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
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)