B-198612, JUL 28, 1980

B-198612, JUL 28, 1980

DIGEST: WHERE BIDDER REFUSES TO GRANT EXTENSION OF BID ACCEPTANCE PERIOD UPON ITS EXPIRATION, BIDDER BECOMES INELIGIBLE FOR AWARD AND THEREFORE DOES NOT HAVE DIRECT AND SUBSTANTIAL INTEREST WITH REGARD TO AWARD UNDER SOLICITATION TO BE REGARDED AS "INTERESTED" PARTY UNDER BID PROTEST PROCEDURES WHERE OTHER APPARENTLY RESPONSIVE, RESPONSIBLE BIDDERS EXIST AND NO APPARENT NEED WILL ARISE TO RESOLICIT PROCUREMENT.

DON GREENE CONTRACTOR, INC.:

DON GREENE CONTRACTOR, INC. (DGC) PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE UNDER INVITATION FOR BIDS (IFB) NO. 8120-78-A, ISSUED BY THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR. THE IFB WAS A TOTAL SMALL BUSINESS SET-ASIDE FOR A CONSTRUCTION PROJECT AT CHANNEL ISLANDS NATIONAL MONUMENT, VENTURA, CALIFORNIA.

BID OPENING WAS HELD ON FEBRUARY 28, 1980 AND THREE BIDS WERE RECEIVED. DGC PROTESTED THE REJECTION OF ITS BID ON APRIL 28, 1980. WHILE THE PROTEST WAS PENDING, THE CONTRACTING OFFICER, ON MAY 22, 1980, REQUESTED DGC TO EXTEND ITS BID ACCEPTANCE PERIOD WHICH WAS DUE TO EXPIRE ON MAY 28, 1980. ON MAY 29, DGC'S COUNSEL WROTE A LETTER TO THE CONTRACTING OFFICER WHICH STATES IN PART:

"*** OUR CLIENT HAS DECIDED NOT TO AGREE TO A FURTHER EXTENSION OF THE BID AS REQUESTED. *** OUR CLIENT HAS DETERMINED THAT IT CANNOT NOW EXPECT TO COMPLETE THE WORK WITHIN THE ORIGINAL TIME AND PRICE LIMITATIONS AND REGRETS THAT IT CANNOT NOW EXTEND THE BID AS YOU WISH."

DGC'S EXPRESS REFUSAL TO EXTEND ITS BID PRESENTS THE THRESHHOLD QUESTION OF WHETHER THAT FIRM IS STILL AN "INTERESTED PARTY" ENTITLED TO MAINTAIN A PROTEST BEFORE OUR OFFICE. A PARTY MUST BE "INTERESTED" UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980), IN ORDER TO HAVE ITS PROTEST CONSIDERED BY OUR OFFICE. DETERMINING WHETHER A PARTY IS SUFFICIENTLY INTERESTED INVOLVES CONSIDERATION OF THE PARTY'S STATUS IN RELATION TO THE PROCUREMENT AND THE NATURE OF THE ISSUES INVOLVED. SEE, GENERALLY, AMERICAN SATELLITE CORPORATION, (RECONSIDERATION), B-189551, APRIL 17, 1978, 78-1 CPD 289.

BY REFUSING TO EXTEND ITS BID, DGC WITHDREW ITS OFFER AND THEREFORE RENDERED ITSELF INELIGIBLE FOR AWARD. THEREFORE, EVEN IF WE WERE TO SUSTAIN DGC'S PROTEST, IT COULD NOT RECEIVE AWARD OF THIS CONTRACT BECAUSE IT NO LONGER WOULD HAVE AN OFFER OUTSTANDING WHICH THE GOVERNMENT COULD ACCEPT. WE DO NOT BELIEVE ANY USEFUL PURPOSE WOULD BE SERVED BY RULING UPON THE RESPONSIVENESS OF AN EXPIRED BID.

THE RECORD INDICATES THAT THERE ARE TWO OTHER BIDDERS IN LINE FOR AWARD, SO THAT EVEN IF DGC IS NONRESPONSIVE, THERE IS NO APPARENT NEED TO CANCEL THE INVITATION AND RESOLICIT THE PROCUREMENT (THEREBY PERMITTING DGC TO REBID). THEREFORE, WE FIND DGC DOES NOT HAVE THE NECESSARY DIRECT AND SUBSTANTIAL INTEREST WITH RESPECT TO AWARD UNDER THIS SOLICITATION TO BE REGARDED AS AN INTERESTED PARTY UNDER OUR BID PROTEST PROCEDURES. MURPHREE & LISLE, INC., B-198210, JULY 18, 1980, 80-2 CPD

THE PROTEST IS DISMISSED.