B-222936.2, MAY 28, 1986, 86-1 CPD 500

B-222936.2, MAY 28, 1986, 86-1 CPD 500

CONTRACTS - PROTESTS - SUBCONTRACTOR PROTESTS - AWARDS "FOR" GOVERNMENT DIGEST: THE FACT THAT GOODS PURCHASED BY A PRIME CONTRACTOR WILL ULTIMATELY BE USED BY THE GOVERNMENT DOES NOT MEAN THAT THE PRIME CONTRACTOR'S PROCUREMENT IS ONE CONDUCTED "FOR" THE GOVERNMENT SO AS TO INVOKE THE GENERAL ACCOUNTING OFFICE'S BID PROTEST JURISDICTION. A PROCUREMENT IS MADE FOR THE GOVERNMENT GENERALLY WHERE THE PRIME CONTRACTOR PRINCIPALLY PROVIDES LARGE-SCALE MANAGEMENT SERVICES TO THE GOVERNMENT AND ACTS ESSENTIALLY AS A MIDDLEMAN OR CONDUIT BETWEEN THE GOVERNMENT AND THE SUBCONTRACTOR.

WALTHAM PRECISION INSTRUMENTS, INC.-- REQUEST FOR RECONSIDERATION:

WALTHAM PRECISION INSTRUMENTS, INC. REQUESTS RECONSIDERATION OF OUR DISMISSAL OF ITS PROTEST CONCERNING THE AWARD OF A SUBCONTRACT UNDER REQUEST FOR PROPOSALS NO. GFAE-085-235, ISSUED BY THE GENERAL DYNAMICS CORPORATION FOR THE PROCUREMENT OF MECHANICAL AIRCRAFT CLOCKS TO BE USED IN AIRCRAFT DESTINED FOR THE NAVY.

WALTHAM FILED A PROTEST WITH THIS OFFICE ON APRIL 28, 1986 ALLEGING THAT THE AWARD OF THE SUBCONTRACT TO AEROSONIC CORPORATION WAS IMPROPER. WALTHAM ALLEGED THAT AEROSONIC WOULD USE FOREIGN JEWEL BEARINGS IN ITS AIRCRAFT CLOCKS CONTRARY TO THE TERMS AND CONDITIONS OF THE PURCHASE ORDER ISSUED BY GENERAL DYNAMICS, THE PRIME CONTRACTOR. WE DISMISSED THE PROTEST BECAUSE, UNDER OUR BID PROTEST REGULATIONS, WE WILL NOT CONSIDER PROTESTS CONCERNING SUBCONTRACTOR SELECTION UNLESS THE SUBCONTRACT WAS MADE "BY OR FOR" THE GOVERNMENT. 4 C.F.R. SEC.21.3(F)(10) (1985). /1/

WALTHAM NOW REQUESTS RECONSIDERATION OF OUR DISMISSAL ON THE GROUND THAT THE PROCUREMENT WAS MADE "FOR" THE GOVERNMENT BECAUSE THE CLOCKS WILL BE USED IN AIRCRAFT THAT WILL BE DELIVERED TO THE NAVY.

SUBCONTRACTORS MADE "FOR" THE GOVERNMENT, AS USED IN OUR REGULATIONS, REFERS TO THOSE LIMITED SITUATIONS WHERE THE SUBCONTRACT, IN EFFECT, IS AWARDED ON BEHALF OF THE GOVERNMENT. THIS INCLUDES SUBCONTRACTS AWARDED BY PRIME CONTRACTORS OPERATING AND MANAGING DEPARTMENT OF ENERGY FACILITIES; PURCHASES OF EQUIPMENT FOR GOVERNMENT OWNED, CONTRACTOR- OPERATED PLANTS, AND PROCUREMENTS BY CONSTRUCTION MANAGEMENT PRIME CONTRACTORS. ROHDE AND SCHWARZ-POLARAD, INC.-- RECONSIDERATION, B-219108.2, JULY 8, 1985, 85-2 CPD PARA. 33. THUS, WE ONLY REVIEW AWARDS OF SUBCONTRACTS WHERE THE PRIME CONTRACTOR PRINCIPALLY PROVIDES LARGE-SCALE MANAGEMENT SERVICES TO THE GOVERNMENT AND, AS A RESULT, GENERALLY HAS AN ONGOING PURCHASING RESPONSIBILITY, ACTING ESSENTIALLY AS A MIDDLEMAN OR CONDUIT BETWEEN THE GOVERNMENT AND THE SUBCONTRACTOR. THE MERE FACT THAT THE GOODS ULTIMATELY WILL BE USED BY THE GOVERNMENT IS INSUFFICIENT TO INVOKE OUR JURISDICTION. DEVAC CHAMBERLAIN, INC.-- RECONSIDERATION, B-215583.2, AUG. 9, 1984, 84-2 CPD PARA. 159.

ACCORDINGLY, ALTHOUGH THE CLOCKS WILL BE INSTALLED IN AIRCRAFT THAT WILL BE DELIVERED TO, AND PAID FOR BY, THE NAVY, THE ACTUAL PROCUREMENT OF THE CLOCKS BY THE NAVY'S PRIME CONTRACTOR IS NOT A PROCUREMENT "FOR" THE GOVERNMENT. THUS, THE DISMISSAL OF THE PROTEST WAS PROPER AND IS HEREBY AFFIRMED.

/1/ THIS LIMITATION ON OUR REVIEW IS DERIVED FROM THE COMPETITION IN CONTRACTING ACT OF 1984, 31 U.S.C. SECS. 3551-3556 (SUPP. II 1984), WHICH LIMITS OUR JURISDICTION TO PROTESTS CONCERNING SOLICITATIONS ISSUED BY FEDERAL AGENCIES.