[Protest of Army Issuance of Delivery Order]

B-211891,B-211891.2,B-211891.3,B-211891.4: Nov 18, 1983

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Three firms protested the issuance of an Army delivery order. Two of the firms protested the Army's refusal to include them as mobilization base producers. One of these protesters also argued that the Army awarded a disproportionate share of the quantities required to a large business. GAO held that there was no basis upon which to question the Army's approach to meeting its industrialization needs and pointed out that the Army issued a competitive solicitation for the purpose of expanding the mobilization base for the items in question. GAO further held that, since the first protester was not eligible for an award, it could not be considered an interested party for purposes of the procurement. In addition, the second firm protested the Army's decision to allow the current mobilization base producers to bid on the solicitation, contending that they would enjoy an unfair advantage. GAO held that the Government need not equalize such an advantage unless it is the result of unfair Government action, which did not occur here. The third protester, one of two awardees under the delivery order, contended that: (1) the other awardee should be debarred for an antitrust conviction; (2) the Army acted unfairly in not awarding it a sufficient production quantity; (3) the other awardee's basic ordering agreement (BOA) was invalid because it was not specific enough; (4) the other awardee was using rented foreign-owned machines to produce its product, contrary to the mobilization base concept; and (5) the Army was biased against it because it conducted an extensive preaward survey of the protester only. GAO held that: (1) whether the other awardee should be debarred for its antitrust conviction was a matter for the Army to decide; (2) the reason for the shortfall in the production quantity solicited was an administrative error and that any correction of the error is a matter for Army's discretion; (3) the other awardee's BOA was not rendered invalid by the lack of specificity, because a BOA is not a binding contract; (4) the rented machinery is unlikely to be unavailable in a national emergency because the machinery is in the United States and in the possession of the other awardee; and (5) the protester did not demonstrate any competitive harm due to the Army's preaward survey or any bias by the Army. Accordingly, the protests were denied in part and dismissed in part.