience requirement.




Page 33                                                                   Digests-October 1990
B-240360, October 18, 1990                                                        90-2 CPD 314
Procurement
Small Purchase Method
* Quotations
* * Descriptive literature
* E* Adequacy
Contracting agency properly may use manufacturer's part number and national stock number as
an item description under a procurement of relatively simple and common items conducted
through small purchase procedures where such identification adequately conveys the agency's
needs.

B-241168, October 18, 1990                                                        90-2 CPD 315
Procurement
Bid Protests
* Agency-level protests
* * Protest timeliness
* * * GAO review
Protest is dismissed as untimely where initial agency-level protest against solicitation specification
was filed a month after the closing date for receipt of initial proposals.

B-238768.2, October 19, 1990                                                      90-2 CPD 316
Procurement
Competitive Negotiation
* Competitive advantage
* U Conflicts of interest
* * * Post-employment restrictions
* D--Allegation       substantiation
Procurement
Contract Management
* Contract administration
* E Convenience termination
* * * Competitive system integrity
Agency properly terminated the contract of firm and disqualified firm from further participation
in the procurement where agency reasonably concluded that telephone calls made by a former
government official whose duties included the procurement, on behalf of the awardee, to various
government officials involved in award decision, while award was pending, could be construed as
possibly violating the restrictions of 18 U.S.C. §§ 203, 205 and 207 (1988) and created appearance of
impropriety detrimental to the competitive system.

B-238872, October 19, 1990
Procurement
Special Procurement Methods/Categories
* Lease/purchase options
E 0Use
Customs, using its authority to procure a lease, may exercise its purchase option to leased aircraft
through a direct purchase, by use of the agency of or, alternatively, through an assignment to a
third party leasing firm supplying its own funds, for the purpose of obtaining a new lease from the
leasing firm at a reduced rate and with other favorable lease terms. This procedure, a third party

Page 34                                                                    Digests-October 1990
leaseback, is not subject to the laws governing the disposal of government property as long as the
government obtains more favorable terms under the new lease.

B-240016, October 19, 1990                                                       90-2 CPD 317
Procurement
Competitive Negotiation
* Offers
ME Evaluation errors
* * * Evaluation criteria
* MM Application
Protest is sustained where agency evaluation gave greater weight to technical factors than was
reasonably consistent with the solicitation evaluation criteria by using a scoring formula which
accorded less than 10 percent to price, and more than 90 percent to technical, and effectively
failed to consider protester's low fixed price as a significant evaluation factor.

Procurement
Competitive Negotiation
* Contract awards
* * Initial-offer awards
* * * Propriety
Protest is sustained where agency made award to other than the low priced, technically acceptable
offeror on the basis of initial proposals without discussions.

B-240052, October 19, 1990                                                       90-2 CPD 318
Procurement
Contractor Qualification
* Responsibility
* * Contracting officer findings
* * * Affirmative determination
*- UE GAO review
Protest that awardee incorrectly listed and certified its place of performance concerns a matter of
responsibility. The General Accounting Office will not review the contracting officer's affirmative
determination of responsibility absent a showing of possible bad faith or fraud or misapplication of
definitive responsibility criteria.

Procurement
Special Procurement Methods/Categories
* Federal supply schedule
* * Multiple/aggregate awards
* * * Price reasonableness
Agency reasonably found awardee offered its most favored customer price on Federal Supply
Schedule Contract.




Page 35                                                                   Digests-October 1990
B-240148, October 19, 1990***                                                  90-2 CPD 319
Procurement
Special Procurement Methods/Categories
* Requirements contracts
* * Validity
* * * Determination
Solicitation for natural gas from wellhead producers and its transmission via the interstate pipe-
line to local distributing companies reasonably was found not to be a contract for utility services
within the meaning of the Department of Labor's regulatory exemption from the application of
the Walsh-Healey Act and thus the Walsh-Healey Act is applicable to the procurement.

Procurement
Socio-Economic Policies
* Small businesses
* Disadvantaged business set-asides
* * Eligibility
* * * Determination
Procuring agency properly did not set aside procurement for small disadvantaged business (SDB)
concerns where the agency determined that there was no expectation of receiving offers from two
or more SDBs which would be eligible for award as manufacturers/producers or regular dealers as
required by the Walsh-Healey Act.

B-240323.2, October 19, 1990                                                    90-2 CPD 320
Procurement
Bid Protests
* GAO procedures
E * Protest timeliness
* * E 10-day rule
Prior dismissal for untimeliness is affirmed where the initial protest was filed more than 10 work-
ing days after the contracting agency denied agency-level protest; protester's continued pursuit of
the protest with the agency does not toll timeliness requirements.

B-241295, B-241300, October 19, 1990                                            90-2 CPD 321
Procurement
Bid Protests
* GAO procedures
E * Protest timeliness
MEN 10-day rule
Protests that agency improperly canceled solicitations are dismissed as untimely where protester
filed agency-level protests more than 10 working days after the protester was notified about can-
cellations of the solicitations.




Page 36                                                                  Digests-October 1990
B-238452.3, October 22, 1990                                                     90-2 CPD 322
Procurement
Bid Protests
* GAO procedures
* * Preparation costs
Procurement
Competitive Negotiation
* Offers
* * Preparation costs
Successful protesters are entitled to protest costs even where their protests are sustained (based on
the General Accounting Office's in camera review of evaluation documents) on ground which was
not argued by the protesters.

B-240045, October 22, 1990                                                       90-2 CPD 323
Procurement
 Competitive Negotiation
 * Offers
 * * Evaluation
*OE Technical acceptability
Where request for proposals provides for award to lowest-priced offeror, contracting agency prop-
erly awarded to low offeror where agency reasonably determined that proposal and descriptive lit-
erature submitted by offeror established that its proposed equipment conformed to the agency's
technical requirements.

B-241036.2, October 22, 1990
Procurement
Bid Protests
* GAO procedures
* * GAO decisions
* * E Reconsideration
Dismissal of protest is affirmed where the protest against the specifications was filed at the agency
with the protester's bid, since such protests must be filed prior to bid opening.

B-241416, October 22, 1990
Procurement
Socio-Economic Policies
* Small businesses
* * Disadvantaged business set-asides
* * * Preferences
*-U -Eligibility
Small disadvantaged business (SDB) dealer that proposed to supply end items manufactured by a
large business is not entitled to solicitation's SDB evaluation preference.




Page 37                                                                   Digests-October 1990
B-237107.3, October 24, 1990                                                      90-2 CPD 324
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* * * 10-day rule
Procurement
Sealed Bidding
* Unbalanced bids
* * Materiality
* * * Responsiveness
Protest that awardee's bid should be rejected as materially unbalanced was timely filed under Bid
Protest Regulations, where it was filed within 10 working days of receipt of the agency's report on
a prior protest; and the protester first became aware, from reading the report, of the agency's post
bid opening acceptance of a breakdown of the awardee's lump-sum bid for the line items specified
in the invitation for bids, which was then incorporated into the awardee's contract.

Procurement
Sealed Bidding
* Unbalanced bids
*E Materiality
* * * Responsiveness
Protest that a bid must be rejected as materially unbalanced is denied where: (1) there is no possi-
bility that an award on the basis of the bid will not result in the lowest cost to the government,
and (2) the bid is not so grossly unbalanced as to constitute an improper advanced payment or
interest-free loan.

B-239231.10, October 24, 1990                                                     90-2 CPD 325
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
Prot Apparent solicitation improprieties
Protest of solicitation provision limiting the number of pages in technical proposal, and of failure
to partially set aside procurement for small business concerns, not raised prior to the time for
receipt of initial proposals, is untimely.

Procurement
Competitive Negotiation
* Offers
* * Competitive ranges
* * * Exclusion
* - E 0Administrative discretion
Protester was properly excluded from the competitive range where the agency had a reasonable
basis for its determination that the offeror's proposal was so deficient in various technical areas as
to require major revision in order to be considered technically acceptable.

Page 38                                                                    Digests-October 1990
B-240114, October 24, 1990                                                      90-2 CPD 326
Procurement
Socio-Economic Policies
* Small businesses 8(a) subcontracting
* * Incumbent contractors
* * D Adverse effects
* D D D Determination
Prior to accepting requirement which previously was set aside for small business into 8(a) pro-
gram, Small Business Administration (SBA) is required by regulation to determine adverse impact
of acceptance on small business concerns based on most recent gross sales. Where SBA fails to
consider most recent financial information showing sales information in finding no adverse impact
on small business in violation of this regulation, protest is sustained.

B-240748, October 24, 1990                                                      90-2 CPD 327
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* * * Apparent solicitation improprieties
Procurement.
Socio-Economic Policies
* Preferred products/services
* * American Indians
Protest after bid opening that solicitation was improperly restricted to Indian-owned firms pursu-
ant to the Buy Indian Act is dismissed as untimely where set-aside status was clearly stated on
cover sheet of the solicitation and was included in the Commerce Business Daily notice of the pro-
curement.

B-241038, October 24, 1990                                                      90-2 CPD 328
Procurement
Socio-Economic Policies
* Disadvantaged business set-asides
E 0Use
* * * Administrative discretion
Department of Defense's objective of awarding 5 percent of the dollar value of its contracts to
small disadvantaged business concerns is a goal, not a cap or ceiling which cannot be exceeded.

B-241687, October 24, 1990                                                      90-2 CPD 329
Procurement
Sealed Bidding
* Unbalanced bids
* * Allegation substantiation
* * * Evidence sufficiency
Protest that bid is unbalanced because it offers certain items at less than cost is dismissed where
protester does not allege that bid also contained overstated charges.

Page 39                                                                  Digests-October 1990
B-234217, October 25, 1990
Procurement
Payment/Discharge
* Shipment costs
E * Overcharge
* * * Payment deductions
* E K E Propriety
Where carrier's Freight All Kinds (FAK) tender specifies that, except for the noted commodities,
rates and minimum charges will be based on the rates and minimum charges set out in referenced
bureau class rate tariffs, the carrier cannot except additional commodities from the FAK rating
scheme by revising carrier-issued documents also incorporated by reference; instead, and in ac-
cordance with the tender's own terms, the carrier can add further exceptions only by amending
the tender itself

B-240186, October 25, 1990                                                         90-2 CPD 330
Procurement
Specifications
* Minimum needs standards
* * Determination
* E * Administrative discretion
An agency's requirement for a 16,000 pound tensile test to measure the tensile strength of scaf-
folding couplers is unobjectionable where the agency has found that the couplers safely support
the scaffolding if they can pass that test; the fact that the protester desires a more restrictive test
does not render the agency's determination unreasonable.

B-240443.3, October 25, 1990                                                       90-2 CPD 331
Procurement
Bid Protests
* GAO procedures                                                                             I
* * GAO decisions
* E * Reconsideration
Request for reconsideration of prior decision is denied where protester does not establish any fac-
tual or legal errors in the prior decision.


B-240856, B-240857, October 25, 1990
Procurement
Sealed Bidding
* Invitations for bids
* * Amendments
* E* Notification
Protester's contention that amendments to two solicitations did not adequately place potential bid-
ders on notice of the changed bid opening dates for both solicitations does not state a valid basis of
protest where change in bid opening date in each solicitation amendment was clearly and reason-
ably apparent to any prudent bidder.




Page 40                                                                     Digests-October 1990
B-241375, October 25, 1990                                                       90-2 CPD 332
Procurement
Bid Protests
* Private disputes
E * GAO review
Protest of conduct of protester's former employee, who left protester's firm and accepted employ-
ment with awardee firm during the competitive process, is essentially a dispute between private
parties which is outside the scope of General Accounting Office's bid protest function.


B-241390, October 25, 1990                                                       90-2 CPD 333
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* * * Apparent solicitation improprieties
Protest that solicitation should have been set aside for small disadvantaged businesses filed after
bid opening is untimely since solicitation indicated it was issued on an unrestricted basis and pro-
tests concerning alleged improprieties in a solicitation must be filed prior to bid opening.


B-241661, October 25, 1990                                                       90-2 CPD 334
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* * * Good cause exemptions
*UD D Applicability
Untimely protest will not be considered pursuant to the "good cause" exception where protester
does not demonstrate that some compelling reason beyond its control prevented it from filing a
timely protest.


B-238927.2, et al., October 26, 1990                                             90-2 CPD 335
Procurement
Socio-Economic Policies
* Small business set-asides
EUUse
* * * Administrative discretion
Where Small Business Administration regional office determines that no small business offers
were received under a small business set-aside, the proper procedure is for the agency to withdraw
the set-aside and resolicit on an unrestricted basis rather than award to large business offeror.




Page 41                                                                   Digests-October 1990
B-240136, October 26, 1990                                                     90-2 CPD 336
Procurement
Specifications
 * Minimum needs standards
* * Competitive restrictions
* * * Performance specifications
*f lU   Overstatement
Protest that agency relaxed a solicitation requirement that proposed staff have at least 2 years
programming experience using a certain specified type of data base management system by ac-
cepting an offer proposing a staff with different data base management system experience is sus-
tained, where record shows that requirement was mandatory. Since the agency found the different
experience acceptable and transition to performance by firm not meeting requirement is being
achieved without problems, the experience requirement exceeded the agency's minimum needs
and may have unduly restricted competition. The General Accounting Office therefore recom-
mends that the agency resolicit, requiring only the experience necessary for performance.

B-240144, October 26, 1990                                                     90-2 CPD 337
Procurement
Competitive Negotiation
* Offers
* * Competitive ranges
* * E Exclusion
* D D D Administrative discretion
Agency properly rejected protester's proposal from the competitive range as technically unaccept-
able where the proposal did not contain sufficient information to allow the agency to determine
whether the solicitation's technical requirements had been met.

Procurement
Competitive Negotiation
* Offers
* * Competitive ranges
* * * Exclusion
*     DUEAdministrative discretion
Procurement
Competitive Negotiation
* Offers
E * Evaluation
* ME Technical acceptability
Proposal that agency properly finds technically unacceptable may be excluded from the competi-
tive range without consideration of price.

Procurement
Competitive Negotiation
* Discussion
ME Determination criteria
Contracting agency is not required to conduct discussions with offerors of proposals determined to
be technically unacceptable.

Page 42                                                                 Digests-October 1990
B-240187, October 26, 1990                                                       90-2 CPD 338
Procurement
Competitive Negotiation
* Offers
* * Evaluation errors
* * Evaluation criteria
* D D D Application
Contention that agency improperly evaluated protester's technical proposal is denied where record
indicates that agency evaluation was reasonable and in accordance with stated evaluation criteria,
and where protester fails to rebut or reply to any of the agency's detailed responses to the evalua-
tion challenge.

Procurement
Competitive Negotiation
* Competitive advantage
* * Non-prejudicial allegation
Contention that awardee had unfair competitive advantage due to experience gained by its subcon-
tractor is untimely when raised more than 4 months after agency responded to protester's initial
complaint on this basis by providing designs and drawings intended to eliminate any improper
competitive advantage enjoyed by the subcontractor.

Procurement
Competitive Negotiation
* Discussion
*E Adequacy
* * * Criteria
Protest alleging that agency failed to conduct meaningful discussions is untimely when first raised
after receipt of the agency report where the agency provided a preaward debriefing to protester
indicating the major weaknesses in its proposal and the protester had all the information it
needed to include this argument in its initial timely protest filed after the debriefing.

B-240226, October 26, 1990                                                       90-2 CPD 339
Procurement
Competitive Negotiation
* Offers
E * Competitive ranges
* E * Exclusion
* D E-Administrative discretion
Protest that agency improperly excluded protester's proposal from the competitive range is denied
where the agency reasonably found that the proposal was deficient under each evaluation factor.




Page 43                                                                   Digests-October 1990
B-240244, October 26, 1990                                                       90-2 CPD 340
Procurement
Sealed Bidding
* Invitations for bids
* * Evaluation criteria
* * * Unit prices
* H U E Size standards
Invitation for bids (IFB) required bids for thermal insulation sheets based on a unit price per sheet
and bidders could provide sheets in a range of sizes at the stated unit price. Protest that bidder
offered the lowest price on a square footage basis, rather than on a per sheet basis, is denied be-
cause such an evaluation would be inconsistent with the IFB.

B-240252, October 26, 1990                                                       90-2 CPD 341
Procurement
Noncompetitive Negotiation
* Contract awards
ON Sole sources
* * * Propriety
Where agency does not possess or have rights in the technical data necessary for a competitive
procurement of repair services for battery charger/analyzers, and protester has not shown that
performance could be accomplished only with the data available to it, agency has proper basis for
finding protester unacceptable and proceeding with a sole-source procurement of the services from
the original manufacturer, which has full technical data on the items.


B-241327.2, October 26, 1990                                                     90-2 CPD 342
Procurement
Bid Protests
* Premature allegation
* * GAO review
Protest that proposed solicitation, which is presently under agency review, should be a small busi-
ness set-aside and for a term of 1 year is dismissed as premature.

B-241351.2, October 26, 1990                                                     90-2 CPD 343
Procurement
Bid Protests
* GAO procedures
* U Protest timeliness
* * * 10-day rule
Contention that protester was improperly excluded from competitive range is untimely when filed
more than 10 days after receipt of competitive range notice from the agency.




Page 44                                                                   Digests-October 1990
B-241567, October 26, 1990                                                      90-2 CPD 344
Procurement
Sealed Bidding
* Bids
* * Responsiveness
* * * Ambiguous prices
Bid was properly rejected where its total price was low but the sum of all the priced line items
was not low. A bid must be rejected where it is susceptible of being interpreted as offering either
of two prices and only one price is low.

B-236834.6, B-236834.7, October 30, 1990                                        90-2 CPD 345
Procurement
Bid Protests
* GAO procedures
* * GAO decisions
* * * Reconsideration
General Accounting Office will not consider new arguments raised by agency in a request for re-
consideration where those arguments are derived from information available during initial consid-
eration of the protest but not argued, or from information available but not submitted during ini-
tial protest, since parties that withhold or fail to submit all relevant evidence, information, or
analyses do so at their own peril.

Procurement
Bid Protests
* GAO procedures
E * GAO decisions
* * * Reconsideration
Repetition of arguments previously made and mere disagreement with prior decision do not pro-
vide bases for reconsideration of a decision.

B-239490.2, October 30, 1990                                                    90-2 CPD 346
Procurement
Competitive Negotiation
* Offers
E * Competitive ranges
* * * Exclusion
.* . R Administrative discretion
Protest challenging contracting agency's evaluation of protester's proposal and exclusion of the
proposal from the competitive range is denied where a review of the agency's evaluation shows
that it was conducted in accordance with the solicitation's evaluation criteria and that the agen-
cy's conclusion to exclude the proposal was reasonable, notwithstanding the protester's allegation
that the evaluation result was unwarranted and made in bad faith.




Page 45                                                                  Digests-October 1990
B-239672.3, October 30, 1990                                                  90-2 CPD 347
Procurement
Bid Protests
* GAO procedures
* U GAO decisions
* * * Reconsideration
Where an interested party was on notice of the protest, but did not choose to file any comments
with regard to the issues raised therein, that party is not eligible to request reconsideration.

B-240160, et al., October 30, 1990                                             90-2 CPD 348
Procurement
Competitive Negotiation
* Offers
* * Evaluation
* * * Wage rates
Agency treated offerors equally with regard to use of Department of Labor area wage determina-
tion rates where the request for proposals was not misleading as to wage rates, similar cost ques-
tions were posed to offerors during discussions, and both offerors had an opportunity to respond.

Procurement
Competitive Negotiation
* Offers
ON Evaluation errors
* * * Non-prejudicial allegation
Discrepancy in wage rates proposed in awardee's technical and cost proposals does not warrant
disturbing award where there is no evidence in the record of fraud or deliberate misrepresentation
and the amount of the discrepancy is extremely small with respect to the difference between the
proposals of the awardee and the next low offeror, so that no prejudice will result to the latter.

Procurement
Competitive Negotiation
* Offers
* U Cost realism
* * * Evaluation
*l f E Administrative discretion
Agency cost realism analysis had a reasonable basis where the agency reviewed awardee's re-
sponse to agency cost discussions; verified labor categories, hours proposed, labor and burden
rates; and verified other costs with the Defense Contract Audit Agency.

Procurement
Competitive Negotiation
* Offers
* * Cost realism
* E * Evaluation
*--R Administrative discretion
Agency cost realism analysis was proper where agency accepted awardee's supplying of facility at
no cost and ceiling on general and administrative rates and employee health and welfare benefits,
since, under the contract awarded, the firm waived its rights to recover costs above the caps

Page 46                                                                 Digests-October 1990
throughout the life of the contract and agreed that these costs would not be allocated to any other
government contracts.

Procurement
Competitive Negotiation
* Offers
* * Evaluation
*EN Technical acceptability
Agency properly conducted technical evaluation of a proposal which offered minimum area wage
determination rates where the solicitation mandated a reduction in technical score only if such
rates were found to be unrealistic.

B-240180, October 30, 1990                                                      90-2 CPD 349
Procurement
Contractor Qualification
* Responsibility
* * Contracting officer findings
*E E Negative determination
*- --  Pre-award surveys
A contracting officer's determination that a paint contractor was nonresponsible was reasonably
based upon a negative pre-award survey, which showed that the contractor's prior performance on
four recent similar contracts had been unsatisfactory, and file documentation indicating late per-
formance and delivery of nonconforming paint; the contracting officer had no duty, under the cir-
cumstances, to conduct an independent investigation for the purpose of substantiating the accura-
cy of the pre-award survey, notwithstanding that some of the alleged deficiencies had been disput-
ed by the contractor.

Procurement
Contractor Qualification
* Responsibility
* * Contracting officer findings
* * * Negative determination
* N N E Prior contract performance
A contracting officer's determination that a paint contractor was nonresponsible was reasonably
based upon a negative pre-award survey, which showed that the contractor's prior performance on
four recent similar contracts had been unsatisfactory, and file documentation indicating late per-
formance and delivery of nonconforming paint; the contracting officer had no duty, under the cir-
cumstances, to conduct an independent investigation for the purpose of substantiating the accura-
cy of the pre-award survey, notwithstanding that some of the alleged deficiencies had been disput-
ed by the contractor.

B-240301, October 30, 1990
Procurement
Sealed Bidding
* Bids
* * Late submission
* * * Rejection
*- - -    Propriety
Where bidder sent bid by U.S. Postal Service Express Mail only 1 working day before bid opening;
bid arrived at government installation only approximately 6 hours before bid opening; and instal-

Page 47                                                                  Digests-October 1990
lation's normal mail delivery procedures would not have assured timely delivery to bid opening
room, reason for late receipt of bid in bid opening room was bidder's failure to allow sufficient
time for delivery, not government mishandling; accordingly, the bid was properly rejected as late.

Procurement
Sealed Bidding
* Bids
* * Late submission
* * * Rejection
* E N E Propriety
Late bid may not be considered on ground that agency failed to respond to protester's inquiry con-
firming whether agency received its bid before bid opening; agency does not have a duty to inform
protester about arrival of its bid.

Procurement
Bid Protests
* Competition
* * Adequacy
Competition was adequate, even where only one bid is timely received, where there is no evidence
or allegation that the bid price was unreasonable, since all interested firms had opportunity to
compete, and bid was submitted under threat of competition.

B-240798, October 30, 1990                                                      90-2 CPD 350
Procurement
 Contractor Qualification
* Responsibility
* * Contracting officer findings
* * * Affirmative determination
*E E E  GAO review
Where invitation for bids for physician services required submission of physician qualifications
with bid, allegation that low bidder is nonresponsible because it substituted proposed physicians
with incumbent contractor's employees prior to award amounts to challenge against contracting
officer's affirmative determination of responsibility, which General Accounting Office will not con-
sider absent specific allegations not present here.

Procurement
Bid Protests
* Antitrust matters
* * GAO review
Allegation of collusive bidding is a matter for the Justice Department, and will not be considered
by the General Accounting Office under its bid protest function.




Page 48                                                                   Digests-October 1990
B-240873, B-240873.2, October 30, 1990                                           90-2 CPD 351
Procurement
Socio-Economic Policies
* Small businesses
* * Suppliers
* * * Acceptability
Protests that firm with small business, small purchase Blanket Purchasing Agreement (BPA) is
supplying bakery items from large business bakery is denied as the regulations permit small busi-
ness holder of such a BPA to supply any domestically produced or manufactured item.


B-241333, October 30, 1990                                                       90-2 CPD 352
Procurement
 Sealed Bidding
* Bids
* * Responsiveness
* * * Acceptance time periods
.* R Deviation
Failure to submit solicitation page containing "Minimum Bid Acceptance Period" clause does not
render bid nonresponsive where bidder indicates on Standard Form 33 that it is offering the same
minimum bid acceptance period required by omitted clause.


B-239007.3, October 31, 1990                                                     90-2 CPD 353
Procurement
Competitive Negotiation
* Contract awards
* * Propriety
Allegation that agency awarded lease at a rental in excess of the estimate in a statutorily required
prospectus approved by a congressional committee is denied where the actual rental amount
under the award is within prospectus ceiling, as escalated by statutorily permitted inflation factor.

Procurement
Competitive Negotiation
* Discussion
E * Misleading information
* *U Allegation substantiation
Specific and deliberate agency advice to protester during negotiations that award ceiling would
include "specials," where agency intended to and did exclude such specials in order to determine
that the awardee's offer was within the ceiling, was misleading and improper.

Procurement
Contractor Qualification
* Responsibility
ME Financial capacity
* * * Contractors
Agency unreasonably downgraded protester under offeror qualifications criterion, the most impor-
tant technical evaluation factor, where the protester was evaluated as marginal substantially on
the basis of a financial report concerning an entity which was not a part of the offeror's limited
partnership or of its proposed team.

Page 49                                                                   Digests-October 1990
Procurement
Bid Protests
* GAO procedures
* * Preparation costs
* E * Attorney fees
Procurement
Competitive Negotiation
* Offers
E * Preparation costs
Where contracting agency improperly awarded a lease, but cancellation is not possible during the
base period because the lease does not contain a termination for convenience clause, the protester
is entitled to the costs of proposal preparation and of filing and pursuing its protest.

B-240029.2, et al., October 31, 1990                                            90-2 CPD 354
Procurement
Contractor Qualification
* Organizational conflicts of interest
* * Allegation substantiation
* * * Evidence sufficiency
Protest that a member of contracting agency's evaluation panel had an employment arrangement
with the eventual awardee and was biased against the protester is denied where, based on evi-
dence in record, including sworn affidavits and testimony at hearing on the record, and based on
General Accounting Office's (GAO) judgment as to the credibility of testimony, GAO decides that
record does not include clear evidence of bias or a conflict of interest.

Procurement
Competitive Negotiation
* Best/final offers
E * Evaluation
* * * Point ratings
M E- Propriety
Procurement
Competitive Negotiation
* Offers
E * Evaluation
E * * Downgrading
*II I Propriety
Agency evaluation and scoring of best and final offer (BAFO) that resulted in a deduction of points
from protester's score was deficient where evaluators unreasonably concluded that protester had
not offered required number of hours since evaluators reached that conclusion by relying on staff
hour analysis that was designated in best and final offer as "superseded" and ignored other sec-
tions of BAFO that set out correct staff hours.




Page 50                                                                  Digests-October 1990
Procurement
Competitive Negotiation
* Discussion
* * Adequacy
* * E Criteria
Contracting agency failed to conduct meaningful discussions with offeror where, prior to submis-
sion of best and final offers, agency evaluators were concerned about soon-to-be-retired active duty
military personnel proposed by offeror but failed to raise the matter in discussions.

B-240203, October 31, 1990                                                      90-2 CPD 361
Procurement
Small Purchase Method
* Quotations
* * Evaluation
* * * Technical acceptability
*B U Tests
Agency reasonably rejected the protester's quote on a small purchase request for quotations where
the quote took exception to the conditions of the first article testing requirement.

Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* * E 10-day rule
Protest that the awardee offered its own part number, instead of a requested part number, in a
small purchase request for quotations, is timely filed within 10 working days of the receipt of the
agency report, from which the protester was first apprised of the contents of the awardee's quote,
since the protest was initially filed within 10 working days of being apprised of the award, and the
protester had no further duty to obtain, under the Freedom of Information Act, a copy of the
awardee's quote, since this information was to be supplied with the agency report on the protest.

Procurement
Specifications
* Brand name specifications
* E Equivalent products
* * * Acceptance criteria
Agency may accept a quote under small purchase procedures from an approved source who identi-
fies the part by a manufacturer's part number, as requested by the request for quotations, where
this is the part number of the part previously delivered by this source.

B-240327, October 31, 1990
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* * * 10-day rule
Protest of agency rejection of protester's response to agency's Commerce Business Daily notice of
its intent to place a sole-source purchase order against a Federal Supply Schedule contract is
timely where protester (1) responded to notice within required 30-day time limit, (2) filed an

Page 51                                                                   Digests-October 1990
agency-level protest within 10 working days of receiving notice of its rejection as technically unac-
ceptable, and (3) thereafter filed a protest at the General Accounting Office within 10 working
days of its receipt of the denial of its agency-level protest.

Procurement
Noncompetitive Negotiation
* Contract awards
* * Sole sources
* E * Justification
* H U E Procedural defects
Contracting agency has not justified the sole-source purchase of computer equipment and periph-
erals where: (1) it rejected as technically unacceptable the protester's offer of equivalent equip-
ment, even though the protester submitted evidence that the offered equipment was completely
compatible and the agency gives no specific reasons why the protester's equipment is not compati-
ble; and (2) the agency stated that it would consider equivalent equipment upon expiration of the
agency's underlying computer system warranty, which expired shortly after award.

B-240856.2, October 31, 1990                                                     90-2 CPD 378
Procurement
Sealed Bidding
* Invitations for bids
* U Amendments
* * * Notification
Protester's contention that an amendment to a solicitation did not adequately place potential bid-
ders on notice of the changed bid opening date for the solicitation does not state a valid basis of
protest where the change in the bid opening date was clearly and reasonably apparent to any pru-
dent bidder.

B-241031.3, October 31, 1990                                                     90-2 CPD 355
Procurement
Bid Protests
* GAO procedures
E U GAO decisions
* * * Reconsideration
Request for reconsideration is dismissed where the issue was considered and denied in an earlier
protest involving the same parties.

B-241536, October 31, 1990
Procurement
Contractor Qualification
* Organizational conflicts of interest
E * Allegation substantiation
* * * Evidence sufficiency
Protest alleging conflict of interest involving agency consultant and awardee firm is dismissed
where allegations do not establish likelihood that awardee's alleged prospective employment of
consultant improperly influenced evaluation and award.


Page 52                                                                    Digests-October 1990
B-241660, October 31, 1990
Procurement
Bid Protests
* GAO procedures
* * Protest timeliness
* *E 10-day rule
Protest of cancellation of portion of solicitation is untimely where filed more than 10 days after
protester learned of cancellation.

Procurement
Bid Protests
* Moot allegation
* * GAO review
Protest of agency's treatment of protester during procurement is academic where agency canceled
the only portion of requirement for which protester was competing.

B-241683, October 31, 1990                                                         90-2 CPD 362
Procurement
Bid Protests
* Dismissal
* * Definition
Protest is dismissed for failure to state a valid basis of protest where protester does not allege that
rejection of offer as technically unacceptable was unreasonable or that award otherwise was im-
proper.




Page 53                                                                     Digests-October 1990
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