Skip to main content

B-208801.2, NOV 16, 1982

B-208801.2 Nov 16, 1982
Jump To:
Skip to Highlights

Highlights

DIGEST: PRIOR DECISION THAT A TRADE ASSOCIATION IS NOT AN INTERESTED PARTY UNDER GAO BID PROTEST PROCEDURES WHERE NO MEMBER OF THE TRADE ASSOCIATION HAS A DIRECT OR SUBSTANTIAL INTEREST WITH REGARD TO PROCUREMENT IS AFFIRMED. WE DISMISSED A PROTEST FILED BY THE COMMITTEE ON THE BASIS THAT THE COMMITTEE WAS NOT AN INTERESTED PARTY UNDER OUR BID PROTEST PROCEDURES. THE COMMITTEE ARGUED THAT ALBECO MADE AN INCORRECT REPRESENTATION IN ITS BID CONCERNING ITS STATUS AS A SMALL BUSINESS BECAUSE THE GOODS ALBECO OFFERED ALLEGEDLY WERE NOT MANUFACTURED DOMESTICALLY. WE DETERMINED THAT THE COMMITTEE WAS NOT AN INTERESTED PARTY BECAUSE NO MEMBER OF THE COMMITTEE HAD THE REQUISITE DIRECT AND FINANCIAL INTEREST TO MAINTAIN A PROTEST.

View Decision

B-208801.2, NOV 16, 1982

DIGEST: PRIOR DECISION THAT A TRADE ASSOCIATION IS NOT AN INTERESTED PARTY UNDER GAO BID PROTEST PROCEDURES WHERE NO MEMBER OF THE TRADE ASSOCIATION HAS A DIRECT OR SUBSTANTIAL INTEREST WITH REGARD TO PROCUREMENT IS AFFIRMED.

COMMITTEE OF DOMESTIC STEEL WIRE ROPE & SPECIALTY CABLE MANUFACTURERS - RECONSIDERATION:

THE COMMITTEE OF DOMESTIC STEEL WIRE ROPE & SPECIALTY CABLE MANUFACTURERS REQUESTS THAT WE RECONSIDER OUR DECISION IN THE MATTER OF COMMITTEE OF DOMESTIC STEEL WIRE ROPE & SPECIALTY CABLE MANUFACTURERS, B-208801, SEPTEMBER 15, 1982, 82-2 CPD 231. IN THAT DECISION, WE DISMISSED A PROTEST FILED BY THE COMMITTEE ON THE BASIS THAT THE COMMITTEE WAS NOT AN INTERESTED PARTY UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.1(A)(1982). WE AFFIRM OUR PREVIOUS DECISION.

THE COMMITTEE'S PROTEST CONCERNED THE DEPARTMENT OF THE ARMY'S AWARD OF A CONTRACT TO ALBECO FASTENER CO. UNDER INVITION FOR BIDS NO. DACW33 82-B- 0033, A SMALL BUSINESS SET-ASIDE FOR STEEL WIRE ROPE. THE COMMITTEE ARGUED THAT ALBECO MADE AN INCORRECT REPRESENTATION IN ITS BID CONCERNING ITS STATUS AS A SMALL BUSINESS BECAUSE THE GOODS ALBECO OFFERED ALLEGEDLY WERE NOT MANUFACTURED DOMESTICALLY, AS REQUIRED BY THE SOLICITATION.

WE DETERMINED THAT THE COMMITTEE WAS NOT AN INTERESTED PARTY BECAUSE NO MEMBER OF THE COMMITTEE HAD THE REQUISITE DIRECT AND FINANCIAL INTEREST TO MAINTAIN A PROTEST. THIS DETERMINATION WAS BASED ON ADVICE FROM THE DEPARTMENT OF THE ARMY THAT NEITHER THE SECOND NOR THIRD LOW BIDDERS IS A MEMBER OF THE COMMITTEE.

THE COMMITTEE ARGUES THAT OUR DECISION WAS ERRONEOUS BECAUSE, IN ITS VIEW, PAULSEN WIRE ROPE CORP., A MEMBER OF THE COMMITTEE AND THE SIXTH LOW BIDDER, HAD A SUFFICIENT INTEREST IN THE PROCUREMENT TO MAINTAIN A PROTEST. THE COMMITTEE CONTENDS THAT REMARKS (E.G., "REPUBLIC OF KOREA") ENTERED BY THE CONTRACTING OFFICER IN THE ABSTRACT OF BIDS CONCERNING THE SECOND, FOURTH AND FIFTH LOW BIDDER INDICATE, IN THE COMMITTEE'S OPINION, THAT THESE BIDDERS WOULD NOT BE ELIGIBLE FOR AWARD.

SINCE PAULSEN IS THE SIXTH LOW BIDDER, EVEN ASSUMING THAT THE FIRST, SECOND, FOURTH AND FIFTH BIDDERS SHOULD BE REJECTED, THERE IS ANOTHER BIDDER (THE THIRD LOW BIDDER) TO WHICH AWARD COULD BE MADE. THUS, PAULSEN WOULD NOT BE IN LINE FOR AWARD IF THE COMMITTEE'S PROTEST IS UPHELD. PAULSEN THEREFORE DOES NOT HAVE THE REQUISITE DIRECT AND SUBSTANTIAL INTEREST WITH REGARD TO THE PROCUREMENT. SEE INTERNATIONAL BUSINESS INVESTMENTS, B-202164.2, JUNE 8, 1981, 81-1 CPD 459. IT FOLLOWS THAT THE COMMITTEE CANNOT DERIVATIVELY CLAIM THE REQUISITE INTEREST TO MAINTAIN A PROTEST THROUGH PAULSEN.

THE COMMITTEE ALTERNATIVELY ARGUES THAT IT HAS AN "INTEREST" IN THE PROCUREMENT SEPARATE FROM THAT OF ANY SPECIFIC MEMBER THAT MAY HAVE SUBMITTED A BID. THE COMMITTEE CONTENDS THAT THE IMPROPER AWARD IS NOT AN ISOLATED INCIDENT, BUT RATHER IS ONE OF MANY FOR STEEL WIRE ROPE CONTRACTS ON THE BASIS OF INACCURATE REPRESENTATIONS REGARDING THE PLACE OF MANUFACTURE. THE COMMITTEE ALSO SUBMITS THAT IT HAS A DIRECT AND SUBSTANTIAL INTEREST IN ENSURING THAT GOVERNMENT AGENCIES ADHERE TO THEIR OWN PROCUREMENT REGULATIONS AND LAW.

WE REJECT THESE CONTENTIONS. OUR RECOGNITION OF TRADE ASSOCIATIONS AS INTERESTED PARTIES HAS BEEN BASED ON THE INTEREST ITS CONSTITUENT MEMBERS MAY HAVE IN THE PROCUREMENT. SEE ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS, B-199548, SEPTEMBER 15, 1980, 80-2 CPD 196. TO CONFER INTERESTED PARTY STATUS ON TRADE ASSOCIATIONS WHERE NO INDIVIDUAL MEMBER IS AN INTERESTED PARTY WOULD IN EFFECT ENABLE FIRMS WHICH ARE NOT THEMSELVES INTERESTED PARTIES TO CIRCUMVENT OUR REGULATIONS BY BRINGING PROTESTS THROUGH THE ASSOCIATION RATHER THAN IN THEIR OWN BEHALF. MOREOVER, AN INTEREST IN THE ENFORCEMENT OF A STATUTE OR REGULATION IS INSUFFICIENT IN ITSELF TO CONFER INTERESTED PARTY STATUS. MARINE ENGINEERS BENEFICIAL ASSOCIATION; SEAFARERS INTERNATIONAL UNION - REQUEST FOR RECONSIDERATION, B-195550.2, MARCH 23, 1981, 81-1 CPD 215.

LAST, WE POINT OUT THAT EVEN IF WE RECOGNIZED THE COMMITTEE AS AN INTERESTED PARTY WE WOULD NOT CONSIDER THE PROTEST ON ITS MERITS. CHALLENGE TO A FIRM'S ELIGIBILITY FOR THE AWARD OF A SMALL BUSINESS SET ASIDE ON THE GROUNDS THAT THE FIRM IS ALLEGEDLY FURNISHING FOREIGN PRODUCTS OR ITEMS WITH FOREIGN COMPONENTS MUST BE RESOLVED BY THE SMALL BUSINESS ADMINISTRATION RATHER THAN BY OUR OFFICE. MICHIGAN INSTRUMENTS CORPORATION, B-202781, APRIL 20, 1981, 81-1 CPD 302.

WE CONCLUDE THAT THE COMMITTEE HAS NOT ADVANCED ADDITIONAL FACTS OR LEGAL ARGUMENTS WHICH SHOW THAT OUR EARLIER DECISION WAS ERRONEOUS. ACCORDINGLY, WE AFFIRM OUR PRIOR DECISION. SEE 4 C.F.R. SEC. 21.9(A).

GAO Contacts

Office of Public Affairs