oversight

Digests of Decisions of the Comptroller General of the United States, Vol. II, No. 2

Published by the Government Accountability Office on 1990-11-01.

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

Current GAO Officials


Comptroller General of the United States
Charles A. Bowsher

Deputy Comptroller General of the United States
Vacant

Special Assistant to the Comptroller General
Milton   J. Socolar

General Counsel
James F. Hinchman

Deputy General Counsel
Vacant




Page i
Contents

                                          ...
Preface                                   111


Table of Decision Numbers                 iv

Digests
  Appropriations/Financial   Management     1
  Civilian Personnel                        3
  Military Personnel                        5
  Procurement                               9




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. $9 74 and 82d). Decisions concerning
claims are issued in accordance with 31 U.S. Code 0 3702 (formerly 31 U.S.C. 0
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-197290, November 14, 1990                                    1     B-239680.2, November 13,199O      23
B-224827.4, November 21, 1990                                 32     B-239848.3, November 29,199O      44
B-229337.3, November 7,199O                                    6     B-239859, November 13, 1990        3
B-230360, November 9, 1990%* *                                 7     B-239867.2, November 19,
B-230837, November 7, 1990                                    15     1990***                           28
B-232575, November 8, 1990                                     1     B-239886, November 9,199O          3
B-234937, November 9, 1990                                     1     B-239888, November 16,199O         4
B-235936, November 29, 1990                                    8     B-239995.2, November 27, 1990     37
B-236327.2, November 13,                                             B-240012.2, November 7, 1990      16
1990***                                                         3    B-240049, November 1,199O          5
B-237268.3, et al., November 7,                                      B-240134.5, November 28, 1990     41
1990                                                           15    B-240230, November 2, 1990        10
B-237554, November 2, 1990                                      5    B-240249, November 2, 1990        10
B-237767, November 6, 1990                                      5    B-240261, November 5, 1990        12
B-237975, November 23,1990***                                   7    B-240265, B-240265.2, November
B-238130, November 23, 1990                                     8    7, 1990                           17
B-238220.7, November 2, 1990                                    9    B-240268, November 5, 1990        12
B-238468.2, November 28, 1990                                  41    B-240290, November 2, 1990        10
B-238645.2, November 19,                                             B-240295, et al., November 6,
1990***                                                        27    1990                               13
B-238773.2, B-238773.3,                                              B-240309, November 7, 1990         17
November 19, 1990                                              28    B-240310, November 2, 1990         11
B-238877.3, November 7, 1990                                   15    B-240311, B-240311.2, November
B-238890.2, November 26, 1990                                  37    9,199o                            20
B-239121.3, November 13, 1990                                  23    B-240317, November 9, 1990        21
B-239141.2, November 5, 1990***                                11    B-240319, November 2, 1990        11
B-239154, November 30,199O                                      2    B-240321, et al., November 7,
B-239212.2, November 1, 1990                                    9    1990                              18
B-239252.3, November 28, 1990                                  41    B-240322, November 9, 1990***     22



**‘(notes        published   decisions) Cite published   decisions as 69 Comp. Gem-




Page        iv
Table of Decision Numbers




B-240333, November 9,1990***       22   B-240511, November 23, 1990***     34
B-240334, November 9,199O          22   B-240525, November 23, 1990***     35
B-240340, B-240344, November            B-240537, November 16, 1990        27
14, 1990                           25   B-240563. November 23. 1990        35
B-240343, November 7,199O          18   B-240597, November 23, 1990* * *   36
B-240351, B-240351.2, November          B-240602, B-240602.2, November
7,1990***                          18   28. 1990                           42
B-240357, November 8.1990***       20   B-240622, November 21, 1990        33
B-240369. November 1.1990           9   B-240625, November 27, 1990        38
B-240385, November 16, 1990        26   B-240630.2. November 19. 1990      30
B-240386, November 19, 1990        29   B-240643, November 27, 1990        39
B-240391.2. November 6. 1990       14   B-240655, November 27, 1990        39
B-240413, November 2,199O          11   B-240687. November 27. 1990        40
B-240420, November 13, 1990***     24   B-240695, B-240696, November
B-240421. November 9. 1990         22   23. 1990                           36
B-240422, November 14, 1990* * *   25   B-240731, November 28, 1990        42
B-240426, B-240426.4, November          B-240761, November 7, 1990          6
20. 1990***                        21   B-240839. November 9. 1990         23
B-240433, November 13, 1990        24   B-240865, November 28, 1990        42
B-240436, November 19, 1990        29   B-241045, November 7, 1990         19
B-240447. November 21. 1990        33   B-241206, November 13, 1990        24
B-240458. November 21. 1990        33   B-241299, November 7, 1990         19
B-240484, November 19, 1990***     29   B-241343. November 7. 1990          7
B-240488, November 28, 1990        42   B-241394.2, November 19, 1990      30
B-240489, November 27, 1990        38   B-241402.4, November 21, 1990      34
B-240494. November 5. 1990         13   B-241439.2, November 28, 1990      43
B-240499, et al., November 14,          B-241489, et al., November 19,
1990                               26   1990                               30
B-240506. November 21. 1990        33   B-241509.2, November 19, 1990      31




Page v
Table of Decision Numbers




B-241614.2, November 26, 1990   37   B-241801, November 7, 1990      20
B-241639, November 5, 1990      13   B-241908, November 23,199O      36
B-241732, November 7, 1990      19   B-241974, November 13,199O      25
B-241742, November 6, 1990      14   B-241983, November 20,199O      32
B-241791.2, November 27, 1990   40   B-241988.2, November 21, 1990   34
                                     B-241995, November 19, 1990     31




Page vi
Appropriations/Financial
Management


B-232575, November 8,199O
Appropriations/Financial Management
Accountable Officers
n Cashiers
n n Relief
n n n Illegal/improper      payments
n n n n Forgeries
U.S. Army offrcer is relieved of liability for the improper payments of checks on forged endorse-
ments made by subordinate cashiers where the officer maintained        and supervised an adequate
system of procedures designed to prevent such improper payments. The cashiers, having complied
with existing procedures, are also relieved of liability.  The loss resulted from criminal activity
over which the officer and cashiers had no control.


B-234937, November 9,199O
Appropriations/Financial Management
Accountable Officers
n Disbursing officers
n n Relief
n n n Illegal/improper payments
n H n w Substitute checks
Relief is granted Treasury disbursing official under 31 U.S.C. 9 3527(c) from liability for an errone-
ous payment resulting from the payee’s negotiation      of both the original and an inadvertently
issued second check. The disbursing official maintained and enforced an adequate system of proce-
dures and controls to avoid errors and there was no indication of bad faith or a lack of due care.


B-197290, November 14,199O
Appropriations/Financial Management
Claims By Government
n Illegal/improper payments
n n Waiver
n n H Statutory regulations
n n 4 H Amendments
The Waiver Acts (5 U.S.C. 9 5584, 10 U.S.C. $2774, and 32 U.S.C. 5 716) were amended by Public
Law 99-224, December 28, 1985, 99 Stat. 1741-1742, to permit waiver of collection of erroneous
payments of travel, transportation,  and relocation expenses and allowances made to or on behalf
of civilian employees or members of the uniformed services. The GAO’s waiver regulations in 4
C.F.R. Parts 91-93 are amended to reflect the statutory changes and to bring the regulations into
conformance with current administrative     practices. The amendment is in the form of a proposed
rule to be published in the Federal Register with a go-day period for comments.

Page 1                                                                   Digests-November        1990
AmwoDriationdFinancial                Management
Claims By Government
n Debt collection
H H Agency officials
H H n Authority
n n H n Waiver
Appropriations/Financial              Management
Claims By Government
H Illegal/improper payments
n n Waiver
n n n Statutory regulations
n n H n Amendments
The Civilian Personnel Waiver Act, 5 U.S.C. 9 5584 (1988), was amended by Public Law 100-702,
Nov. 19, 1988, 102 Stat. 4667, to extend waiver authority to employees of the judicial branch. The
Director, Administrative  Office of the United States Courts, is the agency head for this purpose
and is authorized to grant waiver up to $10,000. The GAO’s waiver regulations in 4 C.F.R. Parts
91-93 are amended to reflect the statutory amendment.


B-239154. November 30.1990
Appropriations/Financial Management
Accountable Officers
n Cashiers
n n Relief
n n n Illegal/improper     payments
n mmHFraud
U.S. Army Finance and Accounting Officer and subordinate cashier are relieved under 31 U.S.C.
$3527(c) for an improper payment made by cashing a fraudulently       endorsed check. The officer’s
standard operating procedures for cashing personal checks were adequate and appear to have been
followed by the cashier. The loss was the result of criminal activity beyond the control of either
the officer or subordinate cashier.




Page 2                                                                 Digests-November       1990
Civilian Personnel


B-239886, November             9,199O
Civilian Personnel
Relocation
H Residence transaction expenses
II n Broker fees
n n n Reimbursement
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-236327.2, November            13,1990***
Civilian Personnel
Compensation
n Overtime
n H Eligibility
q n n Travel time
The claims of four employees for compensatory time for travel are allowed where the employees
traveled to or returned from meetings or hearings which could not be scheduled or controlled ad-
ministratively within the meaning of 5 U.S.C. $5542@)(2)(B)(iv) (1988).


B-239859, November             13, 1990
Civilian Personnel
Compensation
n Overpayments
n 1 Debt collection
n n n Statutes of limitation
Civilian    Personnel
Compensation
n Overpayments
n n Error detection
H n n Debt collection
n H n H Waiver
Waiver of erroneous overpayments of pay to 25 Foreign Service Nationals is granted where all the
qualifications for waiver have been met and the employees were unaware they were being over-
paid. Since the waiver request was received in this Office within 3 years from the date of our prior
decision, 67 Comp. Gen. 457 (1988), which first definitely determined that they were overpaid, the
requirements   of the statute of limitations for waiver applications in 5 U.S.C. 3 5584(b)(2) (1988)
have been met.

Page 3                                                                  Digests-November       1990
B-239888, November             16,199O
Civilian Personnel
Relocation
W Residence transaction expenses
H n Loan origination fees
H W n Reimbursement
n n W W Amount determination
Transferred employee purchased a residence at new duty station and has furnished a statement by
the lender itemizing, on a percentage basis, the charges covered by the claimed loan origination
fee totaling $6,750. Employee states that the itemization does not include prepaid interest, points,
or a mortgage discount. The additional $4,750 amount claimed as a loan origination         fee ($2,000 (1
percent) was previously paid by agency) charged by the lender may not be paid since the listing
does not represent clear and convincing evidence as to the identity of the expenses actually in-
curred by the lender in arriving at the total loan origination      fee. Further, the statement by the
lender that the $6,750 loan origination    fee represents the rate customarily charged in the locality
of the residence, standing alone, is insufficient to establish the accuracy of that rate.




Page 4                                                                     Digests-November         1990
Military                   Personnel


B-240049, November            1,199O
Military Personnel

n   Dual compensation restrictions
H   n Overpayments
n   n n Debt collection
n   n n n Waiver
Army officer who retired on disability subsequently accepted employment with the U.S. Postal
Service but did not so advise the Army, with the result that he received $32,672.61 over the next
11 years in violation of the dual compensation law. Debt may not be waived, since at retirement
the officer signed a statement expressly taking personal responsibility for advising the Army of
any future dual status; should have known he was receiving full retired pay; and never attempted
to insure that his total compensation was appropriate and accurate.


B-237554, November            2, 1990
Military Personnel
Pay
n Family separation allowances
n n Eligibility
Navy personnel who served on duty on board a ship for a continuous period of more than 30 days
at a site away from its home port are entitled by statute to a Family Separation Allowance for
ship duty (FSA-8. The fact that they had been receiving an allowance for temporary duty away
from their duty station (FSA-T), which also has a 30-day requirement, while preparing the ship to
be commissioned, does not alter their statutory entitlement.


B-237767, November            6,199O
Militarv Personnel
Pay
n Survivor benefits
q H Annuity payments
n H q Eligibility
Claim for Survivor Benefit Plan annuity by widow who was convicted of involuntary        manslaugh-
ter in the accidental shooting of her husband may be paid, since the facts establish a lack of feloni-
ous intent on her part in connection with the shooting.




Page 5                                                                    Digests-November        1990
B-229337.3, November            7,199O
Militarv Personnel
Travel
n Advances
n n Overpayments
n n H Debt collection
n n n n Waiver
For waiver of a service member’s travel allowance debt to be proper, the member must have re-
ceived an erroneous travel advance that was spent in reliance on authorized, albeit erroneous,
travel orders. Service member’s travel allowance debt may not be waived when the record pro-
vides no evidence that the member was misinformed about the period of time he was allowed for
travel after separation.


Military     Personnel
Travel
n Advances
n n Overpayments
n n n Debt collection
n n n n Waiver
When a service member receives travel advances in excess of her actual entitlement,   waiver is not
appropriate in the absence of erroneous travel orders or authorization.


Military     Personnel
Travel
H Advances
n n Overpayments
n n n Debt collection
n n H n Waiver
Service member received a travel advance pursuant to a permanent change of station, and then
was unable to complete the travel due to an accident. Waiver of the balance of the advance not
spent is not appropriate since there is no evidence of erroneous travel orders or authorization.


B-240761, November           7,199O
Military Personnel
Pay
H   Overpayments
n   n Error detection
n   n n Debt collection
n   H n n Waiver
Claim for overpayment  to member upon separation from Navy may be waived where, under the
circumstances, the member could not reasonably have been aware he was receiving more than he
was entitled to.




Page 6                                                                 Digests-November       1990
B-241343, November           7,199O
Militarv Personnel
Pay
n Payroll deductions
n n Savings deposit
Military     Personnel
Pay
n Payroll deductions
n n Savings deposit
n n n Interest
Former Army member claims amounts deducted by allotment from his military earnings            in 1969
for deposit in the Uniformed Services Savings Deposit Program. Since the record shows       that the
amounts in fact were deducted pursuant to the member’s authorization;    the Army does      not sug-
gest that they were not deposited, but just were not entered under the member’s name;        and the
money was not withdrawn      previously, the claim, including interest as authorized by      statute,
should be paid.


B-230360. November           9.1990***
Military Personnel
Pay
n Reenlistment bonuses
n n Computation
Under an Air Force early separation program a group of first-term        enlisted members were re-
leased up to 5 months before their enlistments expired. Since these members were entirely free to
separate from the service, their previously obligated service may be regarded as having been ter-
minated. Therefore, when such a member reenlists immediately       rather than separates from the
service, the full period of the member’s reenlistment  may be counted as additional obligated serv-
ice under 37 U.S.C. 0 308(a)(l) for the purpose of computing the member’s selective reenlistment
bonus.


B-237975. November           23. 1990***
Military Personnel

n Overpayments
n n Error detection
H n H Debt collection
H n H n Waiver
Military     Personnel
Relocation
n Reimbursement
n n Payments
H H n Foreign currencies
n n n n Exchange rates
A Navy Captain who exchanged British pounds sterling, representing the proceeds from the sale
of his London home, for dollars at a Navy disbursing office is indebted to the United States for the
$29,000 overpayment he received as a result of the disbursing officer’s use of an erroneous curren-
cy exchange rate that violated the applicable provisions in the Navy Comptroller Manual.

Page 7                                                                  Digests-November       1990
B-238130, November             23,199O
Militarv Personnel

n Severance pay
n n Eligibility
After failing a military drug screening test, a member of the National Guard was reassigned to
another military specialty; lost his civilian technician position with the Guard for failure to main-
tain a military position compatible with the technician job; and was denied severance pay under
applicable law because he had been removed from the civilian position for cause. Since there is no
indication in the record that the determination      of removal for cause was arbitrary  or capricious,
denial of severance pay was proper.


B-235936, November             29, 1990
Military Personnel
Pay
n   Overpayments
n   n Direct payroll deposit
n   n n Debt collection
n   n n n Waiver
A former member of the Air Force was separated on August 20, 1984. After separation he received
two separate payments, each deposited directly to his bank account and each in the full amount of
his regular pay, resulting in an erroneous overpayment.   Waiver of the overpayment    represented
by the second deposit cannot be granted, because the former member should have been aware of
the likelihood that excess pay had been deposited to his account, since the bank notified him of
the amount of the two deposits made after separation, and because the two deposits combined
were more than double the amount of pay to which he was entitled.




Page 8                                                                    Digests-November        1990
Procurement


B-239212,2, November               1,199O                                            90-2 CPD 356
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Procurement
Contract Management
n Contract administration
n H Contract terms
n n n Compliance
n n n n GAO review
Request for reconsideration   of decision dismissing protest that awardee does not intend to comply
with solicitation requirement for a current production model is denied where solicitation did not
request technical proposals and thus, by submitting a price, awardee offered to provide items con-
forming to the solicitation’s requirements, one of which was that the item be a current production
model.

B-240369. November               1. 1990                                              90-2 CPD 357
Procurement
Bid Protests
n GAO procedures
n n Purposes
n q n Competition enhancement
General     Accounting Office (GAO) generally will not consider contention that agency should have
imposed     additional, more restrictive specifications in solicitation since GAO’s role in reviewing bid
protests    is to ensure that statutory requirements     for full and open competition are met, not to
protect    any interest a protester may have in more restrictive specifications.


B-238220.7, November                2,199O
Procurement
Bid Protests
n GAO procedures
q n GAO decisions
n n n Reconsideration
Decision denying protest that agency unreasonably made award at an excessive price is affirmed,
where protester produces no credible evidence that indicates the agency’s decision was unreason-
able.

Page 9                                                                      Digests-November        1990
B-240230, November            2,199O                                             90-2 CPD 358
Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Administrative discretion
Protest against an allegedly defective evaluation of a revised technical proposal is denied where
protester merely expresses its disagreement with four of the deficiencies found by the evaluators
and does not question the remaining 13 deficiencies.


Procurement
Competitive Negotiation
n Offers
n n Competitive ranges
n n n Exclusion
n n n n Administrative discretion
Agency properly eliminated     protester’s proposal from the competitive   range where discussions
leading the protester into the areas of its proposal in need of correction were conducted and the
resulting response was reasonably found to be technically unacceptable in three of four evaluation
areas; under these circumstances, agency was not required to conduct further discussions.


B-240249. November            2.1990
Procurement
Sealed Bidding
n Bids
n n Responsiveness
n n n Terms
n n n q Deviation
Where bidder’s intention not to supply all the components of electrical distribution     panelboards
required by the solicitation is clear from a cover letter submitted with the bid, as well as the bid-
der’s not pricing certain items on the bid schedule, the bid was properly rejected as nonresponsive,
even though agency’s project engineer may have told the protester that such a bid would be ac-
ceptable since the protester may not rely on such oral advice inconsistent with the solicitation
specifications.


B-240290. November            2. 1990
Procurement
Competitive Negotiation
n Offers
n n Evaluation errors
n n n Non-prejudicial allegation
Protest that damage caused by dropping furniture     bid sample while it was in agency control cre-
ated the deficiencies which ultimately    resulted in determination  of technical unacceptability is
denied where the record clearly demonstrates that evaluators were notified of damage and in-
structed to disregard deficiencies thereby caused, and the evaluation documents show that defi-
ciencies noted were not the result of damage.


Page 10                                                                 Digests-November        1990
B-240310. November           2.1990                                            ’ 90-2 CPD 359
Piocurement
Competitive Negotiation
n Contract awards
n n Pre-qualification
n n n Contractor personnel
n n n n Securitv clearances
Procurement
Competitive Negotiation
n Offers
n n Competitive ranges
n n n Exclusion
n n n n Administrative discretion
General Accounting Office will not object to the exclusion from competition of offeror whose em-
ployees lacked the top secret security clearance required for access to intelligence information and
would be unable to obtain the clearance in time for contract performance.


B-240319, November           2,199O                                              90-2 CPD 360
Procurement
Competitive Negotiation
n All-or-none offers
n n Acceptance
Agency properly awarded all solicitation    items to offeror proposing lowest total price where re-
quest for proposals did not prohibit all or none offers and offeror made its offer contingent upon
receipt of all items.

B-240413, November            2,lWO
Procurement
Competitive Negotiation
n Requests for proposals
n n Terms
n n n Risks
Protest that firm, fmed-price solicitation for family housing maintenance services subjects contrac-
tor to unreasonable risk due to requirement     for lump-sum price with no limitation on amount of
work that can be ordered under various tasks is sustained where lump sum pricing will serve
stated government purpose only at unreasonable cost to both the contractor and the government
and imposes unreasonable risk on the contractor; pricing scheme thus unduly restricts competi-
tion.


B-239141.2, November            5, 1990***                                       90-2 CPD 363
Procurement
Specifications
n Minimum needs standards
n n Total package procurement
n n n Propriety
An agency’s decision to procure its immediate minimum need for modification     kits and associated
engineering services to upgrade jet engines on a total package basis rather than break out compo-
nents for separate competitive procurements   will not be disturbed where the agency reasonably

Page 11                                                                 Digests-November       1990
determined that due to the magnitude and complexity of the upgrade program the purchase of the
kits and engineering services on a total package basis is essential to maintain standardization and
configuration control of the parts


Procurement
Noncompetitive Negotiation
n Use
n n Approval
n n n Justification
Protest that noncompetitive  procurement  is improper because it resulted from lack of advance
planning is denied where record shows that agency’s decision to procure on a sole-source basis was
reasonable.


B-240261. November            5.1990
Procurement
Competitive Negotiation
n Requests for proposals
n n Terms
n n n Interpretation
Under request for proposals (RFP) for automated package dimensioning and weighing subsystems,
protester’s interpretation of provision calling for standard commercial “components” as restricted
to existing “systems” is not reasonable.


B-240268, November            5,199O                                               90-2 CPD 364
Procurement
Competitive Negotiation
n Contract awards
n W Administrative discretion
m n n Cost/technical tradeoffs
n n n n Technical superiority
Award to offeror having higher-cost, technically  superior proposal under request for proposals
which gave greater weight to technical merit compared with cost is justified where contracting
agency reasonably determined that acceptance of the proposal was worth the higher cost.


Procurement
Sealed Bidding
n Bids
n n Evaluation
n n n Point ratings
Point scores are useful only as guides to decision making and are generally not controlling       in a
selection decision because they often reflect the disparate subjective judgments of evaluators.




Page 12                                                                  Digests-November         1990
B-240494, November            $1990                                                90-2 CPD 365
Procurement
Specifications
n Brand name/equal specifications
n n Salient characteristics
n n n Descriptive literature
Where a brand name or equal solicitation required submission of descriptive literature       sufficient
to establish that the offered product conforms to the salient characteristics    and bidders were ad-
vised that failure to do so would require rejection of their bids, the procuring agency properly re-
jected as nonresponsive a bid that included descriptive literature    which failed to address two sa-
 lient characteristics.


B-241639, November            5,199O                                               90-2 CPD 366
Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Technical acceptability
Agency properly rejected protester’s offer for aircraft parts where protester, which had successful-
ly performed prior contracts with the agency and for which first article testing for this procure-
ment had been waived, failed to timely submit a technical proposal as required by the solicitation.


B-240295, et al., November              6.1990
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
W n n IO-day rule
Protests that contract modifications at substantial price increase were beyond the scope of the
original contract and constituted an unjustified   sole-source procurement, are timely where filed
within 10 working days of when the protesters first learned the amount of the price increase.


Procurement
Contract Management
W Contract modification
n n Cardinal change doctrine
n n n Criteria
n n W n Determination
Modifications which involve substantial    cost and affect first article test requirements, delivery
schedule, and performance specifications do not constitute a cardinal change where the nature
and purpose of the original contract as well as the field of competition remain unchanged.




Page 13                                                                   Digests-November        1990
B-240391.2. November               6.1990                                              90-2 CPD 367
Procurement
Bid Protests
W Allegation substantiation
n W Lacking
n n W GAO review
Procurement
Bid Protests
W GAO procedures
n W Purposes
W W H Competition enhancement
Protest is dismissed for failure to state a valid basis of protest where protester seeks General Ac-
counting Office (GAO) to direct a sole-source award, change the Standard Industrial Classification
Code in a solicitation or direct that a procurement be changed frum a Section 8(a) set-aside to an
unrestricted acquisition, since these are forms of relief that GAO does not grant.


B-241742. November              6.1990                                                 90-2 CPD 368
Procurement
Contractor Qualification
n Responsibility
W W Contracting officer findings
W W W Affirmative determination
n 4 n n GAO review
Protest that awardee’s price is unreasonably      low is dismissed      as essentially a challenge against
contracting   officer’s affirmative determination  of responsibility,    which General Accounting Office
will not review absent circumstances not present here.


Procurement
Bid Protests
W Antitrust matters
W n GAO review
General Accounting Office does not consider allegations of predatory           pricing in violation of the
Robinson-Patman    Act because that Act is not applicable to government        contracts and violations of
antitrust laws are within the jurisdiction of the Department of Justice.




Page 14                                                                       Digests-November        1990
B-230837, November             7,199O
Procurement
Payment/Discharge
4 Shipment
n n Tenders
n n n Terms
W n n W Interpretation
Procurement
Payment/Discharge
n Shipment costs
W W Rate schedules
W 4 n Applicability
Where carrier’s rate tender for “Freight All Kinds” specifies a less truckload minimum charge or
class rate, the tender is complete and unambiguous on its face, and a limitation      of liability provi-
sion for a specific item in the governing classification cannot be incorporated by reference into the
tender unless there is a clear and unambiguous statement in the tender making such an incorpo-
ration. Since the Department of Defense’s new Freight Traffic Rules Publication Number 1, effec-
tive October 1, 1986, was not incorporated into the carrier’s applicable rate tender, and since Pub
lication Number 1 did not otherwise apply, a limitation        of liability provision for “Freight    All
Kinds” shipments in Publication      Number 1 did not apply to shipments under the carrier’s rate
tender.


B-237268.3, et al., November               7,199O                                      90-2 CPD 369
Procurement
Bid Protests
n GAO procedures
n W GAO decisions
W W n Reconsideration
General Accounting Office will not     consider new arguments raised by agency in request for recon-
sideration where those arguments      are derived from information    available during initial consider-
ation of protest but not submitted,     since parties that withhold or fail to submit all relevant evi-
dence, information, or analyses for   our initial consideration do so at their own peril.

Procurement
Bid Protests
n GAO procedures
H H GAO decisions
n W H Reconsideration
Request for reconsideration   is denied where procuring   agency fails to establish   any factual   or legal
errors in decision sustaining protest.

B-238877.3, November             7,199O
Procurement
Sealed Bidding
H Below-cost bids
n H Acceptance
It is not legally objectionable for a firm, in the exercise of its business judgment, to submit a
below-cost bid, and a contracting officer may accept such a bid so long as the firm is responsible
and capable of performing the contract at the price it bid.

Page 15                                                                    Digests-November            1990
Procurement
Bid Protests
n Antitrust matters
n n GAO review
Procurement
Bid Protests
n Forum election
W W Recommendations
A single instance of alleged below-cost bidding does not evidence an intent by a firm to undercut
the prices submitted by its competitors in order to monopolize contract awards for the particular
item. Further, the proper forum for consideration of possible monopolistic practices is the Depart-
ment of Justice, not the General Accounting Office.


Procurement
Bid Protests
n GAO procedures
H H Protest timeliness
W n W lo-day rule
Protester who waits more than 5 weeks, after it was notified of award and after filing initial prc-
test, to submit Freedom of Information   Act request for information   concerning possible additional
grounds of protest, has failed to diligently  pursue such information,     and second protest subse-
quently filed is therefore untimely.


B-240012.2. November            7.1990                                            90-2 CPD 370
Procurement
Bid Protests
W GAO procedures
W W GAO decisions
W W H Reconsideration
Request for reconsideration is denied where request contains no statement of fact or legal grounds
warranting  reversal but merely restates arguments made by the protester and previously consid-
ered by the General Accounting Office.


Procurement
Bid Protests
n GAO procedures
W W GAO decisions
W n n Reconsideration
Request for reconsideration   is denied when based on an argument     that could have been but was
not raised by protester in course of the original protest.




Page 16                                                                 Digests-November        1990
      B-240265, B-240265.2, November                   7,199O                              90-2 CPD 371
      Procurement
      Contractor Qualification
      n Organizational conflicts of interest
      n n Allegation substantiation
      n n n Evidence sufficiency
      Protest of alleged conflict of interest resulting from the agency project officer’s prior affiliation
      with the awardee’s proposed subcontractor     is denied where the project officer’s affiliation occurred
      3 years ago and the record does not show that any improper influence was exerted in procurement
      on behalf of awardee.


    L Procurement
      Competitive Negotiation
      n Discussion
      n n Bad faith
      n n n Allegation     substantiation
      Protest that agency’s prejudicial questions-during    discussions and an agency site visit-violated
      prohibitions against technical leveling, auctions, and improperly  altered the evaluation criteria is
      denied where record shows that agency asked questions in an effort to alert the protester to deli-
      cient areas of its technical proposal.


      Procurement
      Competitive Negotiation
      n Discussion
      n H Adequacy
      n n n Criteria
      Protest that agency failed to conduct meaningful discussions is denied where protester’s proposal
      was considered acceptable and in the competitive range, and where agency’s questions were suff-
      cient to direct protester to areas of its proposal which could have used strengthening.


      B-240309, November             7, 1990                                               90-2 CPD 372
      Procurement
      Sealed Bidding
      n Bids
      n n Responsiveness
,     n n q Ambiguous prices
      Bid for refuse collection and disposal is ambiguous as to intended price, and therefore was proper-
      ly rejected as nonresponsive, where bid contained notation that prices for base period of required
.     services were “based on dumping fees of $26 per ton.”




      Page 17                                                                    Digests-November        1990
B-240321, et al., November             7,199O                                     90-2 CPD 373
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation      improprieties
Protests that proposed awardee’s bid is unbalanced will not be considered where the protests con-
stitute untimely challenge to solicitation’s lack of straight time and overtime estimates for line
items.


Procurement
Sealed Bidding
n Unbalanced bids
n n Allegation substantiation
n n n Evidence sufficiency
A bid in which the bidder submitted high prices for straight time services as opposed to overtime
services was properly rejected as unbalanced where agency had reasonable doubt that bid repre-
sented lowest ultimate cost to the government.


B-240343, November            7,199O                                               90-2 CPD 374
Procurement
Contractor Qualification
n Responsibility
n n Information
n n n Submission time periods
Protest alleging that bid was nonresponsive because it did not contain required information       con-
cerning whether bidder entered into a third party indemnification     agreement in order to obtain
bonds required by solicitation is denied. The information does not relate to the bidder’s obligation
to perform in accordance with the material terms and conditions of the solicitation, and therefore
can be furnished any time before award.

Procurement
Contractor Qualification
n Responsibility/responsiveness       distinctions
Requirement concerning the submission of information      unrelated to the material terms and condi-
tions of the solicitation, and thus unrelated to the bidder’s performance obligation, cannot be con-
verted into a matter of responsiveness merely by the terms of the solicitation.


B-240351, B-240351.2. November                   7.1990***                         90-2 CPD 375
Procurement                                                                                              *
Competitive Negotiation
n Offers
n n Organizational experience
n n n Subcontractors
n n n W Evaluation
Protest challenging determination  not to evaluate subcontractor experience under corporate expe-
rience criterion is denied where request for proposals (RFP) did not provide for inclusion of sub-

Page 18                                                                  Digests-November        1990
    contractor’s experience under corporate experience and it was necessary for the contractor to      pos-
    sess relevant corporate experience in order to assure satisfactory performance of the contract.


    Procurement
    Competitive Negotiation
    n Offers
    nn Competitive ranges
    nn n Exclusion
    nn n n Administrative discretion
    Competitive range of one is unobjectionable where agency reasonably determined that due to ini-
    tial substantial scoring and price differential the excluded firms lacked a reasonable chance for
    award.


    B-241045, November            7,199O
    Procurement
    Bid Protests
    n GAO procedures
    n n Interested parties
    n n n Subcontractors
    Protest filed by a prospective subcontractor/supplier     to a prime contractor is dismissed since the
    protester is not an interested party eligible to have its protest considered under the Competition in
    Contracting Act of 1984 and the General Accounting Office’s implementing          Bid Protest Regula-
    tions.


    B-241299, November            7,199O                                               90-2 CPD 376
    Procurement
    Bid Protests
    n GAO procedures
    n n Protest timeliness
    n q n Apparent solicitation      improprieties
    General Accounting Office will not consider protest of an alleged solicitation    impropriety   because
    protester did not timely file with the agency prior to bid opening its initial     protest of the same
    solicitation impropriety.

    B-241732, November            7,199O                                               90-2 CPD 377
    Procurement
    Sealed Bidding
    n Below-cost bids
    n n Acceptance
    Submission and acceptance of below-cost bid is not legally objectionable.

.   Procurement
    Socio-Economic Policies
    q Small business set-asides
    n BUse
    q n q Administrative discretion
    Since the basis for setting a procurement aside for small businesses is the reasonable expectation
    that offers will be obtained from at least two responsible small business concerns, the number of

    Page 19                                                                     Digests-November      1990
small business firms that actually submitted bids is not relevant to the propriety of the agency’s
initial determination not to set aside the procurement for exclusive small business participation.


B-241801. November           7.1990                                              90-2 CPD 379
Procurement
Socio-Economic Policies
n Small businesses
n n Disadvantaged business set-asides
n n n Preferences
n n n n Eligibility
A small disadvantaged business (SDB) dealer that proposed to supply end items manufactured     by a
large business is not entitled to the solicitation’s SDB evaluation preference.


B-240357, November            8,1990***                                          90-2 CPD 380
Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Point ratings
Under solicitation   for design and construction  of a commissary, evaluation and assignment of
points for innovative design features is proper, notwithstanding  solicitation’s general description
of desired commissary as one operated and designed under standards similar to those found in
commercial food stores, where solicitation provided that offerors would receive quality points for
innovative or creative proposals and there is no language in the evaluation criteria requiring that
design features meet only commercial food store standards.


Procurement
Competitive Negotiation
n Contract awards
n n Administrative discretion
n n n Cost/technical tradeoffs
n n n n Technical superiority
Where solicitation provided that the lowest priced offeror would not necessarily receive award,
and that the award would be based on the combination of technical merit and price which is most
advantageous to the government, agency properly awarded to higher priced offeror since agency
reasonably determined that the technical advantage associated with higher-rated proposal war-
ranted the price premium.


B-240311. B-240311.2. November                 9.1990                            90-2 CPD 381
Procurement
Competitive Negotiation                                                                                .
n Offers
n n Evaluation
n n n Technical acceptability
Protester is an interested party under Bid Protest Regulations to protest alleged improper evalua-
tion of its proposal, even though the challenged evaluation ranked the protester’s proposal fifth
overall, because the protester has a chance of being awarded the contract if the protest is sus-
tained and the protester’s proposal is reevaluated.


Page 20                                                                 Digests-November       1990
Procurement
Competitive Negotiation
n Offers
W 1 Evaluation errors
n W n Evaluation criteria
n W W n Application
Protest that an agency improperly evaluated protester’s and awardee’s proposals is denied where
review of the agency’s evaluation documentation     shows that the agency’s scoring of the proposals
was reasonable and related to the solicitation’s stated evaluation criteria.


Procurement
Bid Protests
H GAO procedures
W W Protest timeliness
n n H lo-day rule
Protest that an agency failed to conduct meaningful    discussions is untimely under the General
Accounting Offrice Bid Protest Regulations when it was first filed in the postconference comments,
more that 10 working days after the protester learned the basis of protest.


Procurement
Competitive Negotiation
n Contract award notification
n n Procedural defects
Even where an agency fails to give required pre-award notice of award to allow size protest, the
General Accounting Office will not find the award improper unless a timely postaward size protest
was filed and the awardee was found to be other than small.


B-240317. November            9.1990                                              90-2 CPD 382
Procurement
Competitive Negotiation
W Offers
W H Competitive ranges
n W 4 Exclusion
n n W n Administrative discretion
Procurement
Competitive Negotiation
W Offers
n W Evaluation
n H H Technical acceptability
Procuring agency reasonably determined that the protester’s proposal was technically unaccept-
able and not in the competitive range in a procurement for utility rate expert services, where the
protester’s proposal did not indicate that it had the required utility services experience or that it
had available personnel to perform the contract.




Page 21                                                                 Digests-November        1990
B-240322, November            9,1990***                                            90-2 CPD 383
Procurement
Competitive Negotiation
W Offers
W n Evaluation
n W n Rates
W W n n Mileage
Where solicitation provides that offerors’ rates will be adjusted based on mileage determined by
the Installation   Transportation Officer (ITO) to reflect cost of roadmarch of a large convoy trans-
porting tanks, trucks, and other heavy military equipment between Army base and offeror’s rail-
road terminal, the IT0 reasonably determined the protester’s mileage on the basis of a four-lane
interstate highway route which the IT0 selected based on safety considerations.       The agency was
not required to calculate the mileage based on a shorter state highway route which the IT0 con-
sidered less safe.


B-240333, November            9.1990***                                            90-2 CPD 384
Procurement
Competitive Negotiation
W Contract awards
W W Initial-offer awards
H H m Propriety
Contracting  agency conducting an urgent procurement      under the authority of the Competition in
Contracting Act of 1984, 10 U.S.C. 8 2304(c)(2) (1988), may make award on the basis of initial pro-
posals whether or not such award represents the lowest overall cost to the government.


B-240334, November            9,199O                                               90-2 CPD 385
Procurement
Competitive Negotiation
W Requests for proposals
W W Terms
W n n Compliance
Protest that awardee failed to literally comply with solicitation experience requirements is denied
where record discloses that no proposal, including the protester’s, literally met the requirements
and where the agency had sufficient information   from the awardee upon which it could reasonably
conclude that the firm’s experience was equivalent to what was required.


B-240421, November            9,199O                                               90-2 CPD 386
Procurement
Bid Protests
n Allegation substantiation
W n Lacking
n n n GAO review
Where solicitation   provides for the possibility of a waiver of the statutory cost limitation  on im-
provements on military family housing units, and such waiver is authorized by statute and regula-
tion, challenge to agency’s authority to request waiver fails to state a valid basis of protest under
Bid Protest Regulations.


Page 22                                                                  Digests-November        1990
Procurement
Bid Protests
n Premature allegation
n n GAO review
Protest that statements submitted by the agency in its request to the Under Secretary of Defense
for a waiver of statutory cost limitation on improvements    on military family housing do not state
the necessary grounds and are insufficient    to justify a waiver is premature because no decision
concerning the waiver has been made and no contract has been awarded.


B-240839. November            9. 1990                                              90-2 CPD 387
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation      improprieties
Protest that agency performed inadequate evaluation of total contract cost for award purposes is
dismissed as untimely where basis of protest concerns method of cost calculation announced in
solicitation, but matter was not protested until after closing date for receipt of proposals.


B-239121.3, November             13,199O                                            90-2 CPD 388
Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Technical acceptability
Agency reasonably found protester’s proposal unacceptable where financing plan contained in its
business proposal took exception to material terms of the solicitation       and therefore did not evi-
dence, as required by the solicitation, the financial ability of the protester to perform the work in
manner required by the RFP.


B-239680.2, November             13, 1990                                           90-2 CPD 389
Procurement
Bid Protests
4 GAO procedures
n n GAO decisions
n n n Reconsideration
Request for reconsideration    is denied where protester makes no showing      of any legal error   and
claimed factual errors fail to provide a basis for reversal of the decision.




Page 23                                                                   Digests-November          1990
B-240420, November             13,1990***                                           90-2 CPD 390
Procurement
Bid Protests
n Prime contractors
n n Contract awards
n n n Subcontracts
n n n n GAO review
Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Technical acceptability
Department    of Energy prime contractor reasonably determined that the protester’s low-priced, al-
ternate proposal to produce coils for dipole magnets to be incorporated      in an electron accelerator
was technically unacceptable where the contractor found the alternate product may be less reli-
able and more risky and the protester did not provide sufficient documentation,       even after discus-
sions and a site visit, to demonstrate the acceptability of its alternate product.


Procurement
Competitive Negotiation
n Discussion
n n Adequacy
n n n Criteria
Department of Energy prime contractor was not obligated to provide the protester with all specific
information  or data needed to establish the acceptability of its proposal of an alternate proprietary
product; prime contractor satisfied its obligation to conduct meaningful        discussions by repeated
discussions requesting information   to establish the acceptability  of the alternate proprietary  prod-
uct.


B-240433. November             13.1990                                               90-2 CPD 391
Procurement
Sealed Bidding
n Bids
n n Responsiveness
n n n Price omission
Protest that agency improperly rejected protester’s bid for failure to include a price for work that
was not required by the solicitation is denied where reasonable reading of the solicitation indicates
that the work was required.


B-241206, November             13,199O                                               90-2 CPD 392
Procurement
Bid Protests
n GAO procedures
n n Interested parties
n n n Direct interest standards
Protest by firm not in line for the award if the protest were sustained is dismissed, since the pro-
tester does not have the requisite direct economic interest in the contract award to be considered
an interested party under General Accounting Office Bid Protest Regulations.

Page 24                                                                    Digests-November        1990
B-241974, November             13,199O                                               90-2 CPD 393
Procurement
Contractor Qualification
n Licenses
n n State/local laws
n n n GAO review
Protest that awardee and other bidders did not possess required state licenses at time of bid open-
ing is dismissed; a contractor’s compliance with a state licensing requirement      is a matter for reso-
lution by the contractor and the state or local authorities, not by federal officials.


B-240340, B-240344, November                   14,199O                               90-2 CPD 395
Procurement
Sealed Bidding
n Bid guarantees
n n Responsiveness
n n n Sureties
n n n n Liability restrictions
Protester’s bids were properly rejected as nonresponsive where the bids contained commercial bid
bond forms which may not hold the surety liable for the protester’s failure to furnish payment
bonds.


Procurement
Sealed Bidding
n Bid guarantees
n n Post-bid opening periods
n n q Submission
n n n n Responsiveness
Since the Buy Indian Act does not require an agency to accept a nonresponsive bid on an invita-
tion for bids (J.FB) set aside under that Act, a low bidder which did not submit an acceptable bid
bond by bid opening was properly rejected as nonresponsive under an IFB provision “may” be
cause for rejection.


B-240422, November             14,1990***                                            90-2 CPD 396
Procurement
Bid Protests
n GAO procedures
n n Interested parties
W n n Direct interest standards
Protester is not an interested party eligible to challenge agency’s failure to include evaluation
preference clauses favoring small disadvantaged businesses (SDB) in a partial small business set-
aside where it would not be in line for award even if the SDB evaluation preferences were applied
and its protest were sustained.




Page 25                                                                    Digests-November         1990
B-240499, et al., November              14,199O                                     90-2 CPD 397
Procurement
Bid Protests
H GAO procedures
n n Protest timeliness
n n n lo-day rule
Where Commerce Business Daily (CBD) notices announcing           agency’s plans to make sole-source
awards gives other potential sources 45 days to submit expressions of interest showing their capa-
bility to respond to agency’s requirements,   potential offerors must, as a prerequisite to filing pro-
tests challenging  the sole-source decisions, submit timely expressions of interest in response to
CBD notices. Where protester waited anywhere from approximately           four to thirteen months to
submit expressions of interest in response to respective CBD notices, protests are dismissed as un-
timely.


B-240385, November             16,199O                                               90-2 CPD 398
Procurement
Competitive Negotiation
n Contract awards
n n Administrative discretion
n n n Cost/technical tradeoffs
n n n n Cost savings
Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Technical acceptability
Agency properly awarded contract to low, technically acceptable, responsible offeror where pro-
tester’s allegations that awardee’s proposal failed to meet certain solicitation specifications are not
supported by the record.


Procurement
Contractor Qualification
n Responsibility
n n Contracting officer findings
n n n Affirmative determination
n n n n GAO review
Where solicitation      requires the acquisition of necessary approvals and permits by the awardee,
this is ordinarily     a performance requirement    encompassed in a contracting  officer’s affirmative
responsibility    determination,   which is not subject to review by the General Accounting       Office
except in limited circumstances not present here.




Page 26                                                                    Digests-November        1990
B-240537, November            16,199O                                             90-2 CPD 399
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
Where protester offered cost-sharing arrangement    for equipment in its alternate cost proposal that
was not permitted by solicitation, protester was on constructive notice that agency would not con-
sider its alternate cost proposal when agency issued request for best and final offers (BAFO) that
did not provide other offerors the opportunity    to propose cost-sharing or similar arrangements,
and protest filed several weeks after request for and receipt of BAFOs is untimely.


B-238645.2, November            19,1990***                                        90-2 CPD 400
Procurement
Competitive Negotiation
n Offers
n n Evaluation errors
n n n Allegation substantiation
A protest against agency’s allegedly improper evaluation     of proposals is without merit where
review of the evaluation provides no basis to question the reasonableness of the determination
that based on the solicitation evaluation formula, the awardee’s proposal offered the combination
of technical and price most advantageous to the government.


Procurement
Competitive Negotiation
n Discussion
n n Adequacy
n n n Criteria
Where an agency advised offerors in the competitive range of all technical and cost concerns and
gave the offerors an opportunity   to revise their proposals based on these concerns, agency has sat-
isfied the requirement    that meaningful    discussions be conducted. Even if an offeror’s price is
higher than the other offeror’s price, the agency is not required to advise the high offeror of this
fact if there is no indication that the agency found the high offeror’s price to be unreasonable.


Procurement
Competitive Negotiation
q Offers
n n Evaluation
n q n Point ratings
Protest that agency failed to follow stated evaluation methodology by using penalty points and
bonus points in its actual scoring is denied since the solicitation  advised offerors of the broad
method of scoring to be employed and gave reasonably definite information     concerning the rela-
tive importance of evaluation factors. The precise numerical weights in an evaluation need not be
disclosed.




Page 27                                                                 Digests-November        1990
Procurement
Competitive Negotiation
n Offers
n W Evaluation errors
n n n Allegation substantiation
Protest that agency relaxed certain solicitation requirements for the awardee is denied where
record shows that the agency allowed both the protester and the awardee to make certain minor
software and hardware changes to their products and nothing in the solicitation precluded such
changes.


B-238773.2, B-238773.3, November                     19,199O                         90-2 CPD 401
Procurement
Bid Protests
n GAO procedures
W n GAO decisions
W n H Reconsideration
Procurement
Competitive Negotiation
n Requests for proposals
n W Amendments
W W n Evaluation criteria
W n 1 H Modification
Solicitation’s delivery schedule is a material requirement,     and a change in this requirement   must
be communicated      to all offerors since a relaxation of this material term potentially could lead of-
ferors to reduce their prices.


B-239867.2. November             19.1990***                                          90-2 CPD 402
Procurement
Bid Protests
W GAO procedures
W n Protest timeliness
W W n Apparent solicitation       improprieties
Protest challenging the application of the new individual surety regulations to the procurement is
dismissed as untimely where protester did not protest this application within 10 working days of
learning agency intention to apply the new regulations.


Procurement
Sealed Bidding
H Bid guarantees
W n Sureties
W H W Acceptability
Protester properly was found nonresponsible       where sureties pledged assets which are unacceptable
under the current regulatory requirements.




Page 28                                                                     Digests-November       1990
B-240386, November            19,199O                                                90-2 CPD 403
Procurement
Competitive Negotiation
W Offers
n n Evaluation
H n W Point ratings
Where solicitation for travel management services calls for award to be made to         the responsible
offeror whose offer conforms to the solicitation and is most advantageous to the        government,      in
accordance with the listed technical evaluation factors, and provides for additional       consideration
of general and specific enhancements, the agency may properly take into account          specific, albeit
not expressly identified, enhancements that are logically encompassed by or related       to stated eval-
uation criteria.


Procurement
Competitive Negotiation
n Offers
W n Evaluation ratings
n n n Point ratings
Where protester and awardee both meet all requirements           of the solicitation, agency reasonably
awarded contract for travel services to the offeror proposing    the most enhancements.


B-240436, November             19,199O                                               90-2 CPD 404
Procurement
Socio-Economic Policies
n Small businesses
H q Disadvantaged business set-asides
n H n Preferences
H n n n Eligibility
Protest that agency was required to apply small disadvantaged business @DE) evaluation prefer-
ence in protester’s favor in accordance with solicitation’s  inadvertently  included SDB preference
clause is denied where the procurement     was conducted on an unrestricted      basis pursuant to the
Small Business Competitiveness Demonstration       Program Act of 1988, 15 U.S.C. 5 644 note (19881,
and the agency regulatory implementation     of the Act prohibits the application of the SDB prefer-
ence where a procurement     falls under the demonstration    program and where the protester had
reasonable notice from the solicitation   and applicable regulations that the small disadvantaged
business evaluation preference would not be applied.


B-240484, November             19.1990***                                            90-2 CPD 405
Procurement
Bid Protests
n GAO procedures
n W Protest timeliness
n n q lo-day rule
n n W W Certified mail
A bid is late when received 6 days after the time      set for opening in a contracting offke in Guam,
even though it was sent by certified mail at least     5 calendar days before the specified bid opening
date, since the certified mail exception to the late   bid rule is not applicable where bids are submit-
ted outside the 50 states of the United States, the    District of Columbia and Canada.

Page 29                                                                     Digests-November          1990
B-240630.2, November             19,199O                                           90-2 CPD 406
Procurement
Bid Protests
n GAO procedures
W H GAO decisions
H H W Reconsideration
Request for reconsideration    of dismissal of protest alleging that solicitation was improperly issued
as a negotiated procurement      is denied where, after filing of protest, agency agreed with the pro-
tester and canceled the solicitation. Although the protester’s requested relief was for the agency to
correct the deficiency by amending the solicitation to change the procurement        method from nego-
tiated to sealed bid, corrective action taken by the agency to cancel the solicitation was reasona-
ble.


Procurement
Bid Protests
W GAO procedures
H n Preparation costs
Claim for protest costs where agency took corrective action remedying alleged procurement defect
in response to protest is denied since award of protest costs is contingent upon issuance of decision
on merits finding that agency violated a statute or regulation in the conduct of a procurement.


B-241394.2, November             19,199O                                           90-2 CPD 407
Procurement
Bid Prutests
1 GAO procedures
W W GAO decisions
W W W Reconsideration
Request for reconsideration of decision dismissing protest of agency’s failure to furnish incumbent
contractor with copy of solicitation   and to set procurement   aside for small business is denied
where request does not allege any error of fact or law in prior decision or offer new information
that would warrant reversal or modification of decision.


B-241489, et al., November              19,199O                                    90-2 CPD 408
Procurement
Bid Protests
W GAO procedures
W W Interested parties
W 4 n Suspended/debarred        contractors
Where the contracting     agency initiates debarment    proceedings against the protester, it is no
longer an interested party eligible to maintain a protest under our Bid Protest Regulations.




Page 30                                                                   Digests-November        1990
B-241509.2. November             19.1990                                           90-2 CPD 409
Procurement
Bid Protests
n GAO procedures
n W GAO decisions
n n W Reconsideration
Procurement
Bid Protests
n GAO procedures
n W Protest timeliness
n H n IO-day rule
n W I n Adverse agency actions
Request for reconsideration  of dismissal of protest as untimely is denied; alleged lack of sufficient
information  about denial of agency-level protest does not excuse protester’s failure to file protest
at General Accounting Office within 10 days of notification     of adverse agency action as required
by Bid Protest Regulations.


B-241995, November            19.1990                                              90-2 CPD 410
Procurement
Bid Protests
n GAO procedures
R H Protest timeliness
n W 4 Apparent solicitation      improprieties
Protest challenging the rejection of offer as technically unacceptable is untimely when filed more
than 10 working days after receipt of agency letter stating reasons for rejecting offer.


B-240426, B-240426.4, November                   20,1990***                        90-2 CPD 411
Procurement
Competitive Negotiation
n Offers
n W Evaluation
n H H Technical acceptability
Procurement
Contract Management
n Contract administration
q W Domestic products
n W n Compliance
n n W n GAO review
Where solicitation specification requires that offered product be one of a manufacturer’s    current
models, proposal to provide a product which will require major modifications        to meet domestic
content provisions of solicitation should have been rejected as technically unacceptable.




Page 31                                                                   Digests-November        1990
B-241983, November              20,199O                                             90-2 CPD 412
Procurement
Bid Protests
n GAO procedures
n n Interested parties
n n W Subcontractors
Procurement
Bid Protests
W GAO procedures
W n Interested parties
W n W Suppliers
Protest filed by a prospective subcontractor/supplier     to potential prime contractors is dismissed
since the protester is not an interested party eligible to have its protest considered under the Com-
petition in Contracting Act of 1984 and the General Accounting Office’s implementing       Bid Protest
Regulations.


B-224827.4, November              21,199O
Procurement
Payment/Discharge
n Shipment
n n Carrier liability
n n W Amount determination
Where correction notice to government      bill of lading, providing for a stated lump sum released
valuation, is mailed to carrier and delivered to carrier’s agent prior to shipment, and freight bills
and bills of lading accompanying shipment reflect release of shipment based on a lump sum valu-
ation, the carrier’s maximum liability for loss or damage to the shipment is contractually     set at
the amount of the lump sum valuation.


Procurement
Payment/Discharge
H Shipment
n n Carrier liability
n n n Amount determination
The government,    in recovering under a contract with a carrier for loss or damage to a service
member’s household goods, is not limited in recovery to the amount it paid to the member under
the Military Personnel and Civilian Employees’ Claims Act of 1964,31 U.S.C. 9 3721.


Procurement
Payment/Discharge
H Payment procedures
W n Set-off rights
Where a carrier     liable for damage to a shipment of household goods has been accorded the pre-
offset procedural    rights specified in the Debt Collection Act, collection by administrative offset is
proper.




Page 32                                                                    Digests-November        1990
B-240447. November            21.1990                                             90-2 CPD 413
Procurement
Sealed Bidding
n Low bids
W W Error correction
W n W Price adjustments
H n n m Propriety
Agency properly refused to permit protester to correct an alleged mistake     in bid where the pro-
tester did not submit clear and convincing evidence of its intended bid.


B-240458, November            21,199O                                             90-2 CPD 414
Procurement
Contract Management
n Contract modification
H n Change orders
n n n GAO review
Protest that changes in the way awardee is performing      master agreement orders (MAO) are
beyond the scope of the orders is denied where there is no significant change in the purpose and
nature of the MAOs and obligation of either party to the MAOs.


B-240506. November            21.1990                                             90-2 CPD 415
Procurement
Sealed Bidding
n Invitations for bids
n n Amendments
W n n Acknowledgment
n W n n Responsiveness
Amendment to an invitation for bids (IFB) which increases by more than 1,000 units the quantity
required by the IFB is material and the bidder’s failure to acknowledge such amendment renders
its bid nonresponsive, even where protester alleges it never received the amendment.


B-240622, November            21,199O                                             90-2 CPD 416
Procurement
Bid Protests
n GAO procedures
H n Protest timeliness
n n H lo-day rule
Protest against the Small Business Administration’s  (SBA) refusal to issue certificate of competen-
cy (COC!) is untimely when not filed in General Accounting Office within 10 days of the protester’s
receipt of notice from SBA declining to issue a COC.




Page 33                                                                 Digests-November        1990
B-241402.4, November              21,199O                                             90-2 CPD 417
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Procurement
Bid Protests
n GAO procedures
n n Interested parties
Request for reconsideration    is denied where protester did not submit       bid under   solicitation   and
therefore is not an interested party to protest award to another firm.


B-241988.2, November              21,199O                                             90-2 CPD 418
Procurement
Bid Protests
n GAO procedures
n n Interested parties
n n n Direct interest standards
Protester, an approved household goods carrier under agency’s current in-house employee reloca-
tion service, is not an interested party to protest agency’s decision to contract out for relocation
services or to protest terms of the solicitation, as it is not an actual or prospective offeror under
the solicitation.


B-240511, November             23,1990***                                             90-2 CPD 419
Procurement
Bid Protests
n GAO procedures
n n Purposes
n n n Competition enhancement
General Accounting Office (GAO) will not consider          allegation that agency acted improperly in re-
laxing solicitation experience requirement    in order     to broaden competition since GAO’s role in re-
viewing bid protests is to ensure that the statutory      requirements for full and open competition are
met, not to protect a protester’s interest in a more     restrictive requirement.


Procurement
Specifications
n Brand name/equal specifications
n n Equivalent products
n n n Acceptance criteria
Procurement
Specifications
n Minimum needs standards
n n Determination
n n n Administrative discretion
Where protester    argues awardee did not meet experience requirement   that proposed software
system, “without   modifications, must have been implemented  and operating” at one site for 6

Page 34                                                                      Digests-November            1990
months, but protester likewise proposed a system which was not in its entirety in use at any one
site for 6 months, and agency has determined that awardee’s system will satisfy its minimum
needs, contracting officials have treated both offerors equally and there is no basis to sustain pro
test against award.


B-240525, November            23.1990***                                         90-2 CPD 420
Procurement
Socio-Economic Policies
n Small businesses
n n Competency certification
n W n Eligibility
n W 1 H Criteria
Contracting agency is required to refer its finding that small business bidder is nonresponsible to
the Small Business Administration    (SBA) for consideration under certificate of competency proce-
dures despite the fact that agency is located outside the United States, since statutory require-
ment for referral to SBA is unrelated to agency’s location.


B-240563, November            23,199O                                            90-2 CPD 421
Procurement
Competitive Negotiation
n Requests for proposals
n W Terms
n n W Compliance
While protester contends that patented cloth does not comply with requirements of military speci-
fication based on results of test conducted by independent laboratory retained by the protester,
General Accounting Office has no basis upon which to object to agency’s judgment that the cloth
meets the requirements where it has tested the item twice, observed and approved the manufac-
turer’s test and in each instance the results have indicated compliance with specifications.


Procurement
Specifications
n Minimum needs standards
H W Competitive restrictions
n n W GAO review
Where protester contends that patent indemnity clause in solicitation results in supplier of patent-
ed item being in sole-source position, but record shows that agency has reasonable basis for con-
cluding that use of clause was authorized by regulations, clause is unobjectionable.




Page 35                                                                 Digests-November       1990
B-240597. November              23.1990***                                          90-2 CPD 422
Procurement
Competitive Negotiation
H Offers
n n Evaluation
W W n Orientation costs
Procurement
Competitive Negotiation
W Offers
W W Evaluation errors
W E n Prices
Where solicitation for custodial services provided that offers from other than incumbent contrac-
tor would be evaluated for award by adding orientation costs for a period beginning July 1, or date
of award, whichever is later, through July 31, contracting agency reasonably included in the eval-
uation of protester’s proposed price the cost of 8 days of orientation where contract was awarded
on July 23, and protester was not the incumbent contractor.


B-240695. B-240696. November                   23.1990                              90-2 CPD 423
Procurement
Contractor    Qualification
n Responsibility
W n Information
n W n Submission time periods
Procurement
Contractor Qualification
H Responsibility/responsiveness         distinctions
H n Sureties
n H H Financial capacity
Bid is responsive despite individual   surety’s failure to file pledge of assets with bid bond since a
pledge of assets is information   which bears on responsibility    and, as such, may be furnished any
time prior to award.


B-241908, November              23.1990                                             90-2 CPD 424
Procurement
Sealed Bidding
n Bids
n W Modification
n W H Submission methods
H n H H Facsimile
Bid modification submitted     via facsimile transmission in response to a solicitation which provided
that facsimile modifications   would not be considered was properly rejected by the agency.




Page 36                                                                    Digests-November       1990
B-238890.2, November              26,199O                                              90-2 CPD 425
Procurement
Bid Protests
n GAO procedures
n q GAO decisions
n W W Reconsideration
Request for reconsideration     based on information  protester   timely   could have submitted,   but did
not, during initial consideration of the protest is denied.


B-241614.2, November              26,199O                                              90-2 CPD 426
Procurement
Bid Protests
W GAO procedures
n W Protest timeliness
H W n lo-day rule
Protest filed with the General Accounting      Office (GAO) more than 10 working days after protester
knew of its basis for protest was properly     dismissed as untimely. The fact that the protester first
filed its protest with the Department     of   Transportation    Board of Contract Appeals, which dis-
missed it as not involving a matter within     the Board’s jurisdiction, does not toll the time for filing
with GAO.


B-239995.2, November              27.1990                                              90-2 CPD 427
Procurement
Specifications
n Minimum needs standards
W n Competitive restrictions
W W n Performance specifications
q W n W Justification
Protest of requirement   for raw data as to the number of alpha tracks generated during exposure
of radon monitors is denied where agency demonstrates that raw data is needed to permit identifi-
cation of anomalies in the data which could skew the readings.


Procurement
Specifications
n Minimum needs standards
n H Competitive restrictions
n n n Design specifications
n W n n Justification
Protest of requirement  for tape seals on radon monitors is denied where the agency demonstrates
that the tape seals are the only effective means available to it for protecting the monitors against
additional radon exposure while they are being shipped back to the laboratory for analysis.




Page 37                                                                      Digests-November        1990
Procurement
Specifications
W Minimum needs standards
W n Competitive restrictions
W n H Design specifications
W W n W Justification
Protest of requirement  that material used in radon monitors to record alpha tracks have no more
than 3 tracks/ 10 square millimeters  (sq. mm.) at the time it is inserted into the monitors is sus-
tained where the record shows that material with more than 3 tracks/l0     sq. mm. would serve the
agency’s needs.


Procurement
Specifications
n Ambiguity allegation
n n Specification interpretation
Protest of requirement    for submission with offers of a quality assurance plan tailored to meet spe-
cific agency requirements     is sustained where agency indicates that it intended to require only the
submission of offerors’ standard quality assurance plans with their offers but solicitation language
does not reflect the agency’s intended meaning.


B-240489, November            27.1990                                              90-2 CPD 428
Procurement
Socio-Economic Policies
H Small businesses
H W Competency certificate
W W n Bad faith
W n W n Allegation substantiation
A claim of bad faith on the part of contracting officials requires substantial proof of a specific and
malicious intent to injure the protester, which is not met by the mere failure of contracting off-
cials to grant a discretionary extension to process a certificate of competency.


B-240625, November            27,199O                                              90-2 CPD 429
Procurement
Sealed Bidding
W Bid guarantees
W n Responsiveness
W n W Signatures
n m n W Sureties
Where a bidder has submitted a bid bond which only contained a photocopy of the signature of the
surety’s agent as of the time of bid opening, the bid bond is of questionable enforceability and the
bid is properly rejected as nonresponsive;    since responsiveness cannot be established after bid
opening, the defect in the bond cannot be cured by the bidder’s submission of the original bid bond
subsequent to bid opening.




Page 38                                                                  Digests-November        1990
B-240643, November            27,199O                                           90-2 CPD 430
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation     improprieties
Protest that agency did not afford protester opportunity  to extend bid is untimely where tiled
more than 10 working days after the bid acceptance period expired, the point at which the basis of
protest was apparent.


Procurement
Sealed Bidding
n Bids
n n Expiration
n n n Reinstatement
n n n n Propriety
Protest that agency improperly   awarded contract to thirdlow bidder, whose bid had not expired,
instead of allowing protester to revive expired bid, is denied where agency properly determined
that allowing protester to revive bid would compromise integrity of competitive bidding process.


B-240655, November            27,199O                                           90-2 CPD 431
Procurement
Contractor Qualification
n Responsibility
n n Contracting officer findings
n n n Negative determination
n n q n Prior contract performance
Protest that nonresponsibility  determination  lacked a reasonable basis is denied where the deter-
mination is based on contracting agency’s reasonable perception of inadequate performance by the
protester disputes the agency’s interpretation   of the facts and where there is some indication of
satisfactory performance on other contracts.


Procurement
Contractor Qualification
n Responsibility
q n Contracting officer findings
n n n Bad faith
n q n n Allegation substantiation
Since a nonresponsibility    determination  is based on circumstances at the time of award and is
inherently   judgmental,  the fact that different conclusions as to a firm’s responsibility may be
reached by others does not demonstrate unreasonableness or bad faith on the part of the contract-
ing officer.




Page 39                                                                Digests-November       1990
B-240687. November            27.1990                                               90-2 CPD 432
Procurement
Sealed Bidding
n Bid guarantees
n n Responsiveness
n n n Sureties
n n n n Liability restrictions
Procurement
Sealed Bidding
q Bid guarantees
n n Waiver
Where bid bond provided is less than is required   by the solicitation, but is greater than the differ-
ence between the bid price and the next higher     acceptable bid agency may waive the noncompli-
ance and accept the bid.


Procurement
Sealed Bidding
n Bid guarantees
n n Responsiveness
n n n Sureties
n n n n Liability restrictions
Procurement
Sealed Bidding
n Bid guarantees
n n Waiver
Where a bid bond does not list the United States as the obligee, but correctly identifies the offeror,
the solicitation number and the name of the location of the project involved, and is otherwise ac-
ceptable, the agency may waive the noncompliance and accept the bid.


B-241791.2, November             27,199O                                            90-2 CPD 433
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Request for reconsideration    of dismissal of protest objecting to the Small Business Administra-
tion’s (SBAI refusal to issue a certificate of competency (COC) is denied where the SBA did not fail
to consider vital information  in reaching its COC decision since such information  was contained in
SBA’s record during COC proceedings.




Page 40                                                                   Digests-November        1990
B-238468.2, November             28,199O                                           90-2 CPD 434
Procurement
Contractor Qualification
n Responsibility/responsiveness        distinctions
n n Approved sources
n n n Compliance time periods
Where solicitation provides that qualification   of product may be completed up to time of award,
bidder entry of erroneous Qualified Products List test number does not provide basis for rejecting
the bid since compliance with the requirement       is a matter of responsibility, not responsiveness,
and information   on product qualification  may be provided to agency any time before award.


Procurement
Contractor Qualification
n Responsibility
n n Contracting officer findings
n n n Affirmative determination
n n n n GAO review
Whether a product should be kept on the Qualified Products List (QPLt without being retested is a
matter for the determination  for the agency responsible for the QPL, and the General Accounting
Office will not question the agency’s judgment unless it is shown not to have a reasonable basis.


B-239252.3, November             28,199O                                           90-2 CPD 435
Procurement
Competitive Negotiation
q Contracting officer duties
n n Competitive system integrity
A contracting officer may properly protect the integrity of the procurement system by disqualify-
ing from the competition    a firm which engaged in improper business conduct which may have
afforded the firm an unfair competitive advantage.


B-240134.5, November             28, 1990                                          90-2 CPD 436
Procurement
Bid Protests
n Bias allegation
n n Allegation substantiation
n n n Evidence sufficiency
Protest challenging  award under invitation    for bids based on protester’s allegation of bias in
award selection process is denied where there is no evidence of bias in the record and the award
was properly made to the low bidder as required under sealed bidding procedures.


Procurement
Sealed Bidding
n Contract award notification
n n Procedural defects
Protest challenging award decision baaed on protester’s complaint that agency informed awardee
of award 8 days prior to notifying the unsuccessful bidders is denied because while agencies are
required to provide notice of contract awards, the delay in notifying the protester was merely a
procedural defect which does not affect the validity of the contract award.

Page 41                                                                   Digests-November        1990
B-240488, November            28,199O                                             90-2 CPD 437
Procurement
Bid Protests
n Non-prejudicial    allegation
n n GAO review
Protest alleging that awardee’s proposal for copying equipment and services violated statutory
sanctions against contracting with the Toshiba Corporation is denied, because although the propos-
al did violate the sanction the violation did not result in any competitive disadvantage for the
protester.


B-240602, B-240602.2, November                 28,199O                            90-2 CPD 438
Procurement
Specifications
n Minimum needs standards
n n Competitive restrictions
n n n Design specifications
n n n n Justification
Protest that solicitation for test support airplanes unduly restricts competition by including speci-
fications allegedly “written   around” design features of a competitor’s    product is denied where
agency establishes that one specification the protester cannot meet, a minimum         speed require-
ment, is necessary to meet its mission needs.


B-240731, November            28,199O                                             90-2 CPD 439
Procurement
Competitive Negotiation
n Contract awards
n n Administrative discretion
n n n Cost/technical tradeoffs
n n n n Technical superiority
Award to higher-rated, higher-priced  offeror was proper where price and technical factors were of
equal importance and where agency reasonably determined that the technical advantage associat-
ed with the proposal was worth the difference in price.


B-240865, November            28,199O                                             90-2 CPD 440
Procurement
Sealed Bidding
n Invitations for bids
n n Amendments
n n n Materiality
An amendment to an invitation for bids (IFB) is material where the amendment changes the con-
tract period from June 1 or date of award, whichever is later, through May 31, to October 1 or
date of award, whichever is later, through September 30, because it has a significant impact on
the delivery terms required under the IFB.




Page 42                                                                 Digests-November        1990
Procurement
Sealed Bidding
W Invitations for bids
W H Amendments
W n W Acknowledgment
W W W W Responsiveness
Bid is properly rejected as nonresponsive where bidder fails to acknowledge a material amend-
ment requesting a modified contract period, because, absent such acknowledgment,  the bidder is
not obligated to furnish the item during the new period.


B-241439.2, November                28, 1990                                           90-2 CPD 441
Procurement
Bid Protests
W GAO procedures
W n Protest timeliness
W 4 n Apparent solicitation         improprieties
Bidder’s inclusion in its bid of an “exception” sheet in which it objected to a certain specification
requirement   does not constitute a timely agency-level protest since the contracting   officer is not
authorized to open a bid until the time set for bid opening.


Procurement
Sealed Bidding
W Bids
H n Responsiveness
n n W Terms
H n H n Deviation
Bid properly was rejected as nonresponsive where bidder enclosed with it an “exception”           sheet   in
which the bidder expressly stated that it would not comply with one of the specification           require-
ments.


Procurement
Bid Protests
n GAO procedures
n n Interested parties
A bidder who is ineligible for award because its bid is nonresponsive is not an “interested party”
under the General Accounting Office’s Bid Protest Regulations to maintain a protest of an award
to another bidder.


Procurement
Bid Protests
W GAO procedures
W n GAO decisions
W n n Reconsideration
Request     for reconsideration  is denied where protester’s reiteration of its original basis for protest
does not     show that prior dismissal was based on either errors of fact or law and where protester
does not     present information   not previously considered that warrants reversal or modification      of
the prior    decision.


Page   43                                                                    Digests-November         1990
B-239848.3. November          29.1990
Procurement
Bid Protests
n GAO authority
Procurement
Bid Protests
n Subcontracts
n H GAO review
The General Accounting Office has no bid protest authority to review an award of a subcontract
by a prime contractor when the subcontract procurement     was not made “by or for the govern-
ment.”




Page 44                                                             Digests-November      1990