B-182236, JAN 2, 1975

B-182236, JAN 2, 1975

PROTEST AGAINST REJECTION OF PROSPECTIVE SUBCONTRACTOR'S PROPOSAL BY AIR FORCE PRIME CONTRACTOR WILL NOT BE CONSIDERED ON MERITS SINCE PRIME CONTRACTOR'S PROCEDURES IN AWARDING SUBCONTRACTS ARE GENERALLY NOT SUBJECT TO REQUIREMENTS WHICH GOVERN DIRECT UNITED STATES PROCUREMENT WHERE THE PRIME CONTRACTOR IS NOT ACTING AS A PURCHASING AGENT FOR THE GOVERNMENT AND NEITHER FRAUD NOR BAD FAITH ON THE PART OF THE GOVERNMENT CONTRACTING OFFICER IS ALLEGED.

PROBE SYSTEMS INCORPORATED:

TO MEET THE REQUIREMENTS OF ITS CONTRACT NO. 33657-75-C-0017 TO PROVIDE F -4 AIRCRAFT TO THE DEPARTMENT OF THE AIR FORCE, MCDONNELL AIRCRAFT COMPANY, A DIVISION OF MCDONNELL DOUGLAS CORPORATION, ISSUED AN INVITATION FOR FIRM FIXED PRICE PROPOSALS FOR THE FURNISHING OF EIGHT PREPRODUCTION MODELS OF SPECIAL WARNINGS RECEIVERS, TOGETHER WITH BUDGETARY QUOTES FOR VARIOUS FOLLOW-ON PRODUCTION QUANTITIES. THE RESULTING SUBCONTRACT WAS AWARDED TO APPLIED TECHNOLOGY, A DIVISION OF ITEK CORPORATION. BECAUSE OF ITS BELIEF THAT THERE WERE IRREGULARITIES IN THE SUBCONTRACT PROCUREMENT PROCEDURES, PROBE SYSTEMS INCORPORATED (PROBE) PROTESTS THE SUBCONTRACT AWARD TO APPLIED TECHNOLOGY.

THE PRINCIPLE IRREGULARITY IN BIDDING PROCEDURES OF WHICH PROBE PROTESTS IS MCDONNELL AIRCRAFT'S ALLEGED AMENDMENT OF THE INVITATION TO REDUCE THE PREPRODUCTION MODEL QUANTITY REQUIREMENT FROM EIGHT TO SIX UNITS WITHOUT NOTICE TO ALL BIDDERS. ESSENTIALLY, PROBE STATES THAT MCDONNELL AIRCRAFT ADVISED ONLY APPLIED TECHNOLOGY OF THE QUANTITY REDUCTION AND CONDUCTED NEGOTIATIONS ONLY WITH THAT FIRM NOTWITHSTANDING THAT PROBE WAS ADVISED BY THE PRIME CONTRACTOR THAT ITS BID WAS LOWER THAN APPLIED TECHNOLOGY'S AND OF VIRTUALLY IDENTICAL TECHNICAL COMPETENCE. PROBE REQUESTS THAT WE REVIEW THE SUBCONTRACT SELECTION PROCEDURES FOR THESE AND OTHER IRREGULARITIES, RESCIND THE AWARD TO APPLIED TECHNOLOGY AND DIRECT EITHER THAT AWARD BE MADE TO IT OR THAT THE PROCUREMENT BE OPENED FOR NEGOTIATIONS.

THE BID PROTEST PROCEDURES OF OUR OFFICE, 4 C.F.R. SEC. 20.1 ET SEQ. (1974), DO NOT PROVIDE FOR THE ADJUDICATION OF PROTESTS AGAINST SUBCONTRACT AWARDS MADE BY PRIME CONTRACTORS WHO ARE NOT ACTING AS PURCHASING AGENTS FOR THE GOVERNMENT. IN THE PAST, THIS OFFICE HAS ON OCCASION ENTERTAINED SUCH PROTESTS BECAUSE, FOR EXAMPLE, OF OUR CONCERN WHETHER GOVERNMENT APPROVAL OF A SUBCONTRACT WOULD BE PREJUDICIAL TO THE INTERESTS OF THE GOVERNMENT AND /OR BECAUSE THE USUAL LINES OF DISTINCTION BETWEEN PRIME AND SUBCONTRACT TIERS WERE CONSIDERED RELATIVELY UNIMPORTANT. SEE 49 COMP. GEN. 668 (1970); 47 COMP. GEN. 223 (1967). HOWEVER, IN 51 COMP. GEN. 803 (1972), WE SIGNIFICANTLY LIMITED OUR SCOPE OF REVIEW IN THIS AREA. THAT DECISION RECOGNIZED THAT WHERE THE PRIME CONTRACTOR IS NOT ACTING AS A PURCHASING AGENT FOR THE GOVERNMENT AND NEITHER FRAUD NOR BAD FAITH ON THE PART OF GOVERNMENT CONTRACTING OFFICIALS IN APPROVING ANY SUBCONTRACTOR AWARD IS ALLEGED, FURTHER CONSIDERATION OF SUCH PROTESTS WOULD BE UNWARRANTED. WE HAVE SUBSEQUENTLY REAFFIRMED THAT POSITION. B 176675, DECEMBER 4, 1972, B-181676, AUGUST 7, 1974. SINCE MCDONNELL AIRCRAFT IS A PRIME CONTRACTOR AND NOT ACTING AS A PURCHASING AGENT ON BEHALF OF THE GOVERNMENT, WE MUST DECLINE TO PASS ON THE MERITS OF PROBE'S PROTEST OF THE SUBCONTRACT AWARD TO APPLIED TECHNOLOGY.