B-195454, AUG 20, 1979

B-195454, AUG 20, 1979

DIGEST: 1. ALTHOUGH GAO WILL CONSIDER PROTESTS INVOLVING SUBCONTRACTS UNDER LIMITED CIRCUMSTANCES AS STATED IN OPTIMUM SYSTEMS, INC., PROTEST WILL NOT BE CONSIDERED WHERE SUBCONTRACTOR SELECTION IS .HOICE OF PRIME CONTRACTOR AND GOVERNMENT'S APPROVAL IS NOT SHOWN TO HAVE BEEN BASED UPON FRAUD OR BAD FAITH AND REVIEW OF ACTION WOULD RESULT IN GAO INVOLVEMENT IN CONTRACT ADMINISTRATION. 2. EVEN IF PROTEST IS TYPE OVER WHICH GAO WOULD ASSUME JURISDICTION, IT IS UNTIMELY, SINCE, TO EXTENT IT IS AGAINST IMPROPRIETY OF SOLICITATION, IT WAS FILED AFTER CLOSING OF RFP AND, TO EXTENT IT IS THAT AWARD SHOULD NOT HAVE BEEN MADE TO AWARDEE, IT WAS FILED ABOUT 6 WEEKS AFTER DISMISSAL BY GOVERNMENT AGENCY.

NEW BRUNSWICK SCIENTIFIC CO., INC.:

NEW BRUNSWICK SCIENTIFIC CO., INC. (NEW BRUNSWICK), PROTESTS THE AWARD OF A SUBCONTRACT TO CHEMAPEC, INC. (CHEMAPEC), UNDER REQUEST FOR PROPOSALS (RFP) NO. 78-3599. LITTON BIONETICS, INC. (LITTON), THE PRIME CONTRACTOR, ISSUED THE RFP ON AUGUST 18, 1978, FOR AN INTEGRATED FERMENTATION DEVELOPMENT PILOT PLANT WHICH PRODUCES MYCELIAL AND OTHER CULTURES IN AN ASCEPTIC CONDITION TO BE INSTALLED AT THE FREDERICK CANCER RESEARCH CENTER, NATIONAL CANCER INSTITUTE (NCI), NATIONAL INSTITUTE OF HEALTH, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.

THE BASES OF NEW BRUNSWICK'S PROTEST ARE (1) THE USE OF THE RFP INSTEAD OF AN IFB AS THE PROCUREMENT VEHICLE WAS IMPROPER; (2) NEW BRUNSWICK WAS NOT INCLUDED IN ANY NEGOTIATIONS PRIOR TO THE AWARD; (3) OBJECTIVE CRITERIA SHOULD HAVE BEEN USED INSTEAD OF SUBJECTIVE CRITERIA WHEN EVALUATING THE PROPOSALS; (4) CHEMAPEC FAILED TO MEET THE REQUIREMENT IN THE RFP THAT THE VENDOR PROVIDE "DOCUMENTED EXPERIENCE IN THE FABRICATION OF SIMILAR EQUIPMENT"; (5) CHEMAPEC'S CONFORMANCE TO THE TERMS OF THE BUY AMERICAN ACT; (6) THE APPARENT CONSIDERATION OF FACTORS RELATING TO PAST PERFORMANCE OF A SUBSIDIARY OF NEW BRUNSWICK DURING THE EVALUATION PROCESS; (7) AWARDING THE CONTRACT TO CHEMAPEC AT A HIGHER PRICE THAN WAS ORIGINALLY OFFERED; (8) WAIVER OF A "FACTORY TEST" AS REQUIRED BY THE RFP; AND (9) THE APPARENT UNAVAILABILITY OF COST OR PRICING DATA AS REQUIRED BY THE RFP.

THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS WAS SEPTEMBER 14, 1978. BY LETTER DATED MARCH 28, 1979, LITTON INFORMED NEW BRUNSWICK OF THE AWARD. ON APRIL 18, LITTON HELD A DEBRIEFING WITH NEW BRUNSWICK TO EXPLAIN THE REASONS THAT THE AWARD WAS NOT MADE TO IT AS WELL AS WHY IT WAS NOT INVOLVED IN ANY RELATED NEGOTIATIONS. BY TELEGRAM DATED APRIL 26, NEW BRUNSWICK FILED A PROTEST WITH NCI'S CONTRACTING OFFICER AGAINST THE AWARD. BY LETTER OF MAY 7, THE CONTRACTING OFFICER INFORMED NEW BRUNSWICK THAT AWARD OF THE SUBJECT SUBCONTRACT WAS MADE BY THE PRIME CONTRACTOR, LITTON, NOT NCI. IN ADDITION, BY LETTER DATED MAY 29, NCI EXPLAINED IN DETAIL THE RELATIONSHIPS BETWEEN THE GOVERNMENT AND ITS PRIME CONTRACTORS AND OF THE PRIME CONTRACTORS DEALINGS WITH OTHER CONCERNS (SUBCONTRACTORS). NCI REITERATED THAT THE MATTER WAS BETWEEN NEW BRUNSWICK AND LITTON. NCI EXPLAINED THAT ITS ROLE IN THIS CASE WAS TO REVIEW AND APPROVE THE PROPOSED SUBCONTRACT AWARD IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF ITS CONTRACT WITH LITTON.

OUR OFFICE WILL CONSIDER SUBCONTRACT PROTESTS ONLY IN LIMITED CIRCUMSTANCES AS SET FORTH IN OPTIMUM SYSTEMS, INC., 54 COMP.GEN. 767 (1975), 75-1 CPD 166. THE CIRCUMSTANCES ARE: (1) WHERE THE PRIME CONTRACTOR IS ACTING AS THE PURCHASING AGENT OF THE GOVERNMENT; (2) WHERE THE ACTIVE OR DIRECT PARTICIPATION OF THE GOVERNMENT IN THE SELECTION OF A SUBCONTRACTOR HAS THE NET EFFECT OF CAUSING OR CONTROLLING THE REJECTION OR SELECTION OF POTENTIAL SUBCONTRACTORS, OR OF SIGNIFICANTLY LIMITING SUBCONTRACTOR SOURCES; OR OF SIGNIFICANTLY LIMITING SUBCONTRACTOR SOURCES; (3) WHERE FRAUD OR BAD FAITH IN THE APPROVAL OF THE SUBCONTRACT AWARD BY THE GOVERNMENT IS SHOWN; (4) WHERE THE SUBCONTRACT AWARD IS "FOR THE GOVERNMENT"; OR (5) WHERE A FEDERAL AGENCY ENTITLED TO AN ADVANCE DECISION REQUESTS IT. OPTIMUM SYSTEMS FURTHER STATED:

"HOWEVER, WHERE THE ONLY GOVERNMENT INVOLVEMENT IN THE SUBCONTRACTOR SELECTION PROCESS IS ITS APPROVAL OF THE SUBCONTRACT AWARD OR PROPOSED AWARD (TO BE CONTRASTED WITH THE CIRCUMSTANCES SET OUT ABOVE OR WHERE DIRECT OR ACTIVE GOVERNMENT PARTICIPATION IN OR LIMITATION OF SUBCONTRACTOR SELECTION EXISTED), WE WILL ONLY REVIEW THE AGENCY'S APPROVAL ACTION IF FRAUD OR BAD FAITH IS SHOWN. ***"

IN THE PRESENT CASE, THE SELECTION OF THE SUBCONTRACTOR WAS THE CHOICE OF THE PRIME CONTRACTOR SUBJECT TO GOVERNMENT APPROVAL. SINCE NEITHER FRAUD NOR BAD FAITH HAS BEEN DEMONSTRATED CONCERNING THE AWARD AND REVIEW OF THIS ACTION WOULD RESULT IN OUR BECOMING INVOLVED IN CONTRACT ADMINISTRATION, THIS IS NOT THE TYPE OF SUBCONTRACT CASE WHERE WE WOULD ASSUME JURISDICTION. SEE PEN FOAM INSULATION CO., B-192764, SEPTEMBER 26, 1978, 78-2 CPD 233.

FURTHERMORE, EVEN IF THIS IS THE TYPE OF PROTEST OVER WHICH WE WOULD ASSUME JURISDICTION, IT IS UNTIMELY FILED. PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION MUST BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.2(B)(1) (1979). TO THE EXTENT THAT THE NEW BRUNSWICK PROTEST IS AGAINST THE IMPROPRIETY OF THE SOLICITATION, IT IS UNTIMELY SINCE IT WAS FILED AFTER THE CLOSING OF THE RFP. PROTESTS FILED TIMELY WITH A CONTRACTING AGENCY WHICH ARE SUBSEQUENTLY FILED IN GAO MUST BE FILED IN GAO WITHIN 10 WORKING DAYS OF FORMAL NOTIFICATION OR ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION TO BE CONSIDERED. 4 C.F.R. SEC. 20.2(A) (1979). TO THE EXTENT THAT THE REMAINDER OF THE NEW BRUNSWICK PROTEST IS THAT THE AWARD SHOULD NOT HAVE BEEN MADE TO CHEMAPEC, IT IS UNTIMELY, SINCE NEW BRUNSWICK DID NOT FILE A PROTEST WITH OUR OFFICE UNTIL ABOUT 6 WEEKS AFTER THE PROTEST TO NCI WAS DISMISSED.

THEREFORE, THE PROTEST IS DISMISSED.