oversight

Digests of Decisions of the Comptroller General of the United States, Vol. II, No. 3

Published by the Government Accountability Office on 1990-12-01.

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

                                          ...
                                          111

Table of Decision Numbers                 iv

Digests
  Appropriations/Financial   Management
  Civilian Personnel
  Military Personnel
  Procurement




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. 00 74 and 82d). Decisions concerning
claims are issued in accordance with 31 U.S. Code $ 3702 (formerly 31 U.S.C. 3
71). Decisions on the validity of contract awards are rendered pursuant to the
Competition in Contracting Act, Pub. L. 98-369, July 18, 1984. Decisions in this
pamphlet are presented in digest form. When requesting individual         copies of
these decisions, which are available in full text, cite them by the file number
and date, e.g., B-229329.2, Sept. 29, 1989. Approximately    10 percent of GAO’s
decisions are published in full text as the Decisions of the Comptroller General
of the United States. Copies of these decisions are available in individual
copies, in monthly     pamphlets   and in annual volumes. Decisions in these
volumes should be cited by volume, page number and year issued, e.g., 68 Comp.
Gen. 644 (1989).




Page iii
Table of Decision Numbers


B-228695.5, December 18, 1990                     33     B-240033.3, December 12,199O       24
B-234582. December 11. 1990                       22     B-240051, December 12, 1990        24
B-235638. December 4.1990***                       3     B-240150.2, December 3,1990***      8
B-237122.3, B-237122.4,                                  B-240200, December 20, 1990         4
December 3. 1990***                                7     B-240350, December 18,199O         33
B-237342.3, December 10, 1990                     17     B-240564, December 3, 1990          8
B-237712. December 18. 1990                       32     B-240578, December 3, 1990          9
B-237789, December 10, 1990                        1     B-240579, December 4,1990***       11
B-237873.3, December lo,1990                      17     B-240589, December 4, 1990         11
B-238187.2, B-238187.3,                                  B-240603, B-240891, December 6,
December 12, 1990                                 23     1990                               15
B-238251.2. December 6. 1990                      15     B-240610, December 7, 1990         16
B-238289.2, B-238289.3,                                  B-240623, December 5, 1990         13
December 3. 1990                                   7
                                                         B-240624, December 4, 1990***      12
B-238452.4, December 11,199O                      22
                                                         B-240639.2, et al., December 21,
B-238527.3, December 19,199O                      35     1990***                            40
B-238706.4, December 3. 1990                       8     B-240646, December 6,199O          16
B-238802, December 31, 1990                        2     B-240647, December 12, 1990        25
B-238896.3, December 5, 1990                      13     B-240659, December 10, 1990        17
B-238977.3, December 19, 1990                     35     B-240660, December 4,199O          12
B-239231.7, B-239231.8,                                  B-240689, December lo,1990         18
December 4,199O                                   10
                                                         B-240691, B-240691.2, December
B-239490.3, December 4, 1990                      10     14,199o                            28
B-239511, December 31, 1990***                     4     B-240726, December 18, 1990        33
B-239589, December 6, 1990                         3     B-240728, December 10, 1990***     19
B-239608, December 14, 1990                        1     B-240729, December 14, 1990        29
B-239730.3, B-241009, December                           B-240736, December 19, 1990        36
4, 1990    ’                                      11
                                                         B-240743, et al., December 10,
B-239920.2, December 20,199O                      39     1990                               19



***(notes published decisions1Cite published decisions as 69 Comp. Gem-




Page iv
Table of Decision   Numbers




B-240747, December 19, 1990      36   B-241010, B-241010.2, December
B-240770. December 12.1990
 B-240774, December 3,199O        g   B-241035.2, December 5,199O
9B-240777, December 18,199O           B-241043, December 28,199O
26
 B-240788, December 12,199O           B-241068. December 21. 1990
 B-240789, December 18,1990***   34   B-241072, December 19, 1990      38
 B-240799, B-240802, December         B-241079, December 14, 1990      30
 19. 1990                        36   B-241120, December 13, 1990      27
 B-240809, December 10, 1990     20   B-241129. December 10. 1990***   21
 B-240826, December 21, 1990     41   B-241151, December 20, 1990      39
 B-240831, December 17, 1990     31   B-241170, December 13,199O       27
 B-240840. December 21. 1990     42   B-241171, December 28,199O       45
 B-240847, December 17, 1990     32   B-241217, December 14, 1990       6
 B-240852, December 12, 1990     26   B-241309, December 14, 1990      30
 B-240871, B-240872, December         B-241336.3, December 14, 1990    31
 21,199o                         42   B-241432.2, December 26, 1990     1
 B-240884, December 21, 1990     42   B-241444, December lo,1990       21
 B-240885. December 31.1990***   45   B-241447.3, December 13,199O     28
 B-240892, December 21,199O      43   B-241449, December 10, 1990      21
 B-240927, December 28,199O      44   B-241460. December 21. 1990      43
 B-240943. December 19. 1990     37   B-241501, B-241501.2, December
 B-240949.2, December 4, 1990    12   10,199o                          22
 B-240951, December 10, 1990     20   B-241520, B-241520.2, December
 B-240961, December 28, 1990     44   19,199o                          38
 B-240979. B-240981, December         B-241705. December 6. 1990       16
 21, 1990                        43   B-241759.4, December 18, 1990    35
 B-240980, December 20, 1990     39   B-241887, December 13, 1990      28
 B-240986, December 4, 1990      12   B-241902, December 3, 1990        3
                                      B-242034, December 17, 1990      32




Page v
Table     of Decision   Numbers




B-242123,      December    10, 1990   22   B-242242, B-242243, December
B-242138,      December    20,199O                                        23
B-242167,      December    14, 1990   31   B-242328, December 21, 1990    44
B-242219,      December    19, 1990   3g   B-242342, December 13, 1990    28




Page vi
Appropriations                                   ‘Financial
Management


B-237789. December 10.1990
Appropriations/Financial Management
Appropriation    Availability
W Time availability
n n Time restrictions
W W W Advance payments
Naval hospital may not make advance payments for cable television service. The United States
Government is prohibited by 31 USC. 8 3324(a) from paying in advance for goods and services.
Exceptions to the advance payment prohibition       such as 10 USC. 0 2307 and 41 USC. 5 255 are
not applicable to utility service contracts for the provision of cable television service.


B-239608, December 14,199O
Appropriations/Financial Management
Appropriation   Availability
n Purpose availability
W W Specific purpose restrictions
W W W Utility services
WWWWUse taxes
The Rhode Island 9-l-l surcharge appears to be a vendee tax, not payable by the federal govern-
ment. The Rhode Island law provides for levying a surcharge on each residence and business ex-
change line in the state, and holds each user liable for payment of the surcharge; Rhode Island
telephone companies appear, by law, to be collection agents for the state.


B-241432.2, December 26,199O
Appropriations/Financial Management
Appropriation  Availability
q Purpose availability
W W Health services
Department     of Health and Human Services/Social         Security Administration     policy excluding
amounts spent for medical consultants to assist in the review of disability decisions from a 1990
appropriations   limitation  on HHS funds that may be spent for advisory or assistance services is
consistent with that limitation.    Labor, Health and Human Services and Education, and Related
Agencies Appropriations     Act, 1990, Pub. L. No. 101-166, 9 514, 103 Stat. 1159, 1191 (19891.




Page 1                                                                    Digests-December        1990
B-238802, December 31,199O
Appropriations/Financial Management
Accountable    Officers
n Certifying officers
4 n Relief
n n n Illegal/improper     payments
n n n n Overpayments
Relief is granted to U.S. Army Special Disbursing Agent under 31 USC. $3527(c) for an improper
payment to a credit union that was credited to only one account. The issued check should have
listed two accounts for payment. Although the overpayment was the result of a subordinate’s
error, the accountable offrcer maintained an adequate system of procedures which, but for clerical
error combined with a review failure, should have prevented the loss. Adequate collection efforts
have also been taken.




Page 2                                                                Digests-December       1990
Civilian Personnel


B-241902, December 3,199O
Civilian Personnel
Compensation
n Personnel death
n n Balances
n n n Payees
Copies of decisions on unpaid compensation order of precedence provisions, 5 U.S.C. 3 5582 (19881,
which are virtually identical with FEGLI order of precedence provisions, 5 U.S.C. 3 8705 (19881, are
provided to Department of Justice. Our Office noted similarity of these statutory provisions in 54
Comp. Gen. 858, 861 (1975).


B-235638, December 4, 1990***
Civilian Personnel
Compensation
n Retroactive compensation
n n Deductions
n n n Outside employment
An employee who was retroactively    restored to duty and awarded backpay disputes the employing
agency’s determination  to deduct the full amount the employee earned through outside employ-
ment during the period of the corrected action from the gross amount of the backpay award. In
accordance with 5 U.S.C. 0 5596(b)(l)(A)(i) (1988) and implementing  regulations, the full amount
earned by the employee through other employment during the period of improper separation must
be deducted from the gross amount of the backpay award. The repayment obligation for lump-sum
leave payment is subject to waiver consideration under 5 USC. 8 5584. Refunded retirement con-
tributions may be considered for waiver by the Office of Personnel Management under 5 USC.
$8346(b).


B-239589, December 6,199O
Civilian Personnel
Relocation
n Temporary quarters
n n Actual subsistence    expenses
n n q Reimbursement
n n n n Eligibility
Civilian Personnel
Relocation
n Temporary quarters
n n Determination
W n n Criteria
Transferred employee temporarily occupied rental property owned by her and her husband at new
duty station. The employee paid monthly rent to a property management firm owned by her hus-

Page 3                                                                 Digests-December       1990
band as the sole proprietor. An employee who, while occupying temporary quarters incident to a
permanent change of station, lodges in a residence which he or she owns and holds as rental prop-
erty may not be paid lodging expenses absent clear and convincing evidence that, but for lodging
there, the residence would have been rented during the period covered by the claim. Here, the
employee has not presented such evidence and, therefore, the lodging portion of the TQSE may
not be paid.


B-240200, December 20,199O
Civilian Personnel
Compensation
n Overtime
n n Eligibility
n mmstatutory
n n n n Maximum       rates
Two civilian employees who participated in military operation “Just Cause” involving the country
of Panama, performed overtime work, which, when added to their gross bi-weekly salary, caused
their aggregate rate of pay for certain pay periods to exceed the maximum rate for GS-15. Section
5547, title 5, United States Code, 1988, places the above-stated restriction upon the aggregate com-
pensation which may be paid federal civilian employees. The statutory provision does not contain
any exclusions or exceptions that permit waiver of the limitation.    Accordingly, the two employees
may not be paid overtime compensation which would cause their gross bi-weekly salary for any
pay period to exceed the maximum rate for GS-15.


B-239511, December 31,1990***
Civilian Personnel
Travel
n Rental vehicles
n n Fines
n n n Liability
Absent a clear and unambiguous law to the contrary, United States and its activities are free from
state regulation including payment of fines. Therefore, parking tickets are personal liability of em-
ployee responsible for their being issued. See court cases cited.


Civilian Personnel
Travel
n Rental vehicles
n n Fines
n n n Liability
A Selective Service System (SSS) employee paid a $50 parking ticket written on a vehicle leased by
SSS to prevent the ticket from doubling. SSS determined that the paying employee was not the
party responsible for receipt of the ticket and did not identify another employee as responsible for
receipt of ticket. Whether SSS may reimburse paying employee depends upon whether employee
paid a valid obligation of the United States arising by virtue of the language in motor vehicle
lease agreement whereby SSS as lessee agreed to not permit leased “vehicle to be used in violation
of’ District of Columbia law and regulations and that SSS would “indemnify          and hold lessor
harmless from any and all . . penalties resulting from violation of such laws.”




Page 4                                                                   Digests-December       1990




                                        I
Civilian Personnel
Travel
n Rental vehicles
n n Fines
W H 4 Liability
Although the operator of vehicle is liable for payment of parking ticket, District of Columbia law
makes owner of vehicle ultimately liable for payment of parking ticket. District law also provides
that lessor of vehicle may eliminate liability for parking tickets incurred by lessee. Therefore,
whether employee who paid $50 ticket on assumption that agency was liable for such as damages
to lessor under a hold-harmless clause in lease agreement paid an obligation of the government for
which employee may be reimbursed, depends upon whether lessor would have had to pay the
ticket. Request is returned to agency with instruction   to make determination    regarding lessor’s
liability since submission lacks requisite finding.




Page 5                                                                  Digests-December       1990
Military                 Personnel


B-241217, December 14,199O
Military Personnel
Pay
W Retirement   pay
H H Payment    time periods
Military   Personnel
Pay
W Retirement pay
W H Underpayments
In the first 11 months of 1984, retired member was paid retired pay on the last day of month
earned. Pursuant to a change in the law regarding payment dates, payment for December 1984
was made on January 2, 1985. Fact that member received only 11 checks in 1984 does not mean he
was underpaid, since he clearly received 12 payments for the year.




Page 6                                                              Digests-December     1990
Procurement


B-237122.3, B-237122.4, December 3,1990***                                       90-2 CPD 442
Procurement
Competitive  Negotiation
n Discussion reopening
W n Auction prohibition
Protest that agency, in taking corrective action to remedy previously improper procurement,       is
engaged in improper auction technique is denied. Fact that agency did not ultimately     make vari-
ous changes in its requirements,  as agency represented it would do, does not affect the need for
appropriate corrective action in cases where explicit statutory violations have occurred, and this
need takes primacy over possible risk of auction.


Procurement
Competitive Negotiation
H Technical transfusion/leveling
H n Allegation  substantiation
n W n Evidence sufficiency
Agency did not engage in improper technical transfusion by permitting competitor of protester      to
conduct a site visit to a government-owned facility at which protester was incumbent.


Procurement
Competitive Negotiation
W Offers
W W Late submission
H n H Acceptance criteria
Protester’s revised offer was properly rejected as late where revised offer was not a modification of
an otherwise successful offer which proposed terms more favorable than those contained in origi-
nal offer.


B-238289.2. B-238289.3. December 3.1990                                           90-2 CPD 443
Procurement
Competitive   Negotiation
W Offers
W W Competitive   ranges
W W W Exclusion
W n n H Administrative    discretion
Protest challenging elimination of protester’s proposal from the competitive range is denied where
the contracting agency’s evaluation of the proposal was reasonable and in accordance with the
stated criteria.


Page 7                                                                  Digests-December        1990
B-238706.4, December 3,199O                                                        90-2 CPD 444
Procurement
Bid Protests
n GAO procedures
W W GAO decisions
H W 4 Reconsideration
Procurement
Competitive Negotiation
W Competitive advantage
n q Non-prejudicial   allegation
Protester’s mere assertion in request for reconsideration      that because it is the exclusive author-
ized dealer of the required item in the United States, it would have been able to lower its price if
it were given an opportunity to delete certain nonconforming       terms from a standard form submit-
ted with its offer, is not sufficient to establish that protester was competitively   prejudiced by the
award to the low offeror, especially where the protester’s proposed price was approximately          43
percent higher than awardee’s price for the same item and protester did not argue in initial pro-
test that it could have lowered its price.


B-240150.2. December 3.1990”“”                                                     90-2 CPD 445
Procurement
Sealed Bidding
H Unbalanced bids
n n Materiality
H W W Responsiveness
The apparent low bid on a contract for a 3-month base period and three l-year options properly
was determined to be materially unbalanced where there is an unexplained price decrease for the
final option period, the bid would not become low until the fifth month of the final option period,
and there is reasonable doubt that acceptance of the bid would result in the lowest overall cost to
the government because the government determined that it was likely that the final option period
may not be exercised due to funding uncertainty.


B-240564, December 3,199O                                                          90-2 CPD 446
Procurement
Competitive Negotiation
W Initial offers
n n Rejection
n W W Propriety
Procuring agency properly determined that the protester’s initial proposal for services in support
of the agency’s review of grantees’ procurement systems was unacceptable and not in the competi-
tive range, where the protester’s technical proposal indicated that proposed key personnel lacked
sufficient procurement and procurement system review experience and the protester’s proposed
management plan essentially parroted the solicitation’s statement of work.




Page 8                                                                    Digests-December        1990
B-240578, December 3, 1990                                                             90-2 CPD 447
Procurement
Competitive    Negotiation
n Requests for proposals
n n Competitive rights
W W 0 Contractors
W 0 W W Exclusion
Erroneous listing of prospective offeror’s address does not justify sustaining protest against offer-
or’s non-receipt of request for proposals (RFP) where error appears to be an inadvertent, isolated
occurrence not suggestive of significant deficiencies in the contracting agency’s solicitation proc-
ess, and where protester did not avail itself of every reasonable opportunity to obtain the solicita-
tion in that during the approximately     2 months following the presolicitation conference which it
attended it made only one inquiry as to the status of the procurement.


B-240774, December 3,199O                                                              90-2 CPD 448
Procurement
Socio-Economic       Policies
n Small businesses
H W Responsibility
n n W Competency certification
W n W n Negative determination
General Accounting Offke generally will not review a nonresponsibility    determination  where a
small business is concerned since by law the Small Business Authority has conclusive authority to
determine the responsibility of a small business.


Procurement
Bid Protests
n GAO procedures
H H Protest    timeliness
q n W lo-day     rule
Protest of award to another offeror is dismissed as untimely        where not filed within     10 working
days after the protester learned of the award.


Procurement
Bid Protests
q GAO authority
General Accounting    Office does not conduct investigations   as part of its bid protest function.




Page 9                                                                      Digests-December          1990
B-239231.7, B-239231.8, December 4,199O                                           90-2 CPD 450
Procurement
Bid Protests
W GAO procedures
n n GAO decisions
n n n Reconsideration
Procurement
Bid Protests
n Moot allegation
n W GAO review
Dismissal, as academic, of protest challenging agency’s evaluation of offers and award decisions,
was proper where agency took corrective action of amending solicitation, reopening negotiations,
and providing opportunity    for offerors to revise their proposals and submit best and final offers.
Requests for reconsideration   of dismissal are denied, notwithstanding  corrective action did not in-
clude contract award to protesters, since such relief would have been inappropriate.


Procurement
Contract Management
W Contract performance
n n Pending resolicitation
n W n GAO review
Where agency has complied with Competition in Contracting Act of 1984, by making written de-
termination    and notifying General Accounting Office (GAO) of urgent and compelling circum-
stances significantly   affecting the interests of the United States which would not permit staying
contract performance until GAO rendered decision on protests, and is allowing performing con-
tractors to continue performance pending the outcome of reopened negotiations, GAO will not
review the agency’s determination.


B-239490.3. December 4.1990                                                        90-2 CPD 451
Procurement
Competitive   Negotiation
W Offers
I n Competitive ranges
n W n Exclusion
n n n W Evaluation errors
Protest challenging contracting agency’s evaluation of protester’s proposal and exclusion of the
proposal from the competitive range is denied where a review of the agency’s evaluation shows
that it was conducted in accordance with the solicitation evaluation criteria and that the agency’s
decision to exclude the proposal was reasonable, notwithstanding     the protester’s allegation that
the exclusion was the result of a biased evaluation.




Page 10                                                                   Digests-December       1990
B-239730.3. B-241009. December 4.1990                                             90-2 CPD 452
Procurement
Sealed Bidding
H Bid guarantees
n n Responsiveness
4 n W Checks
n w n H Adequacy
Bid which was accompanied by a bid guarantee including uncertified company checks was proper-
ly rejected as nonresponsive, even though the checks were erroneously cashed by the agency after
bid opening.


Procurement
Sealed Bidding
n Invitations for bids
n n Post-bid opening cancellation
H H n Justification
n # H n Competition enhancement
Agency decision to cancel after bid opening an invitation    for bids which had been set aside for
small disadvantaged business concerns and to reprocure on an unrestricted        basis was proper
where no responsive bids had been received and the contracting officer determined that there was
not a reasonable expectation that offers would be obtained from two responsible small disadvan-
taged businesses at prices not exceeding the fair market price by more than 10 percent.


B-240579, December 4.1990***                                                      90-2 CPD 453
Procurement
Sealed Bidding
n Use
H H Criteria
Where all elements enumerated in the Competition          in Contracting  Act, 10 USC. $2304(a)(Z)
(19881, for the use of sealed bidding procedures are present, agencies are required to use those pro-
cedures and do not have discretion to employ negotiated procedures.


B-240589. December 4.1990                                                         90-2 CPD 454
Procurement
Sealed Bidding
n Invitations for bids
H H Amendments
H n n Acknowledgment
n n n n Waiver
Failure of low bidder to acknowledge receipt of an amendment should be waived where the
amendment imposed no substantive or different requirement on bidders; the only reasonable inter-
pretation of the solution prior to the amendment, when read as a whole, was that the contractor
already was required to close the nine storage tanks specified by the amendment.




Page 11                                                                  Digests-December       1990
B-240624, December 4,1990***                                                      90-2 CPD 455
Procurement
Sealed Bidding
n Amendments
W n Acknowledgment
n n H Government mishandling
Procuring   agency properly considered misplaced acknowledgment          of solicitation amendment
where record establishes that the acknowledgment     was deposited at the government installation 2
days prior to bid opening and was misplaced by the agency, but was in the agency’s possession
until it was found, and it was discovered prior to award.


B-240660, December 4.1990                                                         90-2 CPD 456
Procurement
Bid Protests
W GAO procedures
W W Protest timeliness
n W W lo-day rule
Protest that the contracting officer’s decision to conduct a resolicitation for the same requirement
for offrce and storage space instead of awarding a contract to protester, the next low and the only
remaining offeror under the original solicitation, is dismissed as untimely where protester did not
file its protest until more than 10 working days after receiving notice of the contracting offricer’s
decision.


B-240949.2. December 4.1990                                                       90-2 CPD 457
Procurement
Bid Protests
n GAO procedures
n n GAO decisions
n n n Reconsideration
Request for reconsideration of prior dismissal due to protester’s failure to fde timely comments on
agency report is denied since protester’s claimed confusion regarding filing requirements does not
excuse failure to file comments. Protester is charged with constructive notice of Bid Protest Regu-
lations through their publication in Federal Register and Code of Fe&ml Regulations and, in any
event, had actual notice of requirements from standard protest acknowledgement       letter.


B-240986, December 4,199O                                                         90-2 CPD 458
Procurement
Competitive Negotiation
n Offers
W W Evaluation    errors
W W n Evaluation     criteria
n n n n Application
Protest challenging the agency’s selection of awardee, based on allegation that agency’s evaluation
departed from solicitation criteria to include consideration of undisclosed criteria, is denied where
record shows that the agency’s evaluation was reasonable and in accordance with the evaluation
criteria and that the resulting award to the technically superior offeror was the most advanta-
geous to the government.

Page 12                                                                  Digests-December        1990
B-238896.3, December 5,199O
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
Protest filed more than 10 working days after protester knows of its basis of protest is untimely
filed under Bid Protest Regulations, 4 C.F.R. 5 21.2(a) (19901.


B-240623, December 5,199O                                                        90-2 CPD 459
Procurement
Bid Protests
n GAO procedures
W n Interested parties
W n W Direct interest standards
Bidder whose direct economic interest would be affected by award to only other bidder is an inter-
ested party under General Accounting Office’s Bid Protest Regulations entitled to protest the
terms of invitation for bids, where it is an ongoing business concern with access to equipment nec-
essary to provide the required food services, and is willing and capable of providing the required
services if it were awarded the contract.


Procurement
Competitive Negotiation
n Requests for proposals
n n Terms
n n n Ambiguity allegation
n n n W Interpretation
Procurement
Specifications
H Ambiguity     allegation
n H Specification interpretation
Protest that specifications in invitation for bids (IFB) concerning the type of container used to de-
liver temperature-controlled  food items create an ambiguity in the IFB is denied where, when read
as a whole, the only reasonable interpretation    of the IFB is that it allows bidders to submit bids
based on the use of alternative types of containers to deliver the required food items, SOlong as
the container selected is capable of maintaining temperatures established in the IFB.


Procurement
Sealed Bidding
W Invitations   for bids
W n Information     adequacy
There is no requirement that a solicitation be so detailed as to completely eliminate all perform-
ance uncertainties  and risks, and lack of some detail does not render the solicitation defective
where information provided is adequate to enable bidders to compete intelligently  and on an equal
basis.


Page 13                                                                 Digests-December        1990
Procurement
Sealed Bidding
H Invitations  for bids
W n Service contracts
n n n Wage rates
n H n n Omission
Procurement
Socio-Economic     Policies
n Labor standards
n n Service contracts
H n n Wage rates
n n n n Omission
Failure of invitation for bids (IFB) to incorporate applicable Department of Labor @OL) wage de-
terminations   does not render the IFB defective where, due to the urgency of the procurement, the
agency could not wait for DOL to issue the applicable wage determinations      before releasing the
IFB, and complied with the requirements in the applicable regulations to notify DOL of its intent
to enter into a service contract and to advise bidders that the applicable wage determination
would be incorporated upon receipt from DOL.


B-241035.2, December 5,199O                                                       90-2 CPD 460
Procurement
Bid Protests
n GAO procedures
n H GAO decisions
n H n Reconsideration
General Accounting Office affirms prior dismissal based on the determination  that protest became
academic when agency terminated the protested contract award for the convenience of the govern-
ment and stated agency intention to solicit best and final offers from the offerors after revising
solicitation to reflect agency’s minimum needs.


Procurement
Bid Protests
n GAO procedures
n w Preparation costs
n n W Attorney fees
Procurement
Competitive    Negotiation
n Offers
n H Preparation     costs
Protester is not entitled to proposal preparation costs and costs of filing and pursuing protest, in-
cluding attorneys’ fees, where General Accounting Office did not issue a decision on the merits of
the protest after agency’s corrective action rendered the protest academic.




Page 14                                                                  Digests-December       1990
B-238251.2, December 6,199O                                                      90-2 CPD 461
Procurement
Contractor     Qualification
W Licenses
Protest that at time of award, awardee did not have Nuclear Regulatory Commission (NRC) li-
censes required by solicitation  is denied where, in earlier decision, it was recommended that
agency determine whether awardee “possesses” licenses that meet requirement, protester did not
question that recommendation,   and agency relied on the recommendation to allow performance to
continue upon determining that awardee was in possession of required licenses.


B-240603, B-240891, December 6,199O                                              90-2 CPD 462
Procurement
Competitive     Negotiation
n Contract awards
n n Government delays
H W n Justification
n n W n Pending protests
Agency delay in awarding a contract which resulted from initial determination    of low offeror’s
nonresponsibilty and reconsideration of that finding does not evidence preferential    treatment
where there is a material change in a principal factor on which the original determination    was
based.


Procurement
Bid Protests
n Premature allegation
W n GAO review
Allegation that, based on protester’s experience, awardee will be unable to meet a particular speci-
fication, therefore agency must have relaxed that specification for awardee, does not provide basis
to sustain protest.


Procurement
Competitive Negotiation
W Offers
n W Price reasonableness
W W n Determination
n H n n Administrative   discretion
Contracting agency may accept a price reduction from the low-priced offeror who, having        been
found responsible, has submitted the proposal most advantageous to the government.


Procurement
Bid Protests
W GAO procedures
W W Interested parties
n W H Direct interest standards
Highest priced offeror under request for proposals providing for award tc the offeror whose price
represents the best overall buy is not an interested party under the General Accounting Office Bid
Protest Regulations to protest alleged preferential     treatment of lowest offeror, where protester
does not allege that second low offeror is not otherwise entitled to award.

Page 15                                                                 Digests-December       1990
B-240646, December 6,199O                                                              90-2 CPD 463
Procurement
Socio-Economic       Policies
n Small business set-asides
n I Cancellation
H n n Besolicitation
H n H Small business 8(a) subcontracting
Protest that Air Force improperly canceled solicitation synopsized in Commerce Business Daily as
100 percent small business se&aside in order to set the procurement aside for the Small Business
Administration’s   8(a) program is denied where record indicates that agency always intended to
offer the requirement to the 8(a) program and only erroneously synopsized the requirement as a
small business setaside.


Procurement
Socio-Economic   Policies
H Small business 8(a) subcontracting
H n Incumbent contractors
n n W Adverse effects
H n W n Determination
Protest is sustained where Small Business Administration  failed to properly consider potential ad-
verse impact on small businesses prior to accepting requirement, which previously was set aside
for small business, into 8(a) program.


B-241705, December 6,199O                                                              90-2 CPD 464
Procurement
Bid Protests
W GAO procedures
n B Protest timeliness
W n W Apparent solicitation         improprieties
Protest alleging solicitation   improprieties   is untimely   where not filed prior to closing date for re
ceipt of proposals.


B-240610, December 7,199O                                                              90-2 CPD 465          <
Procurement
Competitive      Negotiation
n Offers
W n Competitive ranges
W n W Exclusion
1 n W W Evaluation  errors
Exclusion of proposal from competitive range without considering proposed price was improper
where proposal, although rated marginal, was not determined to be unacceptable.




Page 16                                                                       Digests-December        1990
    B-237342.3. December 10.1990                                                      90-2 CPD 466
    Procurement
    Bid Protests
    n GAO procedures
    n n GAO decisions
    n n n Reconsideration
    Where agency based award on a motor it believed was superior to the one offered by the awardee
4
    in its proposal, but subsequently determined that only the originally proposed motor would meet
    its needs, agency properly modified awardee’s contract to require the originally proposed motor;
    modification was within scope of contract since (1) price was not changed, (2) same motor, with
    alterations, would be furnished, and (3) agency is requiring an item that satisfies precisely the
    solicitation requirements on which the original competition was based.


    B-237873.3. December 10.1990                                                      90-2 CPD 492
    Procurement
    Bid Protests
    n GAO procedures
    n n GAO decisions
    n n n Reconsideration
    Procurement
    Contractor     Qualification
    n Contract personnel
    n n Misrepresentation
    Protest that awardee’s failure to notify contracting agency that it no longer had a business rela-
    tionship with a subcontractor whose computer hardware was used by awardee during negotiations
    constituted a material misrepresentation    warranting rejection of proposal is denied where solicita-
    tion did not require listing of subcontractors, subcontractors were not evaluated and there is no
    evidence that the awardee will not utilize similar hardware obtained from another source.


    B-240659, December lo,1990                                                         90-2 CPD 467
    Procurement
    Competitive     Negotiation
    n Offers
    n n Evaluation errors
    n n n Allegation substantiation
    Protest that agency failed to properly evaluate awardee’s corporate experience is denied where
    agency’s technical evaluation is not shown to be unreasonable or inconsistent with the solicita-
    tion’s evaluation scheme.




    Page 17                                                                  Digests-December        1990
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation      improprieties
Procurement
Competitive Negotiation
n Offers
n n Evaluation errors
n n n Evaluation criteria
n n n n Application
Evaluation of offers based on the application of a small disadvantaged business concern evaluation
preference, not provided for by the solicitation, would be improper. Protest that solicitation should
have included such an evaluation preference is untimely under Bid Protest Regulations since it
alleges a solicitation impropriety apparent before the closing date for receipt of proposals but was
not filed before that time.


Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
Procurement
Competitive Negotiation
n Offers
n n Evaluation errors
n n n Evaluation criteria
n n n n Application
Contracting agency properly did not evaluate transition       costs where the solicitation requesting
fixed-price proposals did not provide for the evaluation of such costs. Protest that such costs
should have been included in the evaluation criteria is untimely under Bid Protest Regulations
when protested after the closing date for receipt of proposals.


B-240689. December 10.1990                                                        90-2 CPD 468
Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Personnel
Evaluators reasonably found that protester’s proposed staffing plan and relocation/phase-in plan,
while acceptable, contained a moderate to high element of risk where protester failed to submit
evidence of firm commitment of incumbent’s expert employees to accept employment with the pro-
tester as contemplated and proposed by the protester.




Page 18                                                                  Digests-December       1990
    Procurement
    Competitive Negotiation
    n Contract awards
    n n Administrative   discretion
    n n n Cost/technical   tradeoffs
    n n n n Technical superiority
    Where record shows that evaluation panel advised source selection       official correctly of relative ad-
    vantages and disadvantages of the protester’s proposal, including      potential cost savings substanti-
a   ated in offer, official could nevertheless reasonably determine that    awardee’s technical superiority
    outweighed such savings, and award to higher-priced, higher-rated      offeror was proper.


    Procurement
    Competitive Negotiation
    n Technical evaluation boards
    n n Bias allegation
    n n n Corrective actions
    Procurement
    Competitive Negotiation
    n Technical evaluation boards
    n n Conflicts of interest
    n n n Corrective actions
    Where agency removed individual from evaluation panel, based on potential conflict of interest,
    and reviewed and removed that individual’s ratings from the evaluation results, there is no basis
    for finding that evaluation was biased against protester.


    B-240728, December 10,1990***                                                        90-2 CPD 469
    Procurement
    Sealed Bidding
    n Bid guarantees
    n n Sureties
    n n n Acceptability
    n n n n Information      submission
    Where agency investigation      revealed misstatements and discrepancies in individual sureties’ net
    worth information furnished in Affidavits of Individual Surety in support of bid guarantee, agency
    reasonably determined that there was inadequate evidence of value and ownership of claimed
    assets as well as doubt as to the integrity of the sureties and the credibility of their representa-
    tions; contracting officer therefore properly rejected bidder as nonresponsible.


    B-240743, et al., December lo,1990                                                   90-2 CPD 470
    Procurement
    Socio-Economic     Policies
    n Small business set-asides
    n BUse
    n n n Administrative      discretion
    An agency decision to set aside a solicitation for small disadvantaged business (SDB) concerns is
    proper where the contracting officer determines that there is a reasonable expectation of bids
    from at least two responsible SDB concerns and that award can be made at a price not exceeding
    the fair market price by more than 10 percent.

    Page 19                                                                    Digests-December         1990
Procurement
Socio-Economic     Policies
H Small business set-asides
WHUse
W n W Restrictions
Under the Small Business Competitiveness Demonstration    Act of 1988, 15 U.S.C. 0 644 note (1988),
setting aside procurements in four designated industry groups for small businesses is prohibited.


B-240809, December lo,1990                                                      90-2 CPD 471
Procurement
Competitive Negotiation
W Contract awards
W W Administrative   discretion
n W W Cost/technical   tradeoffs
n H H H Technical superiority
Protest that agency did not properly justify award to higher priced offeror is denied where the
solicitation made technical considerations more important than price and the agency reasonably
concluded that the technical superiority of the awardee’s proposal was worth the additional cost.


B-240951, December lo,1990                                                      90-2 CPD 472
Procurement
Competitive Negotiation
W Discussion
n n Adequacy
W W W Criteria
Protest that agency failed to point out deficiency in manning area of protester’s proposal during
discussions is denied where agency’s second request for best and final offer clearly led protester
into area of deficiency, asking how protester planned to accomplish the required work with its
proposed manning levels.


Procurement
Competitive Negotiation
W Offers
4 W Evaluation    errors
W W W Evaluation     criteria
H W W H Application
Protest that agency improperly relied on undisclosed manning estimates in technical evaluation of
proposals is denied where estimates were based on solicitation requirements and merely reflected
the agency’s judgment concerning the minimum number of personnel necessary to perform the
work; disclosure of such estimates is not required.




Page 20                                                                Digests-December       1990
Procurement
Competitive   Negotiation
n Contract awards
n H Administrative   discretion
n H n Cost/technical   tradeoffs
W n W W Technical superiority
Decision not to award to lowest-priced offeror was unobjectionable where agency reasonably con-
cluded that the proposal represented a significant performance risk and that the technical superi-
ority of another offeror’s proposal outweighed its cost advantage.


B-241129, December 10, 1990***                                                  90-2 CPD 473
Procurement
Competitive Negotiation
W Discussion reopening
n n Propriety
W n H Best/final  offers
n n n n Non-prejudicial     allegation
Protest that agency improperly reopened negotiations and requested best and final offers after an-
nouncing that protester was apparent successful offeror is denied where prices were not disclosed,
and other offerors did not gain advantage from knowing identity of apparent successful offeror.


B-241444, December IO,1990                                                      90-2 CPD 474
Procurement
Competitive Negotiation
W Offers
n n Evaluation
W 4 W Technical acceptability
H n n n Equivalent products
Protest of agency’s rejection of proposal as technically unacceptable is denied where record shows
that protester did not offer to provide product which met solicitation’s specifications.


B-241449, December IO,1990                                                      90-2 CPD 475
Procurement
Specifications
W Minimum      needs standards
W W Competitive restrictions
n n n GAO review
General Accounting Office will not question the contracting agency’s decision to issue a delivery
order for the development of specifications for a Transionospheric  Sensing System under an exist-
ing indefinite-quantity contract, where requirement is within the scope of such contract.




Page 21                                                                Digests-December      1990
B-241501, B-241501.2, December lo,1990                                           90-2 CPD 476
Procurement
Sealed Bidding
H Bid guarantees
n n Modification
n n n Propriety
Agency properly rejected as nonresponsive a bid accompanied by a bid bond where the penal sum
of the bond had been typed over a whited-out figure without evidence in the bid documents or the
bond itself that the surety had consented to the alteration.


Procurement
Bid Protests
n GAO procedures
n n Interested parties
n n n Direct interest standards
Low bidder whose bid properly was rejected as nonresponsive is not an interested party to argue
that the next low bid also should be rejected as nonresponsive where there is another bidder
which would be in line for award if the next low bid were rejected.


B-242123. December 10.1990                                                       90-2 CPD 477
Procurement
Special Procurement      Methods/Categories
n In-house performance
n n Administrative  discretion
n n n GAO review
General Accounting Office will not review agency decision to perform     services in-house where no
competitive solicitation has been issued for cost comparison purposes.


B-234582. December 11.1990
Procurement
Payment/Discharge
n Payment priority
n W Payment sureties
Requests for payments to sureties of final contract payments were considered in two cases present-
ed. In first case, federal agency may pay the surety because state court judgment is a judicial de-
termination   of the rights of the parties under FAR section 28.106-7(b). In the second case, pursu-
ant to FAR section 28.106-7611, fmal contract payment is not authorized to be made to the surety
until a court has decided who is entitled to such proceeds.


B-238452.4, December 11,199O                                                     90-2 CPD 478
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
Protest alleging that awardee failed to comply with essential solicitation requirement to provide
chemical material quality data is untimely where protester states that it knew of the awardee’s

Page 22                                                                  Digests-December      1990
alleged noncompliance more than 3 months before it Sled its protest. Protester’s failure to file
timely protest is not excused by pending protests ftied by other offerors under the solicitation.


Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
Protest alleging that agency failed to conduct meaningful discussions is untimely where protest is
filed more than 10 days after protester knew or should have known that no discussions would be
conducted.


Procurement
Competitive Negotiation
n Contract awards
n n Administrative   discretion
n n n Cost/technical   tradeoffs
n n n n Technical superiority
Selection of the awardee on the basis of its overall technical superiority, notwithstanding   its 1 per-
cent higher price, is unobjectionable where agency reasonably determined awardee’s higher-priced
proposal was worth the additional cost, and cost/technical    tradeoff was consistent with the evalua-
tion scheme.


B-242242, B-242243, December 11,199O                                                 90-2 CPD 479
Procurement
Socio-Economic     Policies
n Small businesses
n n Responsibility
n n n Competency certification
n n n n Negative determination
Protests of agency’s negative determinations    of protester’s responsibility are dismissed where pro-
tester unsuccessfully availed itself of Small Business Administration      (SBA) certificate of competen-
cy (CCC) procedures and protester does not allege fraudulent or bad faith actions by SBA in the
consideration of its COC applications.


B-238187.2, B-238187.3, December 12,199O                                             90-2 CPD 480
Procurement
Competitive    Negotiation
n Offers
n n Evaluation
n n n Administrative      discretion
Protest against agency’s evaluation of proposals for electric services for newly constructed facility
is denied where protester’s proposed rate required that certain assumptions be made because of
the lack of historical data and while protester disagrees with assumptions used by agency, they
reflected agency’s reasonable technical judgment.




Page 23                                                                    Digests-December         1990
Procurement
Bid Protests
n GAO procedures
n n Preparation costs
Reconsideration request from agency that award of protest costs be rescinded because original pro-
tester did not receive award under reevaluation is denied because award of costs of pursuing pro-
test is appropriate where a protest is sustained and the fact that protester’s proposal is reevalu-
ated and found not to be in line for award following the decision does not preclude entitlement to
such costs.


B-240033.3, December 12,199O                                                     90-2 CPD 481
Procurement
Socio-Economic     Policies
n Small businesses
n n Size standards
n n n Administrative      determination
n n n n GAO review
General Accounting Office does not review size status determinations  made by the Small Business
Administration   (SBA) since SBA has conclusive authority to determine small business size status
for federal procurements.


Procurement
Socio-Economic     Policies
n Small businesses
n n Responsibility
n n n Competency certification
n n n n GAO review
Small Business Administration (SBA) issuance of certificate of competency is not subject to review
by the General Accounting Offke absent a showing of possible fraud or bad faith on the part of
government offkials or that the SBA failed to consider information     vital to a determination  of
responsibility.


Procurement
Bid Protests
l GAO authority
General Accounting Office does not have authority   to impose monetary   sanctions against protester
for filing a protest in bad faith.


B-240051, December 12,199O
Procurement
Payment/Discharge
n Shipment
n n Carrier liability
l n n Amount determination
The measure of damages to repair an item damaged in shipment is the reasonable cost to put it in
as good a condition as it was in before the damage occurred, so long as the cost is not out of pro-
portion to the item’s value and does not exceed the value before injury.

Page 24                                                                  Digests-December       1990
Procurement
Payment/Discharge
n Shipment
n n Damages
n n n Repairs
Shipper whose goods were damaged in transit     is not required   to use the repair   method or repair
person offered by the carrier.


B-240647, December 12, 1990                                                           90-2 CPD 482
Procurement
Competitive      Negotiation
n Discussion
n n Adequacy
n n n Criteria
Contracting  agency held adequate discussions where questions posed to offeror in successive
rounds of written discussions were sufficient to lead the offeror into those areas of its proposal
about which the agency was concerned.


Procurement
Competitive      Negotiation
n Offers
n n Evaluation
n n n Cost estimates
In cost-reimbursement     contract, contracting agency reasonably increased offeror’s proposed costs
to reflect additional travel costs where agency reasonably concluded that due to the nature of the
contract effort, the advance planning necessary to take advantage of the lower cost, discount
travel fares the offeror proposed might not be feasible.


Procurement
Competitive Negotiation
n Offers
n n Evaluation
n n n Evaluation criteria
n n n n Application
Contracting agency’s evaluation of offeror’s technical proposal for    flight test analysis services is
not reasonable where, in light of the detailed proposal submissions     from the offeror and the lack
of detail in the agency’s evaluation documents, the record does not     support the agency’s general-
ized conclusion that the offeror’s proposal was poorly organized and   lacked technical detail.




Page 25                                                                   Digests-December        1990
B-240770, December 12,199O                                                        90-2 CPD 483
Procurement
Sealed Bidding
n Bids
n n Modification
n n n Interpretation
n n n n Intent
Procurement
Sealed Bidding
n Bids
n n Modification
n n n Submission methods
4 n n n Procedural defects
Contracting agency properly refused to allow modification that would have made protester’s bid
low where modification initially conveyed before bid opening by telephone would not have made
bid low and confirming telegram containing different modification that would make bid low was
not received until after bid opening; a pre-opening telephonic bid modification may be considered
if subsequently confirmed by telegram, but there is no basis for accepting modification conveyed in
the confirming telegram where that modification is different from the telephonic modification re
ceived before bid opening.


B-240788, December 12,199O                                                        90-2 CPD 484
Procurement
Specifications
n Minimum      needs standards
n n Competitive restrictions
n n n Geographic restrictions
n n n n Justification
Protest against geographically delineated area set forth in solicitation for offers for leased office
space as unduly restrictive is denied where reduction in original delineated area was necessary to
reduce walking distance between United States Attorney’s Office and Courthouse and the reduc-
tion has been adequately justitied to reflect agency’s minimum needs.


B-240852, December 12,199O                                                        90-2 CPD 485
Procurement
Sealed Bidding
n Bid guarantees
n n Responsiveness
n n n Liability restrictions
Procurement
Sealed Bidding
n Bids
n n Responsiveness
n n n Terms
n n n n Deviation
Bid was properly rejected as nonresponsive where it contained a standard form with terms and
conditions which took exception to a material requirement of the solicitation and limited the pro-
tester’s liability to the government under the contract.

Page 26                                                                 Digests-December        1990
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n Apparent solicitation     improprieties
Protest challenging an alleged impropriety      apparent   from the face of a solicitation   is untimely
where fded after bid opening.


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


B-241120, December 13, 1990                                                           90-2 CPD 486
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n IO-day rule
Protest that the Department of Housing and Urban Development lost the protester’s quotation is
dismissed as untimely because the protester failed to diligently pursue the information on which
the protest is based by waiting 5 months before attempting to verify the contracting officer’s re
ceipt of the quotation, and 4 months between inquiries as to the status of the procurement.


B-241170, December 13,199O
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
n n n n Adverse agency actions
Protest filed more than 10 working days after receipt of denial of agency-level      protest is dismissed
as untimely under 4 C.F.R. $21.2(a)(3) (1990).




Page 27                                                                     Digests-December        1990
B-241447.3, December 13,199O                                                        90-2 CPD 487
Procurement
Bid Protests
H GAO procedures
n W GAO decisions
W n H Reconsideration
Procurement
Bid Protests
W Moot allegation
n W GAO review
Request for reconsideration of dismissal as academic of protest that awardee lacked required tech-
nical experience is denied where the agency advised that no award had been made and discussions
would be conducted.


B-241887. December 13.1990                                                          90-2 CPD 488
Procurement
Bid Protests
W GAO procedures
n n Protest timeliness
W W W lo-day rule
Protest against successful offeror’s misuse of allegedly confidential   data, filed more than 10 work-
ing days after oral notice of award from the agency, is untimely.


B-242342, December 13,199O                                                          90-2 CPD 489
Procurement
Bid Protests
W GAO authority
General Accounting Office is without jurisdiction    to consider a protest of a procurement     by the
Resolution Trust Corporation (RTC) because RTC is defined by statute as a mixed-ownership        corpo-
ration and is therefore not a federal agency for bid protest purposes.


B-240691, B-240691.2, December 14,199O                                              90-2 CPD 490
Procurement
Competitive Negotiation
H Contract awards
W n Administrative  discretion
I I I Cost/technical      tradeoffs
H n n n Cost savings
Contracting agency’s determination     to award cost-plus-fmed-fee contract to offeror with a lower
rated technical proposal to take advantage of its lower proposed cost was proper, even though cost
was the third in importance of evaluation factors, where the agency reasonably decided that the
cost premium involved in an award to a higher rated, higher priced offeror was not warranted in
light of the acceptable level of technical competence available at the lower cost, and where offer-
ors were explicitly advised that cost was a significant evaluation factor.



Page 28                                                                    Digests-December      1990
Procurement
Competitive Negotiation
W Offers
W H Cost realism
W H n Evaluation   errors
W n n n Allegation substantiation
Challenge to agency’s review of awardee’s cost realism is denied where record shows that cost real-
ism review was reasonable and thorough and where agency sought advice from the Defense Con-
tract Audit Agency regarding indirect cost rates and negotiated a rate ceiling with the successful
offeror to protect against increases in those rates.


Procurement
Competitive Negotiation
n Technical transfusion/leveling
n H Allegation substantiation
W n n Evidence sufficiency
Protest alleging that agency violated the prohibition against technical leveling is denied where
there is no indication that agency either conducted successive rounds of technical discussions or
provided impermissible assistance to the awardee.


Procurement
Competitive Negotiation
n Contract awards
W n Propriety
Fact that agency awarded contract to a different corporate affiliate than the one that responded to
the Commerce Business Daily (CBD) announcement regarding the procurement has no bearing on
the propriety of the award because a CBD announcement       is not a solicitation and has no legal
effect on the validity of a contract formed when an agency accepts an offer submitted in response
to a request for proposals.


Procurement
Contractor Qualification
n Responsibility  criteria
H n Performance    capabilities
Fact that awardee is not meeting a contract requirement during performance does not show that
awardee’s proposal failed to conform to the solicitation’s requirements where the proposal in fact
offered to perform as required.


B-240729, December 14,199O
Procurement
Bid Protests
n GAO procedures
n W Protest timeliness
n H n Apparent solicitation        improprieties
Protest that solicitation specifications and evaluation scheme were deficient concerns apparent so-
licitation improprieties, which must be protested prior to receipt of initial offers in order to be
timely under Bid Protest Regulations.


Page 29                                                                Digests-December       1990
Procurement
Competitive Negotiation
n Offers
W W Evaluation
H W n Technical acceptability
Agency reasonably found awardee’s proposal for training course in aircraft structural fatigue    ac-
ceptable where awardee’s resumes demonstrated significant experience in structural fatigue.


Procurement
Competitive   Negotiation
n Technical evaluation        boards
n n Bias allegation
H W W Allegation substantiation
W n n n Evidence sufficiency
Protest that agency technical evaluator was a graduate of the university which was awarded the
contract and consequently may be biased against the protester is denied where the record is
devoid of any evidence of improper influence or bias.


B-241079, December 14,199O
Procurement
Special Procurement      Methods/Categories
W Subcontracts
W W Quotations
W W n Rejection
W W n W Propriety
Protest that agency improperly rejected protester’s quotation because protester did not have its
logo listed with the agency is denied where in order to have a logo listed a company must be a
manufacturer    and the protester did not demonstrate that the agency unreasonably found that the
protester was not a manufacturer.


B-241309, December 14,199O
Procurement
Socio-Economic     Policies
n Small business set-asides
WWUse
H n n Administrative        discretion
General Accounting Office will not object to agency’s decision to set aside procurement for small
business concerns where record indicates the contracting officer had a reasonable expectation that
offers would be obtained from at least two small business concerns and that award would be made
at a reasonable price.


Procurement
Bid Protests
W GAO procedures
n n Interested parties
Where General Accounting Oftice finds that small business set-aside was proper and award was
made at a fair market price, a large business protester is not an interested party to protest use of
small purchase procedures, solicitation provisions, or award.

Page 30                                                                Digests-December         1990
Procurement
Bid Protests
n GAO procedures
n n Pending litigation
n n n GAO review
Where court does not request General Accounting Office (GAO) decision on merits of protest issues
and GAO lacks jurisdiction  to consider those issues GAO will not decide the issues on the merits.


B-241336.3, December 14.1990                                                      90-2 CPD 491
Procurement
Bid Protests
W GAO procedures
n n Protest timeliness
n n n IO-day rule
Request for reconsideration     of decision is denied as untimely where fded more than 10 days after
the baeis for reconsideration   wee known or should have been known.


B-242167, December 14,199O
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n W I lo-day rule
Protest challenging the agency’s rejection of the low bid filed more than 10 working days after
protester was notified of denial of a certificate of competency (COC) by the Small Business Admin-
istration is untimely since the rejection was the result of the COC denial.


B-240831, December 17,199O                                                        90-2 CPD 493
Procurement
Sealed Bidding
W Invitations    for bids
n n Cancellation
n n n Justification
Agency has a compelling reason to cancel solicitation for janitorial services, issued in anticipation
of terminating incumbent contractor, where cancellation is based an agency’s decision not to ter-
minate incumbent contractor because the contractor cured deficiencies in its performance.


Procurement
Bid Protests
n GAO procedures
n n Preparation costs
Claim for bid preparation costs based on an allegation that the agency issued a solicitation for
janitorial  services under which it had “little or no intent to contract” is denied where agency
acted properly in issuing solicitation to ensure the continuous provision of such services in the
 event the incumbent contractor failed to cure the deficiencies in its performance.

Page 31                                                                  Digests-December       1990
B-240847. December 17.1990                                                          90-2 CPD 494
Procurement
Competitive    Negotiation
n Technical evaluation boards
n n Conflicts of interest
n n n Corrective actions
Agency’s decision to exclude a government official from technical     evaluation   board is reasonable
where agency acted to avoid a potential conflict of interest.


Procurement
Competitive    Negotiation
n Offers
n n Evaluation errors
n n n Allegation substantiation
Allegation that agency did not properly evaluate protester’s personnel qualifications and perform-
ance history is denied where record shows that even assuming protester’s proposal received perfect
scores for these evaluation factors, it would not be entitled to award, since awardee’s proposal
would still be higher-rated technically and awardee’s price was considerably lower than protest-
er’s


B-242034. December 17.1990                                                          90-2 CPD 495
Procurement
Bid Protests
n GAO procedures
n n Protest timeliness
n n n lo-day rule
Procurement
Bid Protests
n Premature allegation
n n GAO review
Protest is dismissed where its grounds, which include contentions of solicitation improprieties, in-
sufficient notice of elimination    from the competitive range, and the nonresponsibility of offerors,
are speculative, legally insufficient, untimely, or premature.


B-237712, December l&l990
Procurement
Payment/Discharge
n Shipment costs
n n Additional costs
An air freight carrier cannot be paid additional charges for ferrying its aircraft from its home
base to a shipment’s origin and from destination back to home base, nor can it be paid additional
charges for the use of a larger aircraft, when such services and charges for them are not provided
for in the carrier’s rate tender.




Page 32                                                                  Digests-December         1990
B-228695.5, December l&l990                                                        90-2 CPD 496
Procurement
Bid Protests
n GAO procedures
n n Preparation costs
n n q Amount determination
Where a claimant, seeking the recovery of its proposal preparation and protest costs, fails to ade-
quately document its claim to show that the hourly rate, upon which its claim is based, reflects
the employee’s actual rate of compensation plus reasonable overhead and fringe benefits, the
claim for costs is denied.


Procurement
Bid Protests
n GAO procedures
n n Preparation costs
n n n Amount determination
Protester awarded the costs of pursuing its protest is not entitled to be reimbursed   costs associated
with communicating to Congressmen seeking assistance in the protest.

B-240350, December l&l990
Procurement
Payment/Discharge
n Shipment
n n Carrier liability
n n n Burden of proof
Carrier that packed an Army member’s household goods is not liable for the loss of a compact disc
player that was not listed on the inventory absent a specific statement by the shipper about the
loss based on his personal knowledge of the circumstances    surrounding tender, or other substan-
tive evidence to support the allegation of tender.


B-240726, December l&l990                                                          90-2 CPD 497
Procurement
Competitive    Negotiation
n Offers
n n Evaluation
n n n Cost estimates
Contracting agency’s workload estimates for operation of a supply depot are reasonable where
based on averaged, actual operating experience for same services over the past 30 months oper-
ation of the facility. Moreover, contracting agency was not legally required to provide a minimum
work guarantee, especially where funding constraints precluded guarantee.

Procurement
Competitive    Negotiation
n Requests for proposals
q n Cost data
n n n Administrative  discretion
Contracting agency’s decision not to request cost data from offerors is reasonable where competi-
tion received under prior, canceled solicitation for the same services supports agency’s expectation

Page 33                                                                  Digests-December         1990
that adequate competition       will be received to permit   award to be made to lowest-priced,   technical-
ly acceptable offeror.


Procurement
Competitive   Negotiation
n Pre-proposal conferences
n n Administrative  discretion
Contracting agency’s decision not to provide for site visits or a preproposal conference was reason-
able where the services to be contracted for are the same as those sought under an earlier, can-
celed solicitation under which offerors-   including the protester-were     provided with a site visit
and preproposal conference-and    the site conditions and work requirements remain the same.


B-240777, December 18,199O                                                              90-2 CPD 498
Procurement
Sealed Bidding
n Bids
n n Responsiveness
n B n Brand name/equal specifications
n m n n Salient characteristics
Protester’s bid was properly rejected as nonresponsive where information supplied with protester’s
bid under a brand name or equal solicitation demonstrated that offered product failed to meet a
material requirement of the solicitation.


B-240789, December 18,1990***                                                           90-2 CPD 499
Procurement
Socio-Economic       Policies
n Small business 8(a) subcontracting
n n Contract awards
n l n Administrative  discretion
General Accounting Office will review procurements conducted competitively under section 8(a) of
the Small Business Act since award decisions are no longer purely discretionary and are subject to
Federal Acquisition Regulation.


Procurement
Special Procurement Methods/Categories
n Service contracts
n m Commercial products/services
n   mmuse
n W n n Indefinite     quantities
Federal Acquisition Regulation (FAR) does not prohibit the use of an indefinite quantity contract
for the acquisition of other than commercial items. Maintenance     services, sold to the general
public in the course of normal business operations based on market prices, constitute a commer-
cial product as defined in FAR.




Page 34                                                                        Digests-December         1990
B-241759.4, December l&l990
Procurement
Bid Protests
n GAO procedures
n W Protest timeliness
n n n lo-day rule
n n n n Adverse agency actions
Protest to the General Accounting Office filed more than 10 working       days after notice of denial of
agency-level protest is untimely and will not be considered.


B-238527.3, December 19,199O                                                        90-2 CPD 500
Procurement
Competitive Negotiation
n Offers
n n Evaluation
W H H Downgrading
n n n n Propriety
In a procurement      for travel services, agency had reasonable basis to downgrade protester’s propos
al for not offering    an operational facility in a mandatory location where the solicitation provided
that offerors who      would be able to satisfy government’s requirements immediately upon award
would be assessed     more favorably.


Procurement
Competitive    Negotiation
n Offers
q n Evaluation
n 4 n Administrative        discretion
In evaluating proposals received under request for proposals for government travel services, it was
proper to assess more favorably an offer which demonstrated that it had corporate sales account-
ing for 85 percent of its total sales, and which exceeded the estimated government volume by
almost five times, than an offer demonstrating   that it had corporate sales accounting for only 50
percent of its total sales, and which exceeded the government volume by less than two times,
where solicitation stated that firms demonstrating    significant corporate sales would be assessed
more favorably.


B-238977.3, December 19,199O                                                        90-2 CPD 501
Procurement
Bid Protests
n GAO procedures
n H Administrative reports
q n n Comments timeliness
Procurement
Bid Protests
n GAO procedures
W n GAO decisions
n n n Reconsideration
Protester’s late receipt of agency report is not a basis for reopening protest dismissed for failure to
file comments within 10 days after receipt of agency report where protester failed to notify Gener-

Page 35                                                                    Digests-December        1990
al Accounting Office (GAO) that it had not received report     until   after due date shown on GAO
notice acknowledging receipt of the protest.


B-240736, December 19,199O                                                        90-2 CPD 502
Procurement
Competitive   Negotiation
n Offers
n n Evaluation
n n n Technical     acceptability
Agency reasonably found competing proposals to be technically equal despite the awardee’s pro-
posing a higher number of staff hours than did the protester in its solution to a sample task prob-
lem, where such staffing was not a significant factor in the listed evaluation criteria, the differ-
ence in hours involved only one of three sample tasks, and the protester’s advantage on the first
sample task was reasonably found to be an advantage of incumbency which was not indicative of
technical superiority.


Procurement
Competitive Negotiation
n Contract awards
n n Administrative   discretion
n n n Technical equality
n n n n Cost savings
Protest is sustained where, in deciding to award a time and materials contract on the basis of cost
because competing proposals had been determined to be technically equivalent, agency failed to
evaluate cost proposals involving sample task costs in accordance with the listed solicitation eval-
uation criteria and thereby did not reasonably consider the impact that widely divergent sample
task costs should have had on the selection decision.


B-240747, December 19,199O                                                        90-2 CPD 503
Procurement
Competitive Negotiation
n Offers
n n Cost realism
n n n Evaluation errors
n n n n Allegation substantiation
Protest that in cost realism analysis agency incorrectly applied Service Contract Act (SCA) wage
rates to labor categories filled by employees that are considered professional by protester and
therefore exempt from the SCA is denied where protester has not shown that agency unreasonably
determined, for purposes of determining    low-cost offeror, that labor categories in question would
likely be found to be subject to the SCA under the contract.


B-240799, B-240802, December 19,199O                                              90-2 CPD 504
Procurement
Sealed Bidding
n Bids
n n Evaluation
n n n Discussion
n n n n Propriety
Protest that agency improperly conducted written decisions with protester since oral discussions
were conducted with low bidder under a two-step sealed bid acquisition is denied since the protest-

Page 36                                                                   Digests-December     1990
er was provided with an opportunity      sufficient to make its step-one proposal acceptable,      which
satisfies the agency’s obligations under the applicable regulation.


Procurement
Sealed Bidding
n Two-step sealed bidding
n n Technical transfusion/leveling
n n n Allegation substantiation
n n n n Evidence sufficiency
Protest     that agency engaged in technical leveling and transfusion in its discussions with the low
bidder     is denied where agency did not discuss protester’s proposal with awardee nor did the
agency     repeatedly ask the same or similar questions or suggest technical approaches necessary to
render    the step-one technical proposal acceptable.


Procurement
Contractor Qualification
n Responsibility
n n Contracting officer findings
4 W n Affirmative   determination
II n n W GAO review
Protest that low offeror’s bid in     two-step procurement     is below-cost or that bidder cannot ade-
quately perform at the cost of its   bid is denied since it is not illegal to submit a below-cost bid, and
whether a bidder can perform at      its bid price concerns a matter of responsibility    which is not for
review by the General Accounting       Office.


B-240943. December 19.1990                                                            90-Z CPD 505
Procurement
Contract Management
H Contract performance
n E GAO review
Procurement
Socio-Economic   Policies
0 Preferred products/services
E q American Indians
Where record shows that under Indian set-aside, agency reasonably accepted awardee’s self-certifi-
cation as Indian firm after verifying status on National Roster which identifies Indian firms, Gen-
eral Accounting Office will not disturb performance of contract because 6 months later, under sep
arate solicitation, agency concludes firm is not in fact eligible for Indian set-asides.

B-241010, B-241010.2, December 19,1990***
Procurement
Noncompetitive   Negotiation
H Contract awards
q q Sole sources
W q n Propriety
Protest challenging sole-source award of two interim contracts for automated data processing serv-
ices based on unusual and compelling urgency is denied where, as a result of protests filed against
long-term contract, contracting agency makes a series of short-term awards to incumbent whom
agency reasonably believes to be only firm capable of timely fulfilling agency’s requirements

Page 37                                                                     Digests-December        1990
B-241072, December 19,199O                                                          90-2 CPD 506
Procurement
Sealed Bidding
n Bids
n W Late submission
n n n Acceptance criteria
n W n n Government mishandling
Agency’s acceptance of a late bid was proper where the failure of agency personnel to follow estab-
lished procedures for receipt of express mail on weekends was the paramount cause of the late
receipt.


Procurement
Sealed Bidding
n Bids
H n Responsiveness
q n n Determination       criteria
Failure of bidder to complete representation  in its bid regarding its corporate status for taxpayer
identification purposes has no bearing on the material aspects of the bid and thus does not render
the bid nonresponsive.


Procurement
Socio-Economic      Policies
n Small businesses
W n Size determination
n n n GAO review
Since the Small Business Administration    has conclusive statutory authority to determine small
business status for federal procurement purposes, the General Accounting Office will not consider
a size status protest.


B-241520, B-241520.2, December 19,199O
Procurement
Socio-Economic    Policies
W Small businesses
W n Size determination
n n n GAO review
A protest that an awardee does not qualify as a small business for a small business set-aside on a
sealed bid procurement must be filed within 5 days of bid opening to affect that procurement.

Procurement
Socio-Economic     Policies
H Small businesses
W n Responsibility
n W n Affirmative   determination
I n n n GAO review
Whether a bidder will comply with the limitation on subcontracting provision in an invitation for
bids is a matter of responsibility not reviewable by the General Accounting Office absent a show-
ing of possible fraud, bad faith, or misapplication of definitive responsibility criteria on the part of
contracting officials.


Page 38                                                                    Digests-December        1990
B-242219. December 19.1990                                                       90-2 CPD 507
Procurement
Bid Protests
H GAO procedures
n W Protest timeliness
W n W lo-day rule
n W n n Forum election
Filing of protest with General Services Administration   Board of Contract Appeals (GSBCA) does
not toll the requirement that a protest be timely filed with the General Accounting Office (GAO).
Thus, protest filed with GAO more than 10 days after initial adverse agency action is dismissed as
untimely.


B-239920.2, December 20,199O                                                      90-2 CPD 508
Procurement
Contract Management
n Contract administration
n n GAO review
Protest that agency failed to issue orders under     an alleged requirements  contract concerns a
matter of contract administration  not appropriate   for review by the General Accounting Offrice.


B-240980, December 20,199O                                                        90-2 CPD 509
Procurement
Socio-Economic    Policies
H Small businesses
H n Competency certification
W n n Bad faith
n H n n Allegation substantiation
The protester, a small business concern, was not afforded a fair opportunity for the Small Business
Administration   (SBA) to consider its application for a certificate of competency (COC) where the
central reason for the SBA’s denial of a COC was the protester’s failure to have a complete quality
assurance program, including full work instructions,    in place before the date of contract award,
and where the procuring agency failed to inform SBA that a complete quality assurance program
was not required before contract award and that all offerors had been so informed during discus-
sions.


B-241151, December 20,199O                                                        90-2 CPD 510
Procurement
Bid Protests
n GAO procedures
n n Interested parties
n W n Direct interest standards
Protest by firm not in line for award if the protest were sustained is dismissed since protester does
not have the direct economic interest in the contract award to be considered an interested party
under General Accounting Office Bid Protest Regulations.




Page 39                                                                 Digests-December        1990
B-242138, December 20,199O                                                         90-2 CPD 511
Procurement
Competitive    Negotiation
n Requests for proposals
n W Amendments
n n n Materiality
Procurement
Competitive   Negotiation
n Competitive advantage
n n Non-prejudicial allegation
Protest that offerors were not competing on an equal basis because agency changed its position
with regard to offeror’s recruitment of government personnel after exclusion of the protester’s pro-
posal from the competitive range is denied where solicitation         amendment did not materially
change initial solicitation provisions regarding offerors’ contacts with agency personnel for recruit-
ment purposes.


B-240639.2. et al.. December 21.1990***                                            90-2 CPD 512
Procurement
Socio-Economic      Policies
m Preferred products/services
n W Domestic products
n n n Applicability
Clause requiring domestic forgings was properly included in a Department of Defense solicitation
for items that are considered “final drive gears” on combat support vehicles, where the agency
does not find the quantity being acquired is greater than that required to maintain the domestic
mobilization base for these items.


Procurement
Competitive    Negotiation
n Offers
I n Evaluation
n n n Technical    acceptability
Protest that awardee’s offers were technically unacceptable under solicitations for components of
final drive gears for combat support vehicles, which required domestically manufactured       metal
forgings, is sustained, where the awardee’s proposals indicated that the forging would be done in a
foreign country.




Page 40                                                                  Digests-December        1990
Procurement
Competitive      Negotiation
n Contract      awards
W W Propriety
n W n Offers
n W W W Minor       deviations
Procurement
Socio-Economic   Policies
H Preferred products/services
n n Domestic products
n H H Compliance
Contract awards to offeror, whose offer indicated it did not intend to comply with the Department
of Defense Federal Acquisition Regulation Supplement 3 208.7801 et seq. requirements for domestic
forging, are not void ab initio, where agency and awardee were confused as to the applicability   of
the requirements and appeared to be acting in good faith.


Procurement
Bid Protests
n Moot allegation
m W GAO review
Protest that contracting agency improperly deleted clause from request for proposals (RFP), which
required domestically manufactured    forgings, is rendered academic where the agency reinstates
the clause.


Procurement
Bid Protests
n Moot allegation
n n GAO review
Awardee’s protests against the contracting agency’s requesting new proposals are rendered       aca-
demic where the awardee’s contracts are ultimately not disturbed.


B-240826, December 21, 1990                                                      90-2 CPD 513
Procurement
Sealed Bidding
n Bids
W H Responsiveness
n W n Terms
n W n n Deviation
Where invitation for bids (IFB) required a specific typeface or manufacturer’s generic equivalent,
agency properly rejected as nonresponsive a bid that offered a typeface determined not to be a
generic equivalent, since the bidder did not agree to provide precisely what was called for in the
IFB.




Page 41                                                                 Digests-December       1990
B-240840. December 21.1990                                                       90-2 CPD 514
Procurement
Competitive   Negotiation
n Best/final offers
n n Late submission
W W H Rejection
W H n W Propriety
Best and final offer (BAFO) which was received late at location designated for receipt of proposals
was properly rejected where the offeror telefaxed its BAFO too late to allow a reasonable time for
it to be timely received.


B-240871, B-240872, December 21,199O                                             90-2 CPD 515
Procurement
Sealed Bidding
n Invitations for bids
n I Cancellation
W n n Justification
W n n 4 Price reasonableness
Contracting Officer’s decision to cancel line item of invitation for bids based on unreasonableness
of bid prices was proper where low bid for the item exceeded government estimate by more than
100 percent.


B-240884, December 21.1990                                                       90-2 CPD 516
Procurement
Special Procurement   Methods/Categories
H Federal supply schedule
W n Price adjustments
W n W Reduction
Agency may accept a general price reduction by a General Services Administration           automatic
data processing schedule contractor at any time prior to award.


Procurement
Special Procurement  Methods/Categories
4 Federal supply schedule
n n Quotations
W n n Submission time periods
n n n W Purchases
Purchases from the General Services Administration     automatic data processing schedule contract
do not require a common cutoff date for receipt of best and final quotations.




Page 42                                                                 Digests-December        1990
B-240892. December 21.1990                                                              90-2 CPD 517
Procurement
Sealed Bidding
n Performance bonds
n W Justification
Protest that performance bond requirement is restrictive of competition is denied where agency
reasonably required a bond to assure continuous provision of custodial services and record does
not disclose that this determination was unreasonable or made in bad faith.


B-240979, B-240981, December 21,199O                                                    90-2 CPD 518
Procurement
Competitive        Negotiation
n Contract awards
n n Initial-offer awards
H W n Propriety
Protests are sustained where contracting agency makes award of contracts             based on initial   offers
to other than the lowest overall cost offeror.


B-241068, December 21, 1990                                                             90-2 CPD 519
Procurement
Sealed Bidding
W Bid guarantees
W H Responsiveness
W n W Signatures
n W n H Omission
A bidder’s failure to sign its bid may not be waived as a minor informality          when the accompany-
ing signed solicitation    amendments   fail to clearly identify   the bidder and demonstrate the bidder’s
intent to be bound.


B-241460, December 21,199O                                                              90-2 CPD 520
Procurement
Sealed Bidding
n Bids
n W Evaluation errors
W n W Evaluation  criteria
n n n n hdication
              aa



Procurement
Sealed Bidding
n Contract    awards
W H Propriety
W W H Line items
Protest that agency should have evaluated bids on an item basis and made award to the low
bidder for each item is denied since the IFB does not contain the multiple awards clause which
would permit the agency to make award on that basis.


Page 43                                                                        Digests-December         1990
B-242328, December 21,199O                                                        90-2 CPD 521
Procurement
Bid Protests
H Antitrust  matters
n n GAO review
Procurement
Bid Protests
H Private disputes
n n GAO review
The alleged infringement   of one private party’s proprietary data by another is a matter between
those private parties, not appropriate for consideration under the bid protest function of the Gen-
eral Accounting Office.


Procurement
Contractor Qualification
W Responsibility
n n Contracting officer findings
W n n Affirmative   determination
n W W n GAO review
The General Accounting Office will not consider challenges to affirmative  determinations of re-
sponsibility where there is no showing of fraud or bad faith on the part of the agency nor that
definitive responsibility criteria in the solicitation were not met.


B-240927, December 28,199O                                                        90-2 CPD 523
Procurement
Competitive Negotiation
W Offers
n n Evaluation errors
n n W Evaluation criteria
W n W n Application
Protest that agency deviated from stated evaluation criteria in evaluating protester’s proposal by
point scoring quality control and safety plans is denied where the solicitation specifically provided
that those plans would be evaluated as part of each offeror’s management proposal.


B-240961. December 28.1990
Procurement
Noncompetitive   Negotiation
I Contract awards
W W Sole sources
n n W Propriety
Proposed sole-source award under the authority of 10 U.S.C. $2304(cX1)(1988) is not objectionable
where the agency reasonably determined that only one source was available to supply the required
equipment, and protester, who submitted descriptive literature for review and evaluation by the
agency in response to a notice published in the Commerce Business Daily, failed to establish it had
current equipment which could meet the agency’s requirements.

Page 44                                                                  Digests-December       1990
B-241043. December 28.1990                                                      90-2 CPD 524
Procurement
Contractor Qualification
W Responsibility
W W Contracting   officer findings
W W W Negative determination
W W W W Prior contract performance
Protest that agency’s nonresponsibility   determination  lacked a reasonable basis is denied where
determination    was based on contracting officer’s reasonable conclusion that the protester, who
previously had experienced performance problems, did not provide proof that it had the necessary
technical skills to perform the requirement.


B-241171, December 28,199O                                                      90-2 CPD 525
Procurement
Noncompetitive   Negotiation
W Contract awards
W W Sole sources
W W W Propriety
Sole-source award of a contract is proper where the contracting     agency reasonably determined
that it required a mobile X-ray system utilizing proprietary “backscatter” technology which could
be supplied by only one source, and where the agency complied with the statutory procedural re-
quirements for a sole-source award.


B-240885, December 31, 1990”“”                                                  90-Z CPD 526
Procurement
Competitive Negotiation
W Alternate offers
W W Acceptance
W W W Propriety
Procurement
Competitive Negotiation
W Competitive advantage
W W Non-prejudicial   allegation
Protest that agency acted improperly in determining that proposed alternate product       satisfied so-
licitation requirement  for interchangeability  with referenced brand name voltage        standard is
denied where, although alternate model was not subject to same shock and vibration       standards as
the referenced model, the relaxation of this requirement did not result in competitive    prejudice to
the protester, and thus was unobjectionable.




Page 45                                                                Digests-December          1990
Procurement
Bid Protests
W GAO procedures
W W Information submission
W WW Timeliness
Procurement
Competitive   Negotiation
W Alternate  offers
n W Acceptance
W W W Propriety
Where protest as initially    filed asserted only generally that the awardee’s voltage standard, of-
fered as an alternate product, should not have been accepted for award because it is of a lesser
quality than the specified product manufactured      by the protester, and a detailed argument that
specific characteristics of the alternate product differ materially from those of the specified prod-
uct was raised for the first time in the protester’s comments on the agency report, the detailed
argument is untimely and will not be considered; the detailed argument was based on information
that the protester had in its possession when it filed its protest, and thus had to be raised at that
time.




Page 46                                                                 Digests-December        1990