B-199366, FEB 6, 1981

B-199366: Feb 6, 1981

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WHERE OFFEROR IS WHOLLY OWNED SUBSIDIARY OF PROTESTER AND PRESIDENT OF BOTH IS SAME INDIVIDUAL. PROTESTER IS "INTERESTED PARTY" WITHIN MEANING OF GAO BID PROTEST PROCEDURES SINCE IT HAS CLEAR ECONOMIC INTEREST IN OUTCOME OF PROTEST. 2. PROTEST CONTENDING AGENCY REFUSED TO PROVIDE ADEQUATE INFORMATION PRIOR TO PROPOSAL DUE DATE AND TO PROVIDE ADEQUATE TIME TO PREPARE AND SUBMIT BEST AND FINAL OFFER IS DENIED BECAUSE RECORD INDICATES ALTHOUGH PROTESTER FAILED TO ATTEND EITHER OF TWO PRE PROPOSAL CONFERENCES. IT WAS SENT MINUTES OF SUCH MEETINGS. AGENCY ATTEMPTED TO ACCOMMODATE PROTESTER IN EVERY REASONABLE WAY AND NO BEST AND FINAL OFFERS WERE SOLICITED FROM ANY OFFEROR. 3. PROTEST ALLEGATION THAT PROTESTER IS NOT SUBJECT TO REQUIREMENT THAT IT BE AUTHORIZED TO DO BUSINESS IN COUNTRY WHERE CONTRACT IS TO BE PERFORMED AND HAS OBTAINED ALL NECESSARY LICENSES AND PERMITS IS WITHOUT MERIT WHERE PROTESTER OFFERS NOTHING IN SUPPORT OF ALLEGATION.

B-199366, FEB 6, 1981

DIGEST: 1. WHERE OFFEROR IS WHOLLY OWNED SUBSIDIARY OF PROTESTER AND PRESIDENT OF BOTH IS SAME INDIVIDUAL, PROTESTER IS "INTERESTED PARTY" WITHIN MEANING OF GAO BID PROTEST PROCEDURES SINCE IT HAS CLEAR ECONOMIC INTEREST IN OUTCOME OF PROTEST. 2. PROTEST CONTENDING AGENCY REFUSED TO PROVIDE ADEQUATE INFORMATION PRIOR TO PROPOSAL DUE DATE AND TO PROVIDE ADEQUATE TIME TO PREPARE AND SUBMIT BEST AND FINAL OFFER IS DENIED BECAUSE RECORD INDICATES ALTHOUGH PROTESTER FAILED TO ATTEND EITHER OF TWO PRE PROPOSAL CONFERENCES, IT WAS SENT MINUTES OF SUCH MEETINGS, AGENCY ATTEMPTED TO ACCOMMODATE PROTESTER IN EVERY REASONABLE WAY AND NO BEST AND FINAL OFFERS WERE SOLICITED FROM ANY OFFEROR. 3. PROTEST ALLEGATION THAT PROTESTER IS NOT SUBJECT TO REQUIREMENT THAT IT BE AUTHORIZED TO DO BUSINESS IN COUNTRY WHERE CONTRACT IS TO BE PERFORMED AND HAS OBTAINED ALL NECESSARY LICENSES AND PERMITS IS WITHOUT MERIT WHERE PROTESTER OFFERS NOTHING IN SUPPORT OF ALLEGATION.

SECURITY ASSISTANCE FORCES & EQUIPMENT INTERNATIONAL, INC.:

SECURITY ASSISTANCE FORCES & EQUIPMENT INTERNATIONAL, INC. (SAFE INTERNATIONAL) HAS PROTESTED BEFORE AWARD SEVERAL ALLEGED IMPROPRIETIES OCCURRING IN CONNECTION WITH REQUEST FOR PROPOSALS (RFP) NO. DAJA37-80 R- 0331 ISSUED BY THE U. S. ARMY CONTRACTING AGENCY, EUROPE. THE RFP CALLED FOR PROPOSALS TO INSTALL INTRUSION DETECTION SYSTEMS IN THE AREA OF AUGSBURG, FEDERAL REPUBLIC OF GERMANY (FRG). THE PROTESTER CONTENDS THE PROCUREMENT WAS IMPROPERLY CONDUCTED BECAUSE THE ARMY REFUSED TO ANSWER FULLY AND PROMPTLY ITS QUESTIONS REGARDING THE SOLICITATION, FAILED TO PROVIDE DETAILS OF A PRE-PROPOSAL CONFERENCE, PROVIDED INSUFFICIENT TIME TO PREPARE AND SUBMIT BEST AND FINAL OFFERS, AND REFUSED TO PERMIT EXAMINATION OF A CONTRACTOR-INSTALLED PASSIVE INTRUSION SYSTEM IN ASCHAFFENBURG. FOR REASONS DISCUSSED BELOW, THIS PROTEST IS DENIED.

THE RECORD INDICATES SAFE INTERNATIONAL DID NOT ATTEND A PRE PROPOSAL CONFERENCE IN AUGSBURG ON MAY 27 BUT SENT A LETTER WITH 14 QUESTIONS AND A REQUEST FOR PERMISSION TO EXAMINE A CONTRACTOR INSTALLED SYSTEM IN ASCHAFFENBURG. FOR THIS REASON, AND BECAUSE SOME RFPS HAD BEEN SENT TO THE WRONG ADDRESSES, THE ARMY SCHEDULED ANOTHER CONFERENCE FOR JUNE 19, EXTENDED THE CLOSING DATE FOR RECEIPT OF PROPOSALS FROM JUNE 13 TO JUNE 30, AND INFORMED THE PROTESTER ITS QUESTIONS WOULD BE ANSWERED AT THE SECOND CONFERENCE. THE PROTESTER AGAIN MISSED THE CONFERENCE AT WHICH THE ANSWERS TO HIS QUESTIONS WERE DISTRIBUTED TO ALL ATTENDEES AND AN INSTALLED SYSTEM WAS AVAILABLE FOR EXAMINATION. THE ANSWERS AND A SUMMARY OF THE CONFERENCE WERE SENT TO THE PROTESTER. HOWEVER, THE PROTESTER AGAIN INSISTED IT BE PERMITTED TO EXAMINE THE SYSTEM IN ASCHAFFENBURG "WHICH IS CLOSER TO FRANKFURT" BECAUSE OF ITS CONCERN AS TO WHETHER A CONTRACTOR-INSTALLED SYSTEM WAS CAPABLE OF FUNCTIONING AS A DETECTOR. THE ARMY AGAIN REFUSED BUT GAVE ITS ASSURANCE THE SYSTEM COULD BE AND HAD BEEN SUCCESSFULLY INSTALLED BY QUALIFIED CONTRACTORS. THE RECORD ALSO INDICATES THAT 11 LETTERS FROM THE PROTESTER TO THE ARMY SENT BETWEEN MAY 27 AND JUNE 30 WERE ACKNOWLEDGED PROMPTLY AND ANSWERED ORALLY AND IN WRITING AT THE SECOND CONFERENCE AND IN A VERY DETAILED LETTER OF JUNE 24, AS WELL AS IN OTHER LETTERS FROM THE ARMY.

ON JUNE 30, SEVEN PROPOSALS WERE RECEIVED INCLUDING ONE FROM SAFE EXPORT CORPORATION WHICH WAS SUBMITTED "UNDER PROTEST" AND OFFERED THE SECOND HIGHEST PRICE OF THE SEVEN PROPOSALS. AFTER FINDING THAT ADEQUATE COMPETITION EXISTED, THE PRICE WAS REASONABLE AND THE LOW OFFEROR WAS RESPONSIBLE, THE ARMY DETERMINED AWARD COULD BE MADE WITHOUT DISCUSSIONS AND BEST AND FINAL OFFERS. BECAUSE THE PROCUREMENT WAS OF AN URGENT NATURE, THE ARMY OBTAINED APPROVAL IN ACCORDANCE WITH DEFENSE ACQUISITION REGULATION 2-407.8(B)(3) (1976 ED.) AND MADE AN AWARD TO THE LOW OFFEROR ON AUGUST 1, NOTWITHSTANDING THIS PROTEST.

THE ARMY CHALLENGES SAFE INTERNATIONAL'S STATUS AS AN "INTERESTED PARTY" WITHIN THE MEANING OF OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.1(A) (1980). IT POINTS OUT THAT ALTHOUGH SAFE OHG, A FRG REGISTERED COMPANY, WAS SOLICITED, SAFE INTERNATIONAL ACKNOWLEDGED THE AMENDMENTS TO THE SOLICITATION, SAFE EXPORT SUBMITTED THE PROPOSAL AND SAFE INTERNATIONAL SUBMITTED THE PROTEST. SAFE EXPORT WAS IDENTIFIED IN THE PROPOSAL AS A SUBSIDIARY OF SAFE INTERNATIONAL, WHICH EXPLAINS THAT IT IS THE PARENT COMPANY OF SAFE EXPORT AND OWNS 100 PERCENT OF ITS STOCK. IN ADDITION, THE CORRESPONDENCE FROM ALL THREE COMPANIES IS SIGNED BY THE SAME INDIVIDUAL.

OUR DECISIONS INDICATE THAT NON-OFFERORS SUCH AS SUBCONTRACTORS, LABOR ORGANIZATIONS AND INDUSTRIAL ASSOCIATIONS MAY BE CONSIDERED AS INTERESTED PARTIES WHERE THERE IS A POSSIBILITY THAT RECOGNIZABLE ESTABLISHED INTERESTS WILL BE INADEQUATELY PROTECTED IF OUR PROTEST FORUM IS RESTRICTED SOLELY TO OFFERORS AND BIDDERS. SEE CARDION ELECTRONICS, B-193752, JULY 8, 1979, 79-1 CPD 406 AND DIE MESH CORPORATION, 58 COMP.GEN. 11 (1978), 78-2 CPD 374. UNDER THESE GUIDELINES, WE BELIEVE THAT SAFE INTERNATIONAL, AS THE PARENT COMPANY OF SAFE EXPORT, CLEARLY HAS AN ECONOMIC INTEREST IN THE OUTCOME OF THIS PROTEST AND IS AN "INTERESTED PARTY" FOR PURPOSES OF PURSUING THIS PROTEST.

SAFE INTERNATIONAL CONTENDS IT HAD FOUND THAT INTRUSION SYSTEMS INSTALLED BY THE GOVERNMENT DID NOT FUNCTION PROPERLY AND IT SUSPECTED CONTRACTOR- INSTALLED SYSTEMS WOULD HAVE SIMILAR PROBLEMS. THUS, IT BELIEVED INSPECTION OF A CONTRACTOR-INSTALLED SYSTEM IN ASCHAFFENBURG WAS ESSENTIAL TO THE PREPARATION OF A REALISTIC OFFER. THE ARMY STATES ITS PAST EXPERIENCE INDICATES THAT DIFFERENT BUILDING DESIGNS CAN IMPACT SIGNIFICANTLY UPON INSTALLATION COSTS AND THAT A VISIT TO THE ACTUAL INSTALLATION SITES, AS URGED BY THE RFP, WAS VITAL TO PROPOSAL PREPARATION. IT POINTS OUT THAT ALL PROSPECTIVE OFFERORS WERE GIVEN THE OPPORTUNITY TO VISIT THE AUGSBURG AREA INSTALLATION SITES AND TO INSPECT A GOVERNMENT-INSTALLED SYSTEM. HOWEVER, THE ARMY CONSIDERED IT WAS UNNECESSARY FOR OFFERORS TO EXAMINE THE CONTRACTOR-INSTALLED SYSTEM IN ASCHAFFENBURG AND FOR THAT REASON REFUSED THE PROTESTER'S REQUEST.

IN EFFECT, THE PROTESTER CHALLENGES THE SUFFICIENCY FOR PROPOSAL PREPARATION PURPOSES OF THE SPECIFICATIONS AND INFORMATION OFFERED BY THE ARMY THROUGHOUT THE PROCUREMENT PROCESS. AS POINTED OUT ABOVE, THIS INFORMATION INCLUDED TWO PRE-PROPOSAL CONFERENCES AND VISITS TO THE ACTUAL SITES WHERE THE EQUIPMENT WAS TO BE INSTALLED, NEITHER OF WHICH THE PROTESTER ATTENDED. MOREOVER, THE ARMY PROMPTLY AND REASONABLY ANSWERED IN WRITING ALL QUESTIONS PRESENTED AND ASSURED THE PROTESTER THE SYSTEM HAD BEEN SUCESSFULLY INSTALLED BY CONTRACTORS. SEVEN TIMELY PROPOSALS, INCLUDING ONE FROM SAFE EXPORT, WERE RECEIVED AND MAXIMUM COMPETITION UNDER THE CIRCUMSTANCES AND A REASONABLE PRICE WERE OBTAINED. THEREFORE, WE BELIEVE THE ARMY ACTED REASONABLY IN REFUSING TO ARRANGE A VISIT TO ASCHAFFENBURG SOLELY FOR THE PROTESTER AND IN REFUSING TO EXTEND THE CLOSING DATE FOR RECEIPT OF PROPOSALS. A PROPER PROCUREMENT DOES NOT REQUIRE THAT THE PROCURING AGENCY REMOVE EVERY UNCERTAINTY FROM EVERY PROSPECTIVE OFFEROR'S MIND.

AS THE RECORD INDICATES AWARD WAS MADE ON THE BASIS OF INITIAL PROPOSALS AND THAT NO BEST AND FINAL OFFERS WERE SOLICITED FROM ANY OFFERORS, WE SEE NO MERIT TO THE PROTESTER'S CONTENTION THAT INSUFFICIENT TIME WAS ALLOWED FOR THE PREPARATION AND SUBMISSION OF BEST AND FINAL OFFERS.

THE RECORD CLEARLY DEMONSTRATES THE CONTRACTING OFFICER ATTEMPTED TO ACCOMMODATE THE PROTESTER TO THE MAXIMUM PRACTICAL EXTENT IN ALL OTHER RESPECTS. ANY FURTHER ATTEMPT TO MEET THE DEMANDS OF THE PROTESTER SUCH AS EXTENDING THE CLOSING DATE FOR RECEIPT OF PROPOSALS BEYOND JUNE 30, WOULD HAVE DELAYED THE INSTALLATION OF URGENTLY NEEDED SYSTEMS AND MIGHT HAVE BEEN UNFAIR TO THE OTHER COMPETITORS. UNDER THE CIRCUMSTANCES, WE KNOW OF NO BASIS IN LAW OR LOGIC TO SUPPORT A POSITION THAT THE PROTESTER WAS ENTITLED TO MORE THAN IT RECEIVED.

SAFE HAS ALSO OBJECTED TO ONE OF THE GENERAL PROVISIONS WHICH WOULD BE IN ANY CONTRACT RESULTING FROM THE SOLICITATION, TO THE EFFECT THAT THE CONTRACTOR WARRANTS HE IS DULY AUTHORIZED TO DO BUSINESS IN THE COUNTRY IN WHICH THE CONTRACT IS TO BE PERFORMED, THAT HE HAS OBTAINED ALL LICENSES AND PERMITS NECESSARY FOR PERFORMANCE OF THE CONTRACT AND THAT HE WILL COMPLY WITH ALL LAWS AND REGULATIONS OF SUCH COUNTRY DURING CONTRACT PERFORMANCE. SAFE ARGUES THAT THIS PROVISION IS INAPPLICABLE TO AN AMERICAN FIRM PERFORMING SERVICES FOR UNITED STATES FORCES ON AN UNITED STATES - CONTROLLED INSTALLATION ON AN "EX TERRITORIAL" BASIS WITHIN THE FRG. THE ARMY DISAGREES WITH SAFE'S ASSERTION, FINDING NOTHING IN INTERNATIONAL LAW OR THE NATO STATUS OF FORCES AGREEMENT TO SUPPORT IT. SAFE HAS NOT SHOWN OTHERWISE AND ITS PROTEST ON THIS ISSUE IS THEREFORE ALSO DENIED.