Matter of: Anderson Columbia Co., Inc. File: B-249475.3 Date: February 5, 1993

Matter of: Anderson Columbia Co., Inc. File: B-249475.3 Date: February 5, 1993

PROCUREMENT Bid Protests GAO procedures Protest timeliness Apparent solicitation improprieties Protest allegation that agency failed to apply evaluation differential to awardee's bid as required by Balance of Payments Program is untimely where solicitation did not provide for such an evaluation, but protest was not filed until after bid opening. PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards PROCUREMENT Bid Protests Moot allegation GAO review Where there is no merit to allegation that agency improperly evaluated awardee's bid, protester is not in line for award and therefore is not an interested party to allege that the award violates statute concerning use of appropriated funds.

Attorneys

DECISION Anderson Columbia Co., Inc. protests the award of a contract to Colas Road Contractors under invitation for bids (IFB) No. N62470-92-B- 2229, issued by the Naval Facilities Engineering Command for repair and resurfacing of the runway at the U.S. Naval Air Station (NAS), Guantanamo Bay, Cuba.

We dismiss the protest.

Colas was the apparent low bidder at the July 21, 1992 bid opening; Anderson was second low. The next day, Anderson filed a protest with the contracting officer against the possibility of an award to Colas arguing, essentially, that award should be made to a U.S. firm to support the domestic economy. The contracting officer denied Anderson's protest on September 14, stating that the Buy American Act does not apply to construction contracts to be performed outside the U.S.

Anderson then filed a protest in our Office on September 24, arguing that: (1) the award to Colas violates the terms of the Balance of Payments (BOP) Program; (2) the Navy's intended use of funds from its operations and maintenance (O&M) account is in violation of statute; (3) the award to Colas violates the terms of the Buy American Act; (4) the Navy failed to prepare a proper justification for specifying particular manufacturers' products in the solicitation; (5) Colas may violate its contractual requirement to utilize U.S. flag ships during performance; and (6) Colas' use of low-paid foreign labor and brokered labor in performance of a U.S. contract violates U.S. policy and the Copeland Act. We summarily dismissed all but the first two allegations in our decision Anderson Columbia, Inc., B-249475.3, Oct. 27, 1992, 92-2 CPD Para. 288. We now address the remaining issues.

BALANCE OF PAYMENTS PROGRAM

Anderson alleges that the Navy improperly failed to add a 50-percent evaluation differential to Colas' bid pursuant to the BOP Program provisions of Federal Acquisition Regulation (FAR) Sec. 25.303. Anderson asserts that it would have been the low bidder if a differential had been applied to Colas' bid.

This argument is untimely. Under our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(1) (1992), alleged improprieties apparent on the face of an IFB must be protested prior to bid opening. The absence of BOP evaluation provisions from the IFB clearly was such an apparent impropriety. In this regard, agencies generally may not evaluate offers on any basis other than that stated in the solicitation. See, e.g., Wackenhut Int'l, Inc., B-241594, Feb. 14, 1991, 91-1 CPD Para. 172. Based on the absence of BOP provisions, Anderson was on notice that the agency either did not intend to apply a BOP differential in evaluating the bids, or inadvertently had omitted provisions so indicating. Accordingly, Anderson was required to protest the omission of the evaluation provisions prior to bid opening. See id.; 4 C.F.R. Sec. 21.1(a)(1). Anderson did not object to the omission, and it may not now argue that the provisions should have been applied. See id.

Anderson cites our decision in B-168333, May 27, 1970, in arguing that, notwithstanding its failure to timely protest the omission of BOP evaluation provisions from the IFB, it still may timely argue that the preference should be applied. In that case, the Air Force applied the BOP evaluation differential to the protester's low bid, even though the solicitation did not provide for it, which resulted in award to another bidder. Anderson asserts that it should be able to timely challenge the application of the unstated BOP provisions, just as the protester there did. This argument is without merit. The fact that we considered the post- bid opening protest in B-168333 is inapposite here for two reasons. First, our timeliness requirements did not go into effect until 1972. Second, the circumstances in B-168333 were different from those here. There, the protester, Sumter Industries, Inc., was challenging the agency's application of an unstated evaluation differential to its bid. Since the IFB had included no BOP provisions, the agency's application of the unstated provisions was the first action taken adverse to Sumter's interests; Sumter's post-bid opening protest on this ground therefore would have been timely. Here, in contrast, the omission of BOP provisions from the IFB was by itself adverse to the interests of Anderson, a domestic firm allegedly intending to furnish domestic materials; as discussed above, the absence of the provisions signaled the agency's possible intent not to apply a differential, contrary to Anderson's interests. If Anderson desired to protect its interest in this regard, it was required to do so by protesting the omission of BOP evaluation provisions prior to bid opening.

In any case, we note that the Navy is not required to apply a BOP evaluation differential in evaluating bids for construction contracts. The requirement Anderson cites for application of a BOP evaluation differential, FAR Sec. 25.303, is applicable only to contracts for supplies and services. FAR Sec. 25.303(a). With regard to construction contracts, the Defense FAR Supplement (DFARS) provides that "the evaluation differential is determined through the estimating process and applied before solicitation." DFARS Sec. 225.302(c)(ii). There is no requirement to apply any specific differential, such as the 50 percent factor Anderson suggests, to bids after bid opening.

USE OF APPROPRIATED FUNDS

Anderson asserts that the award to Colas violates 31 U.S.C. Sec. 1301(a) (1988), which provides that an appropriation shall be applied only to the purpose for which it was made, because the Navy is paying for the project with funds from its operations and maintenance (O&M) account. Anderson claims that the runway repaving project constitutes new construction for which O&M funds may not be used. Anderson is not an interested party to advance this protest ground. Under our Regulations, an interested party is defined as an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by failure to award a contract. 4 C.F.R. Sec. 21.0(a). Where a protester would not be in line for an award even if we were to resolve the protest in its favor, the firm generally lacks standing as an interested party. Corrugated Inner-Pak Corp., B-233710.2, Mar. 29, 1989, 89-1 CPD Para. 326. Since we have no basis to question the agency's failure to apply an evaluation differential to Colas' bid, as discussed above, Colas is properly in line for award, not Anderson. Anderson therefore is not an interested party to raise this issue. See Griffin Galbraith, 64 Comp.Gen. 864 (1985), 85-2 CPD Para. 307; 4 C.F.R. Sec. 21.0(a).

The protest is dismissed.