B-179952, APR 5, 1974

B-179952: Apr 5, 1974

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WHERE GOVERNMENT EMPLOYEE COMMENCED WORK FOR A NON-GOVERNMENT CONTRACTOR ON A FEE BASIS WHILE OFF DUTY AND WAS SUBSEQUENTLY ASSIGNED CONTRACT ADMINISTRATION DUTIES WHICH WERE UNRELATED TO CONTRACTOR SELECTION PROCESS. ALLEGATION BY UNSUCCESSFUL BIDDER THAT SUCCESSFUL BIDDER IS NOT PERFORMING CONTRACT IN ACCORDANCE WITH SPECIFICATIONS INVOLVES CONTRACT ADMINISTRATION FUNCTIONS WITHIN RESPONSIBILITY OF CONTRACTING AGENCY AND IS NOT A MATTER FOR RESOLUTION UNDER GAO BID PROTEST PROCEDURES. 3. THERE IS NO LEGAL BASIS FOR ALLOWING A CLAIM FOR LOST PROFITS BY AN UNSUCCESSFUL BIDDER. MOREOVER THIS WORK WAS PERFORMED DURING OFF-DUTY HOURS. WAS NOT RELATED IN ANY WAY TO EGLIN AFB. IT IS ALSO REPORTED THAT WORK ON THE PROTESTED CONTRACT DID NOT COMMENCE UNTIL JULY 9.

B-179952, APR 5, 1974

1. WHERE GOVERNMENT EMPLOYEE COMMENCED WORK FOR A NON-GOVERNMENT CONTRACTOR ON A FEE BASIS WHILE OFF DUTY AND WAS SUBSEQUENTLY ASSIGNED CONTRACT ADMINISTRATION DUTIES WHICH WERE UNRELATED TO CONTRACTOR SELECTION PROCESS, NO BASIS EXISTS FOR ALLEGED UNFAIR COMPETITION IN THE AWARD PROCESS OF GOVERNMENT CONTRACT EVEN THOUGH GOVERNMENT EMPLOYEE'S NEW DUTIES COVERED ADMINISTRATION OF GOVERNMENT CONTRACT HELD BY AN ALLEGED RELATIVE OF THE SOURCE OF OFF DUTY INCOME. 2. ALLEGATION BY UNSUCCESSFUL BIDDER THAT SUCCESSFUL BIDDER IS NOT PERFORMING CONTRACT IN ACCORDANCE WITH SPECIFICATIONS INVOLVES CONTRACT ADMINISTRATION FUNCTIONS WITHIN RESPONSIBILITY OF CONTRACTING AGENCY AND IS NOT A MATTER FOR RESOLUTION UNDER GAO BID PROTEST PROCEDURES. 3. THERE IS NO LEGAL BASIS FOR ALLOWING A CLAIM FOR LOST PROFITS BY AN UNSUCCESSFUL BIDDER. KECO INDUSTRIES, INC. V. UNITED STATES, 428 F.2D 1233 (CT. CL. 1970) AND HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 135 CT. CL. 63 (1956).

TO EDWARD E. DAVIS CONTRACTING, INC.:

THE PROTESTER, AN UNSUCCESSFUL BIDDER, HAS ALLEGED THAT THE INCUMBENT CONTRACTOR, B.R. CROWSON PAINTING COMPANY (CROWSON), UNDER CONTRACT NO. F08651-73-C-0581 HAS BEEN PERMITTED TO DEVIATE FROM STRICT COMPLIANCE WITH CERTAIN SPECIFICATION REQUIREMENTS IN THE COURSE OF CONTRACT PERFORMANCE. THE FIRM ALLEGES FAVORITISM TO SAID CONTRACTOR ARISING FROM AN UNRELATED BUSINESS TRANSACTION BETWEEN THE CONTRACTOR'S SON AND THE CHIEF INSPECTOR AT THE PROCURING ACTIVITY. THE PROTESTER CONTENDS THAT THIS RELATIONSHIP "MAKES IT IMPOSSIBLE FOR (IT) TO FAIRLY COMPETE ON THIS BASE" AND BY WAY OF RELIEF REQUESTS REIMBURSEMENT FOR LOST PROFITS.

WITH REGARD TO PROTESTER'S ALLEGATION OF UNFAIR COMPETITION, THE AIR FORCE REPORTS THAT THE CHIEF, CONSTRUCTION MANAGEMENT BRANCH HAS NEVER BEEN "IN BUSINESS" WITH THE CONTRACTOR'S SON AS ALLEGED. DURING THE PERIOD FROM FEBRUARY THROUGH JULY 1973 THIS INDIVIDUAL, FOR A FEE, DESIGNED AND GAVE TECHNICAL GUIDANCE IN THE FABRICATION OF HEAVY DUTY SPECIALIZED SHIPPING PALLETS FOR WHICH MR. HAROLD CROWSON HAD A CONTRACT. THE WORK COMMENCED PRIOR TO THIS INDIVIDUAL'S INITIAL ASSIGNMENT TO THE CONSTRUCTION MANAGEMENT BRANCH ON MARCH 18, 1973, AND HE DID NOT ASSUME FULL TIME RESPONSIBILITY AS BRANCH CHIEF UNTIL APRIL 16, 1973. MOREOVER THIS WORK WAS PERFORMED DURING OFF-DUTY HOURS, OFF BASE, AND WAS NOT RELATED IN ANY WAY TO EGLIN AFB. IT IS ALSO REPORTED THAT WORK ON THE PROTESTED CONTRACT DID NOT COMMENCE UNTIL JULY 9, 1973, AND THE PROCURING ACTIVITY STATES THAT THIS INDIVIDUAL HAD NO ROLE IN THE EVALUATION OF BIDS AND PROPOSALS, OR THE ENSUING CONTRACT AWARD.

IN VIEW OF THE ABOVE, WE FIND NO SUBSTANTIAL BASIS TO THE PROTESTER'S CONTENTION OF UNFAIR COMPETITION IN THE AWARD PROCESS.

AS TO THE PROTESTER'S ALLEGATIONS OF NONCOMPLIANCE WITH THE CONTRACT SPECIFICATIONS, WE HAVE STATED IN A PRIOR DECISION THAT SUCH CONTENTIONS ARE PROPERLY FOR RESOLUTION BY THE CONTRACTING AGENCY DURING THE COURSE OF CONTRACT ADMINISTRATION AND NOT NORMALLY CONSIDERED IN RESOLVING BID PROTESTS. B-179719, B-179720, JANUARY 29, 1974.

CONCERNING THE CLAIM FOR LOST PROFITS WE ALSO ADVISED IN THE ABOVE DECISION THAT THERE IS NO LEGAL BASIS FOR ALLOWING SUCH A CLAIM BY AN UNSUCCESSFUL BIDDER. SEE KECO INDUSTRIES, INC. V. UNITED STATES, 428 F.2D 1233 (CT. CL. 1970) AND HEYER PRODUCTS COMPANY, INC. V. UNITED STATES, 135 CT. CL. 63, 69 (1956).