B-204330.2,L/M, DEC 8, 1981, OFFICE OF GENERAL COUNSEL

B-204330.2,L/M: Dec 8, 1981

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INC.: WE HAVE RECEIVED YOUR TELEX AND LETTER OF NOVEMBER 13. WAS THE APPARENT THIRD-LOW BIDDER. THAT THE TWO LOWER BIDDERS SHOULD HAVE BEEN ELIMINATED FROM COMPETITION DUE TO MISTAKES IN THEIR BIDS. YOU QUESTION WHETHER THEY HAVE THE EXPERIENCE REQUIRED BY THE SOLICITATION. SINCE EISENMAN AND ELLIOTT ARE PRIMARILY ELECTRICAL CONTRACTORS. WE HELD THAT YOUR COMPLAINT WAS PREMATURE. THE SAME THING IS TRUE OF THIS COMPLAINT. WE WILL NOT CONSIDER COMPLAINTS UNTIL THE AGENCY HAS REVIEWED THEM. YOU ACKNOWLEDGED THAT YOU HAVE NOT FILED A COMPLAINT WITH EPA.

B-204330.2,L/M, DEC 8, 1981, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

RAMON CARRION, ESQ., MISENER MARINE CONSTRUCTION, INC.:

WE HAVE RECEIVED YOUR TELEX AND LETTER OF NOVEMBER 13, 1981, COMPLAINING OF THE AWARD OF A CONTRACT BY THE PUERTO RICO AQUEDUCT AND SEWER AUTHORITY, AN ENVIRONMENTAL PROTECTION AGENCY (EPA) GRANTEE, TO EISENMAN AND ELLIOTT UNDER EPA PROJECT NO. C-72-79 FOR AGUADA OCEAN OUTFALL, PUERTO RICO.

YOU STATE THAT AT BID OPENING ON APRIL 21, 1981, MISENER MARINE CONSTRUCTION, INC. WAS THE APPARENT THIRD-LOW BIDDER, AND THAT THE TWO LOWER BIDDERS SHOULD HAVE BEEN ELIMINATED FROM COMPETITION DUE TO MISTAKES IN THEIR BIDS. IN ADDITION, YOU QUESTION WHETHER THEY HAVE THE EXPERIENCE REQUIRED BY THE SOLICITATION, SINCE EISENMAN AND ELLIOTT ARE PRIMARILY ELECTRICAL CONTRACTORS.

IN JULY 1981, YOU COMPLAINED TO OUR OFFICE OF THIS SAME AWARD ON THE BASIS OF THE CONTRACTOR'S ALLEGED NONRESPONSIVENESS. IN OUR DECISION MISENER MARINE CONSTRUCTION, INC., B-204330, AUGUST 20, 1981, 81-2 CPD 162 (COPY ENCLOSED), WE HELD THAT YOUR COMPLAINT WAS PREMATURE. THE SAME THING IS TRUE OF THIS COMPLAINT. WHERE A GRANTOR AGENCY SUCH AS EPA MAINTAINS AN ESTABLISHED PROCEDURE FOR RESOLVING COMPLAINTS CONCERNING PROCUREMENTS BY ITS GRANTEES, WE WILL NOT CONSIDER COMPLAINTS UNTIL THE AGENCY HAS REVIEWED THEM.

IN A TELEPHONE CONVERSATION ON NOVEMBER 18, 1981, WITH MARILYNN EATON OF OUR STAFF, YOU ACKNOWLEDGED THAT YOU HAVE NOT FILED A COMPLAINT WITH EPA; THE AGENCY CONFIRMS THIS. ACCORDINGLY WE AGAIN ADVISE YOU THAT THIS MATTER SHOULD FIRST BE PRESENTED TO EPA IN ACCORD WITH THE PROCEDURES SET FORTH AT 40 C.F.R. SEC. 35.939 (1981).