B-218374, JUN 21, 1985, 85-1 CPD 709

B-218374: Jun 21, 1985

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS. ALLEGATIONS OF COLLUSION AND RESTRAINT OF TRADE ON THE PART OF A SUBCONTRACTOR ARE MATTERS FOR THE DEPARTMENT OF JUSTICE. GENERAL ACCOUNTING OFFICE - JURISDICTION - CONTRACTS - DISPUTES - BETWEEN PRIVATE PARTIES 3.SUPPLIERS ARE UNDER NO LEGAL OBLIGATION TO OFFER UNIFORM TERMS TO ALL POTENTIAL BIDDERS ON FEDERAL CONTRACTS. THE PROTESTER'S DISAGREEMENT WITH VENDOR OVER THE PRICE QUOTED FOR A REQUIRED ITEM IS A DISPUTE BETWEEN PRIVATE PARTIES AND. IS BEYOND THE SCOPE OF GAO'S BID PROTEST FUNCTION. WHEN IT IS NO LONGER CLEAR WHICH OFFEROR IS LOW. WHEN THE PROTESTER IS DISPLACED AS THE LOW OFFEROR. PROTESTER HAS NOT MET ITS BURDEN OF PROOF ON ITS ALLEGATION THAT ITS COMPETITORS WERE GIVEN A GREATER OPPORTUNITY TO NEGOTIATE WITH THE GOVERNMENT WHEN THE RECORD INDICATES THAT THERE WAS ONLY ONE ROUND OF NEGOTIATIONS AND THAT THE PROTESTER WAS NOTIFIED OF THIS FACT IN WRITING AND WAS GIVEN AN EQUAL OPPORTUNITY TO PARTICIPATE.

B-218374, JUN 21, 1985, 85-1 CPD 709

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS DIGEST: 1. PROTEST AGAINST ALLEGED IMPROPRIETIES IN A SOLICITATION, RAISED FOR THE FIRST TIME IN THE PROTESTER'S COMMENTS ON AN AGENCY REPORT, IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS. BIDS - COLLUSIVE BIDDING - REFERRAL TO JUSTICE DEPARTMENT 2. ALLEGATIONS OF COLLUSION AND RESTRAINT OF TRADE ON THE PART OF A SUBCONTRACTOR ARE MATTERS FOR THE DEPARTMENT OF JUSTICE, NOT THE GAO. GENERAL ACCOUNTING OFFICE - JURISDICTION - CONTRACTS - DISPUTES - BETWEEN PRIVATE PARTIES 3.SUPPLIERS ARE UNDER NO LEGAL OBLIGATION TO OFFER UNIFORM TERMS TO ALL POTENTIAL BIDDERS ON FEDERAL CONTRACTS; THEREFORE, THE PROTESTER'S DISAGREEMENT WITH VENDOR OVER THE PRICE QUOTED FOR A REQUIRED ITEM IS A DISPUTE BETWEEN PRIVATE PARTIES AND, AS SUCH, IS BEYOND THE SCOPE OF GAO'S BID PROTEST FUNCTION. CONTRACTS - PROTESTS - BURDEN OF PROOF - ON PROTESTER 4. PROTESTER HAS FAILED TO CARRY ITS BURDEN OF PROOF WHERE IT OFFERS NOTHING MORE THAN ITS SUSPICION TO SUPPORT THE ALLEGATION THAT THE PREAWARD SURVEY TEAM IMPROPERLY DISCLOSED CONFIDENTIAL INFORMATION TO SOMEONE OUTSIDE OF THE GOVERNMENT. CONTRACTS - SMALL BUSINESS CONCERNS - AWARDS - SMALL BUSINESS ADMINISTRATION'S AUTHORITY - CERTIFICATE OF COMPETENCY - AGENCY REQUEST THAT SBA SUSPEND COC PROCEEDING 5. WHEN IT IS NO LONGER CLEAR WHICH OFFEROR IS LOW, THE CONTRACTING OFFICER PROPERLY MAY OPEN NEGOTIATIONS AND ASK THE SMALL BUSINESS ADMINISTRATION TO SUSPEND ITS CONSIDERATION OF THE OFFEROR THAT INITIALLY APPEARED TO BE LOW BUT NONRESPONSIBLE. MOREOVER, WHEN THE PROTESTER IS DISPLACED AS THE LOW OFFEROR, THE AGENCY MAY WITHDRAW THE COC REFERRAL. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - DISCUSSION WITH ALL OFFERORS REQUIREMENT - WHAT CONSTITUTES DISCUSSION 6. PROTESTER HAS NOT MET ITS BURDEN OF PROOF ON ITS ALLEGATION THAT ITS COMPETITORS WERE GIVEN A GREATER OPPORTUNITY TO NEGOTIATE WITH THE GOVERNMENT WHEN THE RECORD INDICATES THAT THERE WAS ONLY ONE ROUND OF NEGOTIATIONS AND THAT THE PROTESTER WAS NOTIFIED OF THIS FACT IN WRITING AND WAS GIVEN AN EQUAL OPPORTUNITY TO PARTICIPATE. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - PREPARATION - COSTS DENIED 7. WHEN A PROTEST IS WITHOUT MERIT, GAO WILL DENY A CLAIM FOR PROPOSAL PREPARATION COSTS.

MONARCH ENGINEERING COMPANY:

MONARCH ENGINEERING COMPANY PROTESTS THE PROPOSED AWARD OF A CONTRACT TO ENGINEERED AIR SYSTEMS, INC., UNDER REQUEST FOR PROPOSALS (RFP) NO. F09603 -84-R-0436, ISSUED BY WARNER ROBINS AIR FORCE BASE, GEORGIA. THE PROTESTER, A SMALL BUSINESS CONCERN, ALLEGES THAT IT HAS NOT BEEN ALLOWED TO COMPETE ON AN EQUAL BASIS AND THAT THE AIR FORCE HAS NOT EVALUATED ITS PROPOSAL IN A FAIR AND HONEST MANNER.

WE DENY THE PROTEST.

BACKGROUND

THE RFP SOLICITED FIXED PRICES FOR PORTABLE WATER DISTRIBUTION SYSTEMS TO SUPPORT THE RAPID DEPLOYMENT FORCE. THE AGENCY RECEIVED THREE PROPOSALS, WITH MONARCH OFFERING THE LOWEST PRICE. THE AIR FORCE SUBSEQUENTLY REQUESTED THAT A PREAWARD SURVEY BE CONDUCTED ON MONARCH TO DETERMINE WHETHER THE COMPANY WAS CAPABLE OF PERFORMING THE CONTRACT SUCCESSFULLY. UPON COMPLETING ITS INVESTIGATION, THE SURVEY TEAM CONCLUDED THAT MONARCH LACKED THE TECHNICAL, PRODUCTION, AND QUALITY ASSURANCE CAPABILITIES NEEDED; IT THEREFORE RECOMMENDED THAT MONARCH NOT RECEIVE THE AWARD.

SINCE MONARCH IS A SMALL BUSINESS AND THE AIR FORCE HAD CONCLUDED THAT IT WAS NONRESPONSIBLE, THE MATTER WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION UNDER THE CERTIFICATE OF COMPETENCY (COC) PROGRAM. HOWEVER, APPROXIMATELY A WEEK AFTER REFERRING THIS MATTER TO SBA, THE AIR FORCE REQUESTED THAT SBA STOP ACTION UNTIL FURTHER NOTICE. THE SBA AGREED AND INFORMED MONARCH OF THE SUSPENSION.

THE REASON FOR THE AIR FORCE REQUEST WAS THAT THE AGENCY HAD DECIDED TO OPEN NEGOTIATIONS (NONE HAD BEEN CONDUCTED UP TO THIS POINT). A NEW CONTRACTING OFFICER HAD ASSUMED RESPONSIBILITY FOR THE PROCUREMENT AT THE TIME THE COC REQUEST WAS BEING FORWARDED TO SBA. SHE HAD DETERMINED THAT MONARCH'S DELIVERY SCHEDULE WAS UNCLEAR (OFFERORS HAD BEEN ASKED TO INDICATE WHETHER THEY WOULD MEET REQUIRED DELIVERY DATES OR ACCELERATE THEM) AND THAT ADDITIONAL INFORMATION ON PRICING AND TRANSPORTATION COSTS WAS NEEDED FROM ALL THREE OFFERORS BEFORE THE LOW RESPONSIBLE OFFEROR COULD ACTUALLY BE DETERMINED. THE OFFERORS THEREFORE INFORMED THAT NEGOTIATIONS WERE TO BE CONDUCTED; THEY WERE ALSO TOLD WHAT AREAS OF THEIR PROPOSALS NEEDED TO BE CLARIFIED. ALL THREE OFFERORS REVISED THEIR PROPOSALS AND, AFTER RECEIPT AND EVALUATION OF BEST AND FINALS, THE AIR FORCE CONCLUDED THAT ENGINEERED AIR SYSTEMS, NOT MONARCH, WAS NOW THE LOW OFFEROR. THE AGENCY ALSO CONCLUDED THAT THERE WAS NO FURTHER NEED FOR SBA TO CONSIDER MONARCH FOR A POSSIBLE COC.

MONARCH'S PROTEST

MONARCH PROTESTS BOTH THE AGENCY'S FINAL EVALUATION AND THE GENERAL MANNER IN WHICH THE PROCUREMENT WAS CONDUCTED. AT THE OUTSET, MONARCH POINTS OUT THAT ESLON PLASTICS, SPECIFICALLY DESIGNATED IN THE RFP AS AN ACCEPTABLE SOURCE FOR THE POLYVINYL CHLORIDE (PVC) PIPE NEEDED FOR THE CONTRACT, AT FIRST REFUSED TO QUOTE MONARCH A PRICE, ARGUING THAT IT WAS WORKING EXCLUSIVELY WITH ANOTHER COMPANY ON THE PROJECT. (THIS OTHER COMPANY WAS APPARENTLY ENGINEERED AIR SYSTEMS.) ACCORDING TO MONARCH, AFTER MUCH BADGERING, ESLON QUOTED MONARCH A PRICE THAT WAS EXTREMELY HIGH. MONARCH ULTIMATELY FOUND ANOTHER SUPPLIER OF PVC PIPE, BUT NEVERTHELESS ARGUES THAT ESLON'S TACTIC WAS COLLUSIVE AND A RESTRAINT OF FREE TRADE.

MONARCH ALSO ALLEGES THAT THE PREAWARD SURVEY TEAM RELEASED CONFIDENTIAL INFORMATION CONCERNING ITS PROPOSED SUPPLIERS. ACCORDING TO MONARCH, IT WAS RELUCTANT TO PROVIDE A LIST OF ITS INTENDED SUPPLIERS BECAUSE IT HAD LINED UP VENDORS OUTSIDE THE CIRCLE OF SPECIFIED SUPPLIERS AND DID NOT WANT THIS INFORMATION TO REACH ITS COMPETITORS. ONLY AFTER BEING ASSURED BY THE SURVEY TEAM THAT THIS INFORMATION WOULD BE KEPT CONFIDENTIAL, MONARCH STATES, DID IT AGREE TO RELEASE IT. YET, ACCORDING TO MONARCH, SHORTLY AFTER IT SUPPLIED THE LIST, IT RECEIVED A TELEPHONE CALL FROM A VENDOR THAT OFFERED TO PROVIDE ANOTHER QUOTE FOR CERTAIN MATERIALS BEFORE MONARCH PLACED ITS ORDER. MONARCH INDICATES THAT ONLY A MEMBER OF THE PREAWARD SURVEY TEAM COULD HAVE ALERTED THIS SUPPLIER OF MONARCH'S PARTICIPATION IN THE PROCUREMENT AND STATES THAT THE LEAKING OF SUCH INFORMATION COULD HAVE JEOPARDIZED MONARCH'S ABILITY TO COMPETE.

REGARDING THE AIR FORCE'S REQUEST TO SUSPEND THE COC REVIEW, THE PROTESTER IMPLIES THAT THE AGENCY FEARED THAT SBA WOULD GRANT THE COC AND THAT IT WOULD THEN BE REQUIRED TO CONTRACT WITH MONARCH.

MONARCH ALSO BELIEVES THAT IT WAS NOT GIVEN A FAIR OPPORTUNITY TO NEGOTIATE WITH THE AIR FORCE. IT POINTS OUT THAT AFTER THE COC PROCESS HAD BEEN SUSPENDED, IT RECEIVED A LETTER FROM THE CONTRACTING OFFICER ADVISING THAT NEGOTIATIONS "ARE HEREBY EXTENDED." MONARCH INTERPRETS THIS LETTER TO MEAN THAT NEGOTIATIONS WITH THE OTHER OFFERORS HAD BEEN CONDUCTED BEFORE THAT TIME. MONARCH APPEARS TO ARGUE THAT THE AIR FORCE UNFAIRLY FAVORED ITS COMPETITORS BY PROVIDING THEM WITH MORE THAN ONE OPPORTUNITY TO REVISE THEIR PROPOSALS.

FINALLY, IN ITS COMMENTS ON THE AGENCY'S PROTEST REPORT, MONARCH RAISED FOR THE FIRST TIME TWO ADDITIONAL GROUNDS FOR PROTEST. FIRST, MONARCH ARGUES THAT SINCE THE REQUIRED PIPE AND FITTINGS CAN BE SUPPLIED BY ANY MANUFACTURER WITH KNOWLEDGE OF THE PLUMBING AND ASSEMBLY AREA, THIS WAS A SIMPLE PROCUREMENT THAT SHOULD HAVE BEEN ADVERTISED, RATHER THAN NEGOTIATED. SECOND, IT ARGUES THAT THE SPECIFICATION FOR PVC PIPE WAS RESTRICTIVE-- THAT IS, IT WAS DRAFTED SO THAT THE PIPE HAD TO BE PURCHASED FROM ESLON.

BASED ON THE FOREGOING FACTS AND ARGUMENTS, MONARCH ASKS OUR OFFICE TO RECOMMEND THAT THE AIR FORCE RESOLICIT THE REQUIREMENT AND REIMBURSE MONARCH FOR THE COSTS OF PREPARING ITS ORIGINAL PROPOSAL.

AIR FORCE RESPONSE

THE AIR FORCE CONTENDS THAT MONARCH'S PROTEST IS WITHOUT MERIT. THE AGENCY FIRST POINTS OUT THAT, AS A GENERAL RULE, IT IS THE OFFEROR'S RESPONSIBILITY, NOT THE GOVERNMENT'S, TO OBTAIN QUOTES FROM VENDORS. MORE SPECIFICALLY, THE AIR FORCE DENIES THAT IT HAD ANY INVOLVEMENT IN THE DIFFICULTIES MONARCH ENCOUNTERED WHEN TRYING TO OBTAIN A QUOTE FROM ESLON. IN THE AGENCY'S OPINION, THIS WAS SOLELY A DISPUTE BETWEEN PRIVATE PARTIES. THE AIR FORCE FURTHER POINTS OUT THAT THE RFP LISTED A SECOND POTENTIAL SOURCE OF PVC PIPE AS WELL AS REFERENCED SPECIFICATIONS TO ASSIST THE OFFERORS IN THE SELECTION OF SUPPLIERS AND/OR SUBCONTRACTORS. AS A FINAL ARGUMENT, THE AGENCY NOTES THAT DESPITE MONARCH'S DIFFICULTIES WITH ESLON, THE PROTESTER WAS ABLE TO LOCATE A SUPPLIER OF PVC PIPE AND DID IN FACT SUBMIT A PROPOSAL.

AS FOR MONARCH'S ALLEGATION THAT MEMBERS OF THE PREAWARD SURVEY TEAM DISCLOSED CONFIDENTIAL INFORMATION, THE AGENCY ARGUES THAT MONARCH HAS NOT PRODUCED ANY EVIDENCE THAT THE SURVEY TEAM WAS IN FACT THE SOURCE OF THIS DISCLOSURE. THE AIR FORCE POINTS OUT THAT IT IS A COMMON PRACTICE FOR PREAWARD SURVEY TEAMS TO REQUEST INFORMATION ON VENDORS AS A MEANS OF DETERMINATION WHETHER AN OFFEROR HAS OBTAINED ADEQUATE SUPPLIERS SO THAT IT CAN PERFORM THE CONTRACT SATISFACTORILY. THE AIR FORCE STRESSES THAT MONARCH THEREFORE WAS NOT SINGLED OUT IN ANY WAY WHEN IT WAS REQUESTED TO FURNISH THIS INFORMATION. THE AGENCY FURTHER NOTES THAT THE PROCUREMENT REGULATIONS PROHIBIT THE DISCLOSURE OUTSIDE OF THE GOVERNMENT OF ANY INFORMATION ACCUMULATED BY A PREAWARD SURVEY TEAM AND THAT THE MEMBERS OF MONARCH'S SURVEY TEAM HAVE SUBMITTED SIGNED STATEMENTS DENYING THAT THEY HAVE DISCLOSED CONFIDENTIAL INFORMATION TO ANYONE NOT AUTHORIZED TO RECEIVE IT. AS FAR AS THE AIR FORCE IS CONCERNED, THEN, WHATEVER LEAK OCCURRED DID NOT ORIGINATE FROM EITHER THE SURVEY TEAM OR THE CONTRACTING AGENCY.

REGARDING THE DECISION TO WITHDRAW THE REQUEST FOR A COC, THE AIR FORCE DENIES THAT IT WAS MOTIVATED BY ANYTHING OTHER THAN THE NEED TO OPEN NEGOTIATIONS SO THAT IT COULD ACCURATELY DETERMINE THE LOW OFFEROR. THE AIR FORCE NOTES THAT A CONTRACTING OFFICER IS OBLIGATED TO OPEN NEGOTIATIONS AT ANY TIME BEFORE AWARD IF AVAILABLE INFORMATION IS INADEQUATE TO MAKE AN AWARD. UNDER THIS PROCUREMENT, THE AIR FORCE BELIEVES THAT THE CONTRACTING OFFICER WAS FULLY JUSTIFIED IN OPENING NEGOTIATIONS AS SOON AS SHE DISCOVERED THE DEFICIENCIES IN THE PROPOSED DELIVERY SCHEDULES AND TRANSPORTATION COSTS. IN THE AGENCY'S OPINION, THE SUBSEQUENT DECISION TO ASK SBA TO STOP PROCESSING THE COC CAUSED MONARCH ONLY A MINOR INCONVENIENCE, SINCE MONARCH WAS ADVISED TO STOP WORK ON THE APPLICATION ONLY 2 WORKING DAYS AFTER SBA HAD FIRST NOTIFIED IT OF THE REFERRAL. FINALLY, AS TO THE CONTRACTING OFFICER'S DECISION NOT TO REVIVE THIS COC REQUEST, THE AGENCY MAINTAINS THAT IT BECAME UNNECESSARY ONCE IT WAS DISCOVERED THAT ENGINEERED AIR SYSTEMS WAS THE LOW OFFEROR.

THE AIR FORCE ALSO DENIES THAT MONARCH WAS TREATED UNEQUALLY IN ANY WAY DURING THE NEGOTIATION PROCESS. THE AIR FORCE CONTENDS THAT MONARCH MISINTERPRETED THE LETTER THAT STATED THAT NEGOTIATIONS WERE "EXTENDED" RATHER THAN MERELY "OPENED" AND STATES THAT THIS WAS NOT THE CASE-- THE ONLY NEGOTIATIONS CONDUCTED WERE THOSE IN WHICH MONARCH PARTICIPATED.

GAO ANALYSIS

AT THE OUTSET, WE NOTE THAT UNDER OUR BID PROTEST REGULATIONS, PROTESTS BASED ON ALLEGED IMPROPRIETIES IN A SOLICITATION THAT ARE APPARENT BEFORE THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS MUST BE FILED BY THAT DATE. SEE 4 C.F.R. SEC. 21.2(A)(1) (1985). AS NOTED ABOVE, MONARCH RAISED FOR THE FIRST TIME IN ITS COMMENTS ON THE AGENCY REPORT THE TWO ARGUMENTS THAT THE PROCUREMENT SHOULD HAVE BEEN ADVERTISED RATHER THAN NEGOTIATED AND THAT THE SPECIFICATION FOR PVC PIPE WAS RESTRICTIVE. HOWEVER, THESE TWO ALLEGED IMPROPRIETIES WERE APPARENT TO MONARCH (OR SHOULD HAVE BEEN APPARENT) BEFORE THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS. CONSEQUENTLY, MONARCH SHOULD HAVE FILED A PROTEST ON THESE TWO GROUNDS BY THAT DATE. SINCE IT FAILED TO DO SO, ITS PROTEST ON THESE TWO ISSUES IS UNTIMELY, AND WE WILL NOT CONSIDER THEM ON THE MERITS. CELTECH INC., B-215830, AUGUST 1, 1984, 84-2 CPD PARA. 142.

ON THE QUESTION OF ESLON'S ALLEGED COLLUSIVE ACTIVITY AND RESTRAINT OF FREE TRADE, WE HAVE HELD THAT THIS TYPE OF ALLEGATION DOES NOT FALL UNDER OUR BID PROTEST FUNCTION, BUT IS A MATTER FOR THE DEPARTMENT OF JUSTICE. MONARCH ENTERPRISES, INC., B-208631, MAY 23, 1983, 83-1 CPD PARA. 548. ARE UNAWARE OF ANY LEGAL REQUIREMENT, AND NONE HAS BEEN CITED, FOR SUPPLIERS TO OFFER UNIFORM TERMS TO ALL POTENTIAL FEDERAL CONTRACTORS. POINT INDUSTRIES, INC., B-204594, DEC. 24, 1981, 81-2 CPD PARA. 495. THE SETTING OF SUBCONTRACT AND SUPPLIER PRICES IS GENERALLY A MATTER LEFT TO THE PARTIES INVOLVED TO DETERMINE THROUGH NORMAL COMMERCIAL PROCEDURES.

UNDER THE PRESENT PROCUREMENT, MONARCH CONSIDERED ESLON'S QUOTE TO BE EXCESSIVE AND IN THE END LOCATED ANOTHER SUPPLIER FOR PVC PIPE. THE PROTESTER HAS PRESENTED NO EVIDENCE THAT THE AIR FORCE HAD ANY INVOLVEMENT IN ESLON'S PRICING DECISION. THUS, THE CONTROVERSY BETWEEN MONARCH AND ESLON WAS ESSENTIALLY A DISPUTE BETWEEN PRIVATE PARTIES AND, AS SUCH, IS ALSO BEYOND THE SCOPE OF OUR BID PROTEST FUNCTION. SEE, FOR EXAMPLE, GARRETT CORP., PNEUMATIC SYSTEMS DIVISION, B-207294, MAY 10, 1982, 82-1 CPD PARA. 451.

REGARDING MONARCH'S ALLEGATION THAT THE PREAWARD SURVEY TEAM DISCLOSED CONFIDENTIAL INFORMATION, WE NOTE THAT WHEN IMPROPER CONDUCT ON THE PART OF GOVERNMENT OFFICIALS IS ALLEGED, THE PROTESTER HAS THE BURDEN OF PROOF, AND OUR OFFICE WILL NOT RELY ON INFERENCE ALONE TO FIND SUCH MISCONDUCT. DAVEY COMPRESSOR CO., B-215028, NOV. 30, 1984, 84-2 CPD PARA. 589. IN OUR OPINION, MONARCH HAS PRESENTED NOTHING MORE THAN ITS OWN SUSPICIONS TO SUPPORT ITS ALLEGATION OF IMPROPER DISCLOSURE. IN LIGHT OF THIS, AND WHEN FACED WITH THE TEAM MEMBERS' WRITTEN DENIALS OF ANY IMPROPER CONDUCT, WE CAN ONLY CONCLUDE THAT MONARCH HAS FAILED TO MEET ITS BURDEN OF PROOF ON THIS ISSUE.

AS TO WHETHER THE AIR FORCE SHOULD HAVE STOPPED THE COC PROCESS ONCE IT BEGAN, OUR OFFICE HAS RECOGNIZED THAT, UNDER CERTAIN CIRCUMSTANCES, A CONTRACTING AGENCY MAY WITHDRAW A COC REFERRAL. SEE, FOR EXAMPLE, C.W. GIRARD, C.M., B-216004, DEC. 26, 1984, 84-2 CPD PARA. 704; F.J. WASHINGTON FUEL OIL INC., B-202697, AUG. 11, 1981, 81-2 CPD PARA. 119. WE HAVE ALSO RECOGNIZED THAT WHEN A CONTRACTING OFFICER BECOMES AWARE OF DEFICIENCIES OR AMBIGUITIES IN INITIAL PROPOSALS, HE IS REQUIRED TO OPEN NEGOTIATIONS AND CONDUCT MEANINGFUL DISCUSSIONS, POINTING OUT THE DEFICIENCIES AND GIVING OFFERORS THE OPPORTUNITY TO REVISE THEIR PROPOSALS. AMERICAN MANAGEMENT SYSTEMS, INC., B-215283, AUG. 20, 1984, 84-2 CPD PARA. 199.

IN MONARCH'S CASE, WE FIND NOTHING IMPROPER WITH THE CONTRACTING OFFICER'S DECISION TO STOP THE COC PROCESS. AS NOTED ABOVE, THE CURRENT CONTRACTING OFFICER HAD REPLACE THE OFFICIAL ORIGINALLY RESPONSIBLE FOR CONDUCTING THE PROCUREMENT AND, AFTER REVIEWING THE SITUATION, HAD CONCLUDED THAT THERE WERE DEFICIENCIES IN THE PROPOSALS REQUIRING THE OPENING OF NEGOTIATIONS-- AS INDICATED ABOVE, THE PROPER ACTION UNDER THE CIRCUMSTANCES. SINCE AT THAT POINT THE CONTRACTING OFFICER WAS UNCERTAIN WHETHER MONARCH WAS THE ACTUAL LOW OFFEROR, THE COC REVIEW WAS CLEARLY PREMATURE AND, THEREFORE, WAS PROPERLY SUSPENDED UNTIL NEGOTIATIONS HAD BEEN COMPLETED AND BEST AND FINAL OFFERS HAD BEEN EVALUATED. ONCE THE CONTRACTING OFFICER HAD DETERMINED THAT ENGINEERED AIR SYSTEMS HAD DISPLACED MONARCH AS THE LOW OFFEROR, SHE WAS JUSTIFIED IN WITHDRAWING THE COC REQUEST PERMANENTLY. SEE F.J. WASHINGTON FUEL, INC., B-202697, SUPRA. FINALLY, WE FIND NO EVIDENCE THAT THE AIR FORCE CONDUCTED NEGOTIATIONS THAT DID NOT INCLUDE MONARCH. AS FAR AS THE RECORD INDICATES, THE AIR FORCE ORIGINALLY INTENDED TO MAKE AN AWARD TO MONARCH ON THE BASIS OF INITIAL PROPOSALS. THE ONLY NEGOTIATIONS THAT THE AGENCY EVENTUALLY HELD WERE THOSE FOR WHICH MONARCH RECEIVED WRITTEN NOTIFICATION AND IN WHICH IT WAS GIVEN AN OPPORTUNITY TO PARTICIPATE. THEREFORE, EXCEPT FOR MONARCH'S SUSPICION OF WRONGDOING, THERE IS NOTHING TO INDICATE THAT THE PROTESTER WAS TREATED UNEQUALLY OR UNFAIRLY DURING THE NEGOTIATION PROCESS. AND, AS NOTED EARLIER, MERE SUSPICION OF WRONGDOING, WITHOUT ANYTHING MORE, FAILS TO SATISFY THE PROTESTER'S BURDEN OF PROOF ON AN ALLEGATION OF IMPROPER CONDUCT ON THE PART OF GOVERNMENT OFFICIALS. DAVEY COMPRESSOR CO., B-215028, SUPRA.

THE PROTEST IS DENIED.

SINCE WE HAVE FOUND MONARH'S PROTEST TO BE WITHOUT LEGAL MERIT, WE ALSO DENY ITS CLAIM FOR PROPOSAL PREPARATION COSTS. TOM SHAW, INC., B-214191, AUG. 27, 1984, 84-2 CPD PARA. 227.