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B-192773.2, SEP 21, 1979

B-192773.2 Sep 21, 1979
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DIGEST: POTENTIAL SUBCONTRACTOR'S PROTEST WILL NOT BE CONSIDERED BECAUSE PROTEST DOES NOT FALL WITHIN ANY OF THE LIMITED CRITERIA UNDER WHICH GAO WILL CONSIDER PROTESTS AGAINST AWARD OF SUBCONTRACTS. ECI CONTENDS THAT TURNER ACCEPTED A LATE BID FOR A PNEUMATIC TRASH AND LINEN SYSTEM AND THAT THE LOW BIDDER IS NOT QUALIFIED TO PERFORM. THESE CIRCUMSTANCES FALL INTO FIVE CATEGORIES: (1) WHERE THE PRIME CONTRACTOR IS ACTING AS A PURCHASING AGENT OF THE GOVERNMENT. (3) WHERE FRAUD OR BAD FAITH IN GOVERNMENT APPROVAL OF THE SUBCONTRACT AWARD OR PROPOSED AWARD IS SHOWN. (4) WHERE THE SUBCONTRACT AWARD IS "FOR" AN AGENCY OF THE FEDERAL GOVERNMENT. (5) WHERE THE QUESTION CONCERNING THE AWARD OF A SUBCONTRACT IS SUBMITTED BY AN OFFICIAL OF A FEDERAL AGENCY ENTITLED TO AN ADVANCE DECISION FROM OUR OFFICE.

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B-192773.2, SEP 21, 1979

DIGEST: POTENTIAL SUBCONTRACTOR'S PROTEST WILL NOT BE CONSIDERED BECAUSE PROTEST DOES NOT FALL WITHIN ANY OF THE LIMITED CRITERIA UNDER WHICH GAO WILL CONSIDER PROTESTS AGAINST AWARD OF SUBCONTRACTS.

ECI AIR-FLYTE CORPORATION:

ECI AIR-FLYTE CORPORATION (ECI) PROTESTS THE AWARD OF A SUBCONTRACT TO ANOTHER BIDDER BY TURNER CONSTRUCTION COMPANY (TURNER), THE PRIME CONTRACTOR UNDER CONTRACT 100-76-0050 WITH THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE (HEW) FOR THE CONSTRUCTION OF AN AMBULATORY CARE RESEARCH FACILITY. ECI CONTENDS THAT TURNER ACCEPTED A LATE BID FOR A PNEUMATIC TRASH AND LINEN SYSTEM AND THAT THE LOW BIDDER IS NOT QUALIFIED TO PERFORM.

IN OPTIMUM SYSTEMS, INC., 54 COMP.GEN. 767 (1975), 75-1 CPD 166, WE HELD THAT OUR OFFICE WOULD ONLY CONSIDER PROTESTS CONCERNING THE AWARD OF SUBCONTRACTS BY PRIMA CONTRACTORS IN CERTAIN CIRCUMSTANCES. BASICALLY, THESE CIRCUMSTANCES FALL INTO FIVE CATEGORIES: (1) WHERE THE PRIME CONTRACTOR IS ACTING AS A PURCHASING AGENT OF THE GOVERNMENT; (2) WHERE THE GOVERNMENT'S ACTIVE OR DIRECT PARTICIPATION IN THE SELECTION OF THE SUBCONTRACTOR HAS THE NET EFFECT OF CAUSING OR CONTROLLING THE REJECTION OR SELECTION OF A POTENTIAL SUBCONTRACTOR, OR HAS SIGNIFICANTLY LIMITED SUBCONTRACT SOURCES; (3) WHERE FRAUD OR BAD FAITH IN GOVERNMENT APPROVAL OF THE SUBCONTRACT AWARD OR PROPOSED AWARD IS SHOWN; (4) WHERE THE SUBCONTRACT AWARD IS "FOR" AN AGENCY OF THE FEDERAL GOVERNMENT, AND (5) WHERE THE QUESTION CONCERNING THE AWARD OF A SUBCONTRACT IS SUBMITTED BY AN OFFICIAL OF A FEDERAL AGENCY ENTITLED TO AN ADVANCE DECISION FROM OUR OFFICE.

IN THE PRESENT CASE WE ARE INFORMED THAT THE SELECTION OF THE SUBCONTRACTOR WAS THE CHOICE OF THE PRIME CONTRACTOR. NO ALLEGATION OF FRAUD HAS BEEN MADE. SINCE NONE OF THE OTHER EXCEPTIONS CITED ABOVE APPEAR TO BE PRESENT HERE THIS IS NOT TYPE OF SUBCONTRACT CASE WHERE WE WOULD ASSUME JURISDICTION.

THE PROTEST IS DISMISSED.

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