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B-219370.2, SEP 17, 1985, 85-2 CPD 294

B-219370.2 Sep 17, 1985
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IS NOT AN INTERESTED PARTY WITHIN THE MEANING OF THE COMPETITION IN CONTRACTING ACT OR GAO BID PROTEST REGULATIONS. IS AFFIRMED WHERE PROTESTER FAILS TO SHOW THAT DISMISSAL WAS IN ERROR. THE RFP WAS ISSUED BY THE AEROSPACE GUIDANCE AND METROLOGY CENTER. WAS NOT AN INTERESTED PARTY ENTITLED TO MAINTAIN THE PROTEST UNDER THE COMPETITION IN CONTRACTING ACT OF 1984. THIS DEFINITION IS INCORPORATED IN SECTION 21.0(A) OF OUR BID PROTEST REGULATIONS. WE CONCLUDED THAT JULIE DOES NOT FALL WITHIN THE STATUTORY DEFINITION OF INTERESTED PARTY SINCE JULIE IS NOT AN ACTUAL OR PROSPECTIVE BIDDER UNDER THE CHALLENGED RFP. THE RFP CALLS FOR THE CONTRACTOR TO INSTALL AND TEST 400 ITEMS OF CALIBRATION EQUIPMENT AND JULIE IS A POTENTIAL SUPPLIER OF ONLY SOME OF THE EQUIPMENT ITEMS TO FIRMS ACTUALLY COMPETING UNDER THE RFP.

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B-219370.2, SEP 17, 1985, 85-2 CPD 294

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: PRIOR DECISION DISMISSING PROTEST-- BASED ON FINDING THAT PROTESTER, AS A POTENTIAL SUBCONTRACTOR-SUPPLIER, IS NOT AN INTERESTED PARTY WITHIN THE MEANING OF THE COMPETITION IN CONTRACTING ACT OR GAO BID PROTEST REGULATIONS-- IS AFFIRMED WHERE PROTESTER FAILS TO SHOW THAT DISMISSAL WAS IN ERROR.

JULIE RESEARCH LABORATORIES, INC.-- REQUEST FOR RECONSIDERATION:

JULIE RESEARCH LABORATORIES, INC. REQUESTS RECONSIDERATION OF OUR DECISION, B-219370, AUG. 16, 1985, 85-2 CPD PARA. ---, DISMISSING ITS PROTEST CONCERNING AN ALLEGEDLY RESTRICTIVE SPECIFICATION IN REQUEST FOR PROPOSAL (RFP) NO. F33659-85R-0010. THE RFP WAS ISSUED BY THE AEROSPACE GUIDANCE AND METROLOGY CENTER, NEWARK, OHIO, FOR A PORTABLE FIELD ASSISTANCE SUPPORT TEAM CALIBRATION SYSTEM. WE DISMISSED THE PROTEST BASED ON OUR FINDING THAT JULIE, AS A POTENTIAL SUBCONTRACTOR SUPPLIER, WAS NOT AN INTERESTED PARTY ENTITLED TO MAINTAIN THE PROTEST UNDER THE COMPETITION IN CONTRACTING ACT OF 1984, PUB.L. NO. 98-369, TITLE VII, 98 STAT. 1175, AND OUR IMPLEMENTING REGULATIONS, 4 C.F.R. PART 21 (1985). AFFIRM THE PRIOR DECISION.

AS EXPLAINED IN OUR INITIAL DECISION, 31 U.S.C. SEC. 3551(2), AS ADDED BY SECTION 2741(A) OF THE COMPETITION IN CONTRACTING ACT, DEFINES AN INTERESTED PARTY AS:

"... AN ACTUAL OR PROSPECTIVE BIDDER OR OFFEROR WHOSE DIRECT ECONOMIC INTEREST WOULD BE AFFECTED BY THE AWARD OF (A) CONTRACT OR BY THE FAILURE TO AWARD (A) CONTRACT."

THIS DEFINITION IS INCORPORATED IN SECTION 21.0(A) OF OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.0(A).

IN THIS CASE, WE CONCLUDED THAT JULIE DOES NOT FALL WITHIN THE STATUTORY DEFINITION OF INTERESTED PARTY SINCE JULIE IS NOT AN ACTUAL OR PROSPECTIVE BIDDER UNDER THE CHALLENGED RFP. ON THE CONTRARY, THE RFP CALLS FOR THE CONTRACTOR TO INSTALL AND TEST 400 ITEMS OF CALIBRATION EQUIPMENT AND JULIE IS A POTENTIAL SUPPLIER OF ONLY SOME OF THE EQUIPMENT ITEMS TO FIRMS ACTUALLY COMPETING UNDER THE RFP.

IN ITS REQUEST FOR RECONSIDERATION, JULIE CONTENDS THAT EXCLUDING SUBCONTRACTOR PROTESTS IS CONTRARY TO THE CONGRESSIONAL INTENT BEHIND ENACTMENT OF THE COMPETITION IN CONTRACTING ACT. ACCORDING TO JULIE, STAFF MEMBERS FOR THE LEGISLATORS WHO SPONSORED THE ACT HAVE INDICATED TO JULIE THAT THE SPONSORS INTENDED OUR OFFICE TO CONTINUE TO REVIEW SUBCONTRACTORS' PROTESTS ON THE SAME BASIS AS BEFORE ENACTMENT OF THE ACT.

AS JULIE NOTES, PRIOR TO ENACTMENT OF THE COMPETITION IN CONTRACTING ACT, WE REVIEWED PROTESTS BY SUBCONTRACTORS IN CERTAIN LIMITED CIRCUMSTANCES, SPECIFICALLY, WHERE NO OTHER IMMEDIATE PARTY HAD A GREATER INTEREST IN THE ISSUE RAISED OR WHERE THERE WAS A POSSIBILITY THAT A SUBCONTRACTOR'S INTEREST WOULD NOT BE ADEQUATELY PROTECTED IF OUR BID PROTEST FORUM WERE RESTRICTED SOLELY TO POTENTIAL AWARDEES. SEE POLYCON CORP., B-218304, ET AL., MAY 17, 1985, 64 COMP.GEN. , 85-1 CPD PARA. 567. WE RECOGNIZE THAT THE CONGRESSIONAL INTENT BEHIND ENACTMENT OF THE COMPETITION IN CONTRACTING ACT GENERALLY WAS TO ENHANCE COMPETITION BY, IN PART, CODIFYING OUR EXISTING BID PROTEST FUNCTION. WE ALSO RESPECT THE VIEWS OF THE SPONSORS OF THE ACT, PARTICULARLY IN INTERPRETING AMBIGUOUS PROVISIONS. HOWEVER, WHERE, AS HERE, THE STATUTORY LANGUAGE IS CLEAR, WE ARE BOUND TO APPLY THE PROVISION AS WRITTEN. SEE GENERALLY SUTHERLAND, STATUTORY CONSTRUCTION, SEC. 46.04. SINCE THE ACT'S DEFINITION OF INTERESTED PARTY, CITED ABOVE, PLAINLY REQUIRES THAT A PROTESTER BE AN ACTUAL OR POTENTIAL BIDDER, OUR OFFICE IS PRECLUDED BY THE TERMS OF THE ACT ITSELF FROM REVIEWING PROTESTS BY POTENTIAL SUBCONTRACTORS.

IN THIS CASE, JULIE DOES NOT CONTEND THAT WE WERE IN ERROR IN FINDING THAT IT IS NOT A PROSPECTIVE OFFEROR ON THE PRESENT PROCUREMENT. CONSEQUENTLY, OUR DECISION IS AFFIRMED.

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