B-213406.3, B-215091, B-213406.5, AUG 17, 1984, 84-2 CPD 187

B-213406.3,B-213406.5,B-215091: Aug 17, 1984

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PROTESTS FROM TWO FIRMS THAT ARE NOT IN LINE FOR AWARD IF PROTESTS ARE UPHELD ARE DISMISSED BECAUSE PROTESTERS DO NOT HAVE THE REQUISITE DIRECT AND SUBSTANTIAL INTEREST WITH REGARD TO AWARD TO BE CONSIDERED AS "INTERESTED PARTIES" UNDER GAO BID PROTEST PROCEDURES. PRIOR DECISION IS AFFIRMED ON RECONSIDERATION WHERE PROTESTER HAS NOT SHOWN ANY ERROR OF LAW OR FACT WHICH WOULD WARRANT REVERSAL OF THAT DECISION. SOLICITATION REQUIREMENTS ARE NOT OBJECTIONABLE MERELY BECAUSE THEY MIGHT BE MORE EASILY MET BY AN INCUMBENT CONTRACTOR THAN BY OTHER OFFERORS. A COMPETITIVE ADVANTAGE GAINED BY VIRTUE OF A FIRM'S INCUMBENCY IS NOT AN UNFAIR ADVANTAGE WHICH MUST BE ELIMINATED. PROPOSED PRICES WHICH WERE TOO LOW TO "FULFILL THE REQUIREMENTS OF THE CONTRACT.".

B-213406.3, B-215091, B-213406.5, AUG 17, 1984, 84-2 CPD 187

CONTRACTS - PROTESTS - INTERESTED PARTY REQUIREMENT - DIRECT INTEREST CRITERION DIGEST: 1. PROTESTS FROM TWO FIRMS THAT ARE NOT IN LINE FOR AWARD IF PROTESTS ARE UPHELD ARE DISMISSED BECAUSE PROTESTERS DO NOT HAVE THE REQUISITE DIRECT AND SUBSTANTIAL INTEREST WITH REGARD TO AWARD TO BE CONSIDERED AS "INTERESTED PARTIES" UNDER GAO BID PROTEST PROCEDURES. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED 2. PRIOR DECISION IS AFFIRMED ON RECONSIDERATION WHERE PROTESTER HAS NOT SHOWN ANY ERROR OF LAW OR FACT WHICH WOULD WARRANT REVERSAL OF THAT DECISION. CONTRACTS - NEGOTIATION - COMPETITION - INCUMBENT CONTRACTOR - COMPETITIVE ADVANTAGE 3. SOLICITATION REQUIREMENTS ARE NOT OBJECTIONABLE MERELY BECAUSE THEY MIGHT BE MORE EASILY MET BY AN INCUMBENT CONTRACTOR THAN BY OTHER OFFERORS; A COMPETITIVE ADVANTAGE GAINED BY VIRTUE OF A FIRM'S INCUMBENCY IS NOT AN UNFAIR ADVANTAGE WHICH MUST BE ELIMINATED.

WING MANUFACTURING; SIMULATORS LIMITED, INC.-- REQUEST FOR RECONSIDERATION: B-213046.3; B-215091

WING MANUFACTURING (WING) AND SIMULATORS LIMITED, INC. (SIMULATORS), PROTEST THE AWARD OF CONTRACT NO. DAAH01-84-D-A023 ON APRIL 12, 1984, TO R.S. SYSTEMS (R.S.) UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAH01-83 R- 0244 ISSUED BY THE UNITED STATES ARMY MISSILE COMMAND (ARMY), REDSTONE ARSENAL, ALABAMA, FOR AN ESTIMATED QUANTITY OF RADIO CONTROLLED MINIATURE AERIAL TARGETS (RCMAT). SIMULATORS ALSO REQUESTS RECONSIDERATION OF OUR DECISION IN SIMULATORS LIMITED, INC., B-208418.2; B-213046.2, APR. 23, 1984, 84-1 CPD PARA. 453.

WING'S PROTEST ALLEGES THAT R.S. PROPOSED PRICES WHICH WERE TOO LOW TO "FULFILL THE REQUIREMENTS OF THE CONTRACT." SIMULATORS SIMILARLY ARGUES THAT "IT IS PHYSICALLY IMPOSSIBLE TO MEET PRODUCTION AND COMPLETE THE CONTRACT BASED ON THE R.S. FIGURES ALONE." WING CONTENDS THAT THE R.S. OFFER IS UNBALANCED. FINALLY, SIMULATORS ARGUES THAT SINCE R.S. IS THE ONLY PRODUCER OF THE ELECTRONICS PACKAGE IT OFFERED, THE OTHER OFFERORS WERE PLACED AT A COMPETITIVE DISADVANTAGE.

WE DISMISS THE PROTESTS.

WHILE WE NOTE THAT A NUMBER OF THE ISSUES RAISED HERE WERE ALREADY ADDRESSED IN OUR DISMISSAL OF THE PROTEST OF THE OFFEROR SUBMITTING THE SECOND LOWEST PRICED OFFER, IN THE MATTER OF CARL GOLDBERG MODELS, INC., B-213046.4, MAY 22, 1984, 84-1 CPD PARA. 539, NEITHER WING NOR SIMULATORS IS ELIGIBLE TO MAINTAIN THIS PROTEST. UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.1(A) (1983), A PARTY MUST BE "INTERESTED" IN ORDER TO HAVE ITS PROTEST CONSIDERED BY OUR OFFICE. DETERMINING WHETHER A PARTY IS SUFFICIENTLY INTERESTED INVOLVES CONSIDERATION OF THE PARTY'S STATUS IN RELATION TO THE PROCUREMENT. ACCORDING TO THE RFP, AWARD WAS TO BE MADE TO THE OFFEROR SUBMITTING THE LOWEST PRICED, TECHNICALLY ACCEPTABLE OFFER. THE AGENCY REPORT INDICATES THAT SIMULATORS SUBMITTED THE FOURTH LOWEST PRICED AND WING SUBMITTED THE HIGHEST PRICED OF SEVEN TECHNICALLY ACCEPTABLE OFFERS. THEREFORE, NEITHER PROTESTER IS AN "INTERESTED PARTY" SINCE NEITHER WOULD BE IN LINE FOR AWARD IF THEIR PROTESTS WERE UPHELD. PLURIBUS PRODUCTS, INC., B-210444, MAR. 7, 1983, 83-1 CPD PARA. 226.

IN A LETTER DATED JUNE 22, 1984, WING ARGUES THAT, OF THE SEVEN TECHNICALLY ACCEPTABLE OFFERS, ONLY ITS OFFER AT ITS PRICE WILL GUARANTEE SUCCESSFUL PERFORMANCE. SIMILARLY, IN A LETTER DATED JULY 25, 1984, WING ARGUES THAT THE OTHER SIX OFFERORS WHO OFFERED LOWER PRICES ARE NOT TECHNICALLY QUALIFIED.

WE WILL NOT CONSIDER WING'S ALLEGATION THAT IT IS THE ONLY TECHNICALLY CAPABLE OFFEROR, RAISED FOR THE FIRST TIME OVER 2 MONTHS AFTER AWARD WAS MADE. IN OUR OPINION, WING COULD AND SHOULD HAVE ADVANCED THIS ARGUMENT IN ITS INITIAL TIMELY PROTEST LETTER. OUR PROCEDURES DO NOT CONTEMPLATE THE UNWARRANTED PIECEMEAL DEVELOPMENT OF PROTEST ISSUES. SEE AIL WEST, B-190239, JAN. 17, 1978, 78-1 CPD PARA. 38.

B-213046.5

SIMULATORS REQUESTS THAT WE RECONSIDER OUR DECISION IN THE MATTER OF SIMULATORS LIMITED, INC., B-208418.2; B-213046.2, SUPRA. IN THAT DECISION, WE DENIED SIMULATORS' ARGUMENT THAT IT WAS PREJUDICED BY THE FACT THAT THE ARMY SENT AN RFP AMENDMENT TO ALL FIRMS ORIGINALLY SOLICITED RATHER THAN TO ONLY THOSE FIRMS REMAINING IN THE COMPETITIVE RANGE IN ACCORDANCE WITH DEFENSE ACQUISITION REGULATION, SEC. 3 805.4(B), REPRINTED IN 32 C.F.R. PTS. 1-39 (1983). IN ADDITION, WE DISMISSED AS UNTIMELY SIMULATORS' ARGUMENT THAT THE SPECIFICATIONS FAVORED THE EVENTUAL AWARDEE BECAUSE SIMULATORS DID NOT FILE ITS PROTEST PRIOR TO THE DUE DATE FOR SUBMISSION OF INITIAL PROPOSALS IN ACCORD WITH OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 21.2(B)(1) (1983).

ALTHOUGH SIMULATORS REITERATES ITS COMPLAINT ABOUT THE PROCEDURAL ERROR MADE BY THE ARMY IN SENDING THE RFP AMENDMENT TO ALL THE OFFERORS SOLICITED, SIMULATORS HAS FAILED TO SHOW IN ITS REQUEST FOR RECONSIDERATION HOW IT WAS PREJUDICED BY THE ARMY'S ERROR. WE THEREFORE AFFIRM OUR PRIOR DECISION IN THIS REGARD.

SIMULATORS ARGUES THAT ITS PROTEST AGAINST THE COMPETITIVE ADVANTAGE OF THE AWARDEE, A COMPANY WITH PRIOR FEDERAL CONTRACT EXPERIENCE, SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY FOR FAILURE TO PROTEST PRIOR TO THE DUE DATE FOR INITIAL PROPOSALS BECAUSE THE COMPETITIVE ADVANTAGE WAS ALLEGEDLY NOT KNOWN TO SIMULATORS PRIOR TO WHEN IT SUBMITTED ITS PROTEST. ALTHOUGH WE DISAGREE WITH SIMULATORS ON THE TIMELINESS OF THIS POINT, WE HAVE ALREADY ADDRESSED THIS ISSUE IN REGARD TO THIS PROCUREMENT AND STATED THAT SOLICITATION REQUIREMENTS ARE NOT OBJECTIONABLE MERELY BECAUSE THEY MIGHT BE MORE EASILY MET BY AN INCUMBENT CONTRACTOR THAN BY OTHER OFFERORS; A COMPETITIVE ADVANTAGE GAINED BY VIRTUE OF A FIRM'S INCUMBENCY IS NOT AN UNFAIR ADVANTAGE WHICH MUST BE ELIMINATED. CARL GOLDBERG MODELS, INC., B-213046.4, SUPRA.

SINCE SIMULATORS HAS NOT SHOWN ANY ERROR OF FACT OR LAW IN OUR INITIAL DECISION, IT IS AFFIRMED.

CONCLUSION

WING'S AND SIMULATORS' PROTESTS AGAINST AWARD TO R.S., B-213046.3 AND B-215091 ARE DISMISSED. OUR DECISION IN SIMULATORS LIMITED, INC., B-208418.2; B-213046.2, SUPRA, IS AFFIRMED.