B-182740, APR 3, 1975

B-182740: Apr 3, 1975

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ALLEGATIONS THAT CONTRACTS WERE IMPROPERLY AWARDED SOME 17 MONTHS EARLIER ARE UNTIMELY SINCE ISSUES OF THIS NATURE MUST BE RAISED BEFORE CLOSING DATE FOR RECEIPT OF PROPOSALS PURSUANT TO 4 C.F.R. RESOLUTION OF ALLEGATION OF CRIMINAL FRAUD ON PART OF CONTRACTOR IS MATTER MORE APPROPRIATELY FOR RESOLUTION BY DEPARTMENT OF JUSTICE. ISSUE WILL NOT BE PURSUED FURTHER. HAS RAISED SEVERAL ISSUES OF PROTEST REGARDING CONTRACTS THAT HAVE BEEN AWARDED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA). WILL BE DISCUSSED BELOW. THE CONTRACT IN QUESTION WAS AWARDED TO CSC ON JUNE 29. REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

B-182740, APR 3, 1975

1. ALLEGATIONS THAT CONTRACTS WERE IMPROPERLY AWARDED SOME 17 MONTHS EARLIER ARE UNTIMELY SINCE ISSUES OF THIS NATURE MUST BE RAISED BEFORE CLOSING DATE FOR RECEIPT OF PROPOSALS PURSUANT TO 4 C.F.R. SEC. 20.2(A). 2. DELIVERY OF UNSOLICITED PROPOSALS TO PERSONS OTHER THAN CONTROL OFFICER PRECLUDES ACCOUNTABILITY ON PART OF AGENCY FOR ALL PROPOSALS SUBMITTED, AS AGENCY HAS NO WAY OF ACCURATELY DETERMINING COMPLETE RETURN OF PROPOSALS. MOREOVER, WITHOUT PROOF OF IMPROPER USE OF PROPRIETARY DATA, NO CONCLUSION OF WRONGDOING ON PART OF AGENCY CAN BE REACHED. 3. GAO HAS NO AUTHORITY UNDER 5 U.S.C. SEC. 552 TO DETERMINE WHAT INFORMATION MUST BE DISCLOSED BY OTHER GOVERNMENT AGENCIES PURSUANT TO FREEDOM OF INFORMATION ACT. 4. RESOLUTION OF ALLEGATION OF CRIMINAL FRAUD ON PART OF CONTRACTOR IS MATTER MORE APPROPRIATELY FOR RESOLUTION BY DEPARTMENT OF JUSTICE, AND SINCE FEDERAL BUREAU OF INVESTIGATION HAS BEGUN INQUIRY IN MATTER, ISSUE WILL NOT BE PURSUED FURTHER.

JET INTERNATIONAL, INC.:

BY LETTER DATED NOVEMBER 23, 1974, AND SUBSEQUENT CORRESPONDENCE, JET INTERNATIONAL, INC. (JET), HAS RAISED SEVERAL ISSUES OF PROTEST REGARDING CONTRACTS THAT HAVE BEEN AWARDED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA). EACH ISSUE, AND OUR VIEWS THEREON, WILL BE DISCUSSED BELOW.

JET FIRST CONTENDS THAT "NASA HAS DELIBERATELY CONCEIVED OF THINLY DISGUISED PERSONAL SERVICES CONTRACTS FOR SCIENTIFIC SERVICES." PARTICULAR, JET REFERS TO CONTRACT NAS5-11999, AWARDED TO COMPUTER SCIENCES CORPORATION (CSC) AS BEING AN IMPROPER AWARD. HOWEVER, THE CONTRACT IN QUESTION WAS AWARDED TO CSC ON JUNE 29, 1973. OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, PUBLISHED AT 4 C.F.R. PART 20 ET SEQ., SEC. 20.2(A) (1974), REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. AS THIS CONTENTION IS FIRST BEING RAISED SOME 17 MONTHS AFTER AWARD, IT IS CLEARLY UNTIMELY AND WILL NOT BE CONSIDERED ON ITS MERITS.

NEXT, IN RESPONSE TO NASA'S FEBRUARY 7, 1975, REPORT IN THIS MATTER, JET HAS CALLED INTO QUESTION THE PROPRIETY OF SIX OTHER AWARDS OF CONTRACTS FOR NONPERSONAL SERVICES. JET CONTENDS, AS ABOVE, THAT THESE SIX CONTRACTS WERE IMPROPERLY ADVERTISED AND AWARDED ON A NONPERSONAL SERVICES BASIS. NASA, IN TURN, HAS RESPONDED TO THIS ALLEGATION BY STATING THAT ALL OF THE AWARDS IN QUESTION, SAVE ONE, WERE COMPETITIVELY NEGOTIATED AND THAT ALL WERE PROPERLY CLASSIFIED AS BEING FOR NONPERSONAL SERVICES. ADDITIONALLY, NASA HAS QUESTIONED THE TIMELINESS OF THIS FURTHER ALLEGATION.

AGAIN, AND FOR THE REASONS STATED ABOVE, OUR OFFICE MUST DECLINE TO CONSIDER THIS FURTHER ALLEGATION ON ITS MERITS. THE AWARDS IN QUESTION WERE MADE BETWEEN JANUARY 1, 1973, AND SEPTEMBER 30, 1974. AS THIS ISSUE IS FIRST BEING RAISED WELL BEYOND OUR TIME LIMITATIONS SET FOR FILING, THE QUESTION OF THE PROPRIETY OF THE ABOVE AWARDS IS NO LONGER SUBJECT TO PROTEST.

JET FURTHER STATES THAT IT HAS SUBMITTED COPIES OF UNSOLICITED PROPOSALS TO NASA AND THAT NASA HAS REFUSED TO RETURN THEM ALL. ALSO, JET CLAIMS THAT NASA IS OR WILL SOON BE INFRINGING UPON ITS PROPRIETARY DATA AND SEEKS TO RESTRAIN NASA FROM DOING SO.

NASA, ON THE OTHER HAND, STATES THAT IT IS RETURNING OR HAS RETURNED ALL KNOWN COPIES OF ANY UNSOLICITED PROPOSALS SUBMITTED BY JET. A PROBLEM ARISES, HOWEVER, DUE TO THE FACT THAT JET DELIVERED ITS PROPOSALS DIRECTLY TO CERTAIN TECHNICAL PERSONNEL WITHOUT OBTAINING RECEIPTS THEREFOR, INSTEAD OF DELIVERING THE PROPOSALS TO THE PROPOSAL CONTROL OFFICER FOR LOGGING AND ACCOUNTING. IN VIEW OF THIS FACT, OUR OFFICE IS UNABLE TO ASCERTAIN WHETHER OR NOT ALL COPIES OF JET'S PROPOSALS HAVE BEEN RETURNED.

MOREOVER, WITH REGARD TO JET'S CLAIM OF IMPROPER USE OF ITS PROPRIETARY DATA, NASA HAS STATED THAT "*** (IT) HAS MADE NO USE OF, NOR COMMUNICATED TO ANY OTHER FIRM, CONCEPTS OR INFORMATION PROPRIETARY TO JET INTERNATIONAL, NOR DO WE INTEND TO DO SO." BEYOND ITS INITIAL ALLEGATION, JET HAS NOT ESTABLISHED THE FACT THAT NASA HAS, IN FACT, WRONGFULLY UTILIZED ITS PROPRIETARY DATA. ACCORDINGLY, OUR OFFICE CANNOT CONCLUDE THAT NASA HAS ACTED IMPROPERLY IN THIS REGARD.

JET ALSO HAS REQUESTED THAT OUR OFFICE EVALUATE THE VALIDITY OF THE NASA REGULATIONS CONCERNING COMPLIANCE WITH THE FREEDOM OF INFORMATION ACT AS IT APPLIES TO "JET NASA PROTESTS." IT IS THE POSITION OF OUR OFFICE, HOWEVER, THAT WE HAVE NO AUTHORITY UNDER 5 U.S.C. SEC. 552 TO DETERMINE WHAT INFORMATION MUST BE DISCLOSED BY OTHER GOVERNMENT AGENCIES. 53 COMP. GEN. 40 (1973).

THE FINAL CONTENTION RAISED BY JET PERTAINS TO ALLEGATIONS OF A CRIMINAL NATURE INVOLVING THE CHARGING OF TIME BY A CONTRACTOR UNDER NASA CONTRACTS WHEN THE TIME WAS ACTUALLY SPENT ON CONTRACTS HELD WITH OTHER AGENCIES. JET HAS INFORMED OUR OFFICE THAT THIS MATTER IS CONCURRENTLY BEING INVESTIGATED BY THE FEDERAL BUREAU OF INVESTIGATION. A REVIEW OF THE MATERIALS SUBMITTED BY JET LEADS US TO THE CONCLUSION THAT MATTERS OF THIS NATURE ARE MORE APPROPRIATE FOR RESOLUTION BY THE DEPARTMENT OF JUSTICE, AND THEREFORE, WILL NOT BE PURSUED FURTHER BY THIS OFFICE.