B-218161, B-218161.2, FEB 15, 1985, 85-1 CPD 206
Highlights
CONTRACTING OUT - COST COMPARISON - EXHAUSTION OF ADMINISTRATIVE REMEDIES DIGEST: GAO WILL NOT CONSIDER A PROTEST AGAINST THE PROPRIETY OF A COST COMPARISON PERFORMED PURSUANT TO OMB CIRCULAR A-76 WHEN THE PROTESTER HAS NOT EXHAUSTED AVAILABLE ADMINISTRATIVE REVIEW PROCEDURES. THE DETERMINATIONS WERE MADE AS THE RESULT OF A COST COMPARISON CONDUCTED UNDER THE GUIDANCE OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A -76. BIDS SUBMITTED BY PROSPECTIVE CONTRACTORS WERE COMPARED WITH THE ESTIMATED COST OF USING GOVERNMENT EMPLOYEES TO PERFORM THE SUBJECT SERVICES. WHEN THERE IS AN APPEAL PROCEDURE AVAILABLE FOR REVIEW OF AN AGENCY'S CALCULATION OF A COST COMPARISON. WE WILL NOT CONSIDER A PROTEST ALLEGING DEFICIENCIES IN SUCH A COST COMPARISON UNLESS THE PROTESTER HAS FIRST EXHAUSTED THAT PROCEDURE.
B-218161, B-218161.2, FEB 15, 1985, 85-1 CPD 206
CONTRACTS - IN-HOUSE PERFORMANCE V. CONTRACTING OUT - COST COMPARISON - EXHAUSTION OF ADMINISTRATIVE REMEDIES DIGEST: GAO WILL NOT CONSIDER A PROTEST AGAINST THE PROPRIETY OF A COST COMPARISON PERFORMED PURSUANT TO OMB CIRCULAR A-76 WHEN THE PROTESTER HAS NOT EXHAUSTED AVAILABLE ADMINISTRATIVE REVIEW PROCEDURES.
SAL FEMIA; GLOBAL CONSTRUCTION & DEVELOPMENT CORPORATION:
SAL FEMIA AND GLOBAL CONSTRUCTION & DEVELOPMENT CORP. PROTEST DETERMINATIONS BY THE UNITED STATES MERCHANT MARINE ACADEMY TO PERFORM PAINTING AND GROUND MAINTENANCE, RESPECTIVELY, IN-HOUSE, RATHER THAN CONTRACTING OUT FOR THESE SERVICES UNDER SOLICITATION NO. DTMA95-84-B 40034. THE DETERMINATIONS WERE MADE AS THE RESULT OF A COST COMPARISON CONDUCTED UNDER THE GUIDANCE OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A -76. UNDER THIS PROCEDURE, BIDS SUBMITTED BY PROSPECTIVE CONTRACTORS WERE COMPARED WITH THE ESTIMATED COST OF USING GOVERNMENT EMPLOYEES TO PERFORM THE SUBJECT SERVICES.
BOTH SAL FEMIA AND GLOBAL CONSTRUCTION ARGUE THAT THE IN-HOUSE COST ESTIMATES CONTAINED NUMEROUS DEFICIENCIES. FOR EXAMPLE, THEY QUESTION THE WAGE RATES UTILIZED IN THE PREPARATION OF THESE ESTIMATES AND THE METHOD USED TO ACCOUNT FOR THE DEPRECIATION OF THE EQUIPMENT REQUIRED TO PERFORM THESE CONTRACTS.
WHEN THERE IS AN APPEAL PROCEDURE AVAILABLE FOR REVIEW OF AN AGENCY'S CALCULATION OF A COST COMPARISON, WE WILL NOT CONSIDER A PROTEST ALLEGING DEFICIENCIES IN SUCH A COST COMPARISON UNLESS THE PROTESTER HAS FIRST EXHAUSTED THAT PROCEDURE. ISS ENERGY SERVICES INC., B-216315, SEPT. 17, 1984, 84-2 CPD PARA. 305, AFF'D ON RECONSIDERATION, DEC. 4, 1984, 84-2 CPD PARA. 620, AND JAN. 29, 1985, 64 COMP.GEN. ---, 85-1 CPD PARA. ---; SUBURBAN LAWN & LANDSCAPE SERVICE, INC., B-209206, OCT. 13, 1982, 82-2 CPD PARA. 334.
HERE, THE SOLICITATION INCORPORATES THE STANDARD CONTRACT CLAUSES REGARDING COST COMPARISON, INCLUDING A PROVISION STATING THAT INTERESTED PARTIES COULD FILE A WRITTEN REQUEST FOR REVIEW OF COST COMPARISON RESULTS WITH THE CONTRACTING OFFICER. FURTHERMORE, BOTH SAL FEMIA AND GLOBAL CONSTRUCTION WERE ADVISED BY LETTERS DATED JANUARY 21, 1985, THAT THEY COULD FILE AN ADMINISTRATIVE APPEAL OF THE A-76 COST COMPARISON BY FEBRUARY 12, 1985. NEITHER PROTESTER APPARENTLY ELECTED TO FILE SUCH AN APPEAL.
UNDER THESE CIRCUMSTANCES THE PROTESTS ARE DISMISSED, SINCE THE PROTESTERS DID NOT EXHAUST THE AVAILABLE ADMINISTRATIVE REVIEW PROCEDURE. SEE URBAN ENTERPRISES, B-201619, FEB. 17, 1981, 81-1 CPD PARA. 101.