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
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)