B-222537.2, JUN 18, 1986, 86-1 CPD 570

B-222537.2, JUN 18, 1986, 86-1 CPD 570

CONTRACTS - PROTESTS - INTERESTED PARTY REQUIREMENT - POTENTIAL CONTRACTORS, ETC. NOT SUBMITTING BIDS, ETC. DIGEST: FIRM THAT DID NOT SUBMIT ITS OWN OFFER IN RESPONSE TO A SOLICITATION DOES NOT QUALIFY AS AN INTERESTED PARTY UNDER THE COMPETITION IN CONTRACTING ACT OF 1984 TO PROTEST AWARD OF THE CONTRACT.

NATIONAL CONTROL SYSTEMS, INC.-- REQUEST FOR RECONSIDERATION:

NATIONAL CONTROL SYSTEMS, INC. (NCS) REQUESTS THAT WE RECONSIDER OUR DISMISSAL OF ITS PROTEST AGAINST THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. F05604-86-R-0053, ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR THE PROCUREMENT AND INSTALLATION OF AN ACCESS ENTRY CONTROL SYSTEM AT THE NORAD CHEYENE MOUNTAIN COMPLEX. WE AFFIRM THE DISMISSAL.

NCS PROTESTED THAT IT SUBMITTED A BID "IN CONJUNCTION" WITH ITS DISTRIBUTOR, FOXBRO SYSTEMS, AND ELECTRICAL CONSTRUCTION COMPANY (ECC); THAT IT BELIEVED THE EQUIPMENT OFFERED WOULD MEET SOLICITATION SPECIFICATIONS; AND THAT IT WAS PROVIDED NO OPPORTUNITY TO MEET WITH AIR FORCE PERSONNEL AND EXPLAIN ITS OFFER. THE AIR FORCE, HOWEVER, ADVISED OUR OFFICE THAT NCS DID NOT SUBMIT A PROPOSAL IN RESPONSE TO THE SOLICITATION, ALTHOUGH ECC DID, SO THAT NCS WAS, AT BEST, ONLY A POTENTIAL SUBCONTRACTOR. WE THEREFORE DISMISSED THE COMPLAINT BECAUSE UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1986), OUR OFFICE GENERALLY DOES NOT CONSIDER SUBCONTRACTOR PROTESTS.

IN ITS REQUEST FOR RECONSIDERATION, NCS COMPLAINS THAT WE SHOULD HAVE REVIEWED ITS PROTEST SINCE IT WAS FILED ON BEHALF OF, AND IN COOPERATION WITH, ECC, AND THAT THE AWARDEE SUBMITTED A LATE OFFER FOR THIS SOLICITATION.

THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C. SEC. 3551 (SUPP. II 1984), IS THE BASIS UPON WHICH WE CONSIDER BID PROTESTS. CICA DEFINES AN INTERESTED PARTY FOR PURPOSES OF ELIGIBILITY TO PROTEST AS AN "ACTUAL OR PROSPECTIVE BIDDER OR OFFEROR WHOSE DIRECT ECONOMIC INTEREST WOULD BE AFFECTED BY THE AWARD OF THE CONTRACT OR BY FAILURE TO AWARD THE CONTRACT." 31 U.S.C. SEC. 3551(2). THIS STATUTORY DEFINITION OF AN INTERESTED PARTY IS REFLECTED IN THE LANGUAGE OF OUR BID PROTEST REGULATIONS, WHICH IMPLEMENT CICA. SEE 4 C.F.R. SEC. 21.0(A). THUS, ONLY THOSE PROTESTS FILED BY A PARTY THAT FALLS WITHIN THE STATUTORY DEFINITION OF AN INTERESTED PARTY WILL BE CONSIDERED. SEE POLYCON CORP., 64 COMP.GEN. 523 (1985), 85-1 CPD PARA. 567.

ALTHOUGH ECC, THE PROSPECTIVE PRIME CONTRACTOR, WOULD BE AN INTERESTED PARTY TO PROTEST THE AWARD, THE FIRM HAS NOT DONE SO, NOR HAS IT ENDORSED NCS' PROTEST. NCS, NOT HAVING SUBMITTED AN OFFER IN RESPONSE TO THE RFP, SIMPLY DOES NOT QUALIFY AS AN INTERESTED PARTY UNDER CICA AND OUR REGULATIONS. OUR DISMISSAL OF THE FIRM'S PROTEST THEREFORE IS AFFIRMED.