B-220530, OCT 11, 1985, 85-2 CPD 409

B-220530: Oct 11, 1985

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QUESTIONS - PROTESTER NOT IN LINE FOR AWARD DIGEST: PROTEST THAT PROPOSAL SHOULD NOT HAVE BEEN REJECTED IS DISMISSED AS ACADEMIC WHERE THE PROTESTER'S OFFERED PRICE IS SUBSTANTIALLY HIGHER THAN THE PROPOSED AWARDEE'S PRICE AND THERE IS NO EVIDENCE OR ALLEGATION THAT THE AWARDEE'S PROPOSAL WAS UNACCEPTABLE. THE PROTESTER THEREFORE WOULD NOT BE IN LINE FOR THE AWARD EVEN IF THE PROTEST WERE RESOLVED IN ITS FAVOR. THE PROCUREMENT WAS A TOTAL SMALL BUSINESS SET-ASIDE. PETERSON'S PROPOSAL WAS REJECTED FOR FAILING TO CONFORM TO ALL ESSENTIAL RFP TERMS BECAUSE PETERSON INDICATED IN THE "SMALL BUSINESS CONCERN REPRESENTATION" THAT THE OFFERED SYSTEM WOULD NOT BE PRODUCED OR MANUFACTURED BY A SMALL BUSINESS CONCERN.

B-220530, OCT 11, 1985, 85-2 CPD 409

CONTRACTS - PROTESTS - MOOT, ACADEMIC, ETC. QUESTIONS - PROTESTER NOT IN LINE FOR AWARD DIGEST: PROTEST THAT PROPOSAL SHOULD NOT HAVE BEEN REJECTED IS DISMISSED AS ACADEMIC WHERE THE PROTESTER'S OFFERED PRICE IS SUBSTANTIALLY HIGHER THAN THE PROPOSED AWARDEE'S PRICE AND THERE IS NO EVIDENCE OR ALLEGATION THAT THE AWARDEE'S PROPOSAL WAS UNACCEPTABLE. THE PROTESTER THEREFORE WOULD NOT BE IN LINE FOR THE AWARD EVEN IF THE PROTEST WERE RESOLVED IN ITS FAVOR.

PETERSON ASSOCIATES:

PETERSON ASSOCIATES (PETERSON) PROTESTS THE REJECTION OF ITS PROPOSAL AND THE PROPOSED AWARD OF A CONTRACT TO AERONCA ELECTRONICS, INC. (AERONCA), UNDER REQUEST FOR PROPOSALS (RFP) NO. DAAH03-85-R-F116, ISSUED BY THE DEPARTMENT OF THE ARMY FOR A COMTAL COMPUTER SYSTEM OR EQUAL. WE DISMISS THE PROTEST AS ACADEMIC.

THE PROCUREMENT WAS A TOTAL SMALL BUSINESS SET-ASIDE, AND PETERSON'S PROPOSAL WAS REJECTED FOR FAILING TO CONFORM TO ALL ESSENTIAL RFP TERMS BECAUSE PETERSON INDICATED IN THE "SMALL BUSINESS CONCERN REPRESENTATION" THAT THE OFFERED SYSTEM WOULD NOT BE PRODUCED OR MANUFACTURED BY A SMALL BUSINESS CONCERN. PETERSON CLAIMS, HOWEVER, THAT IT COMPLETED THE REPRESENTATION IN THE ONLY MANNER POSSIBLE FOR A SMALL BUSINESS OFFERING THE BRAND NAME COMTAL SYSTEM SINCE, ACCORDING TO PETERSON, COMTAL IS A DIVISION OF 3M CORPORATION, NOT A SMALL BUSINESS. PETERSON ARGUES THAT IT WAS IMPROPER TO REJECT ITS PROPOSAL BASED ON A PROPER REPRESENTATION THAT THE SPECIFIED BRAND NAME EQUIPMENT IS NOT PRODUCED BY A SMALL BUSINESS.

A PROTEST ALLEGATION IS ACADEMIC AND WILL NOT BE CONSIDERED WHERE THE PROTESTER WOULD NOT BE IN LINE FOR THE AWARD EVEN IF THE PROTEST WERE RESOLVED IN THE FIRM'S FAVOR. EVANS, INC., B-216260.2, MAY 13, 1985, 85-1 CPD PARA. 535. HERE, PETERSON'S OFFERED PRICE OF $96,025 IS SUBSTANTIALLY HIGHER THAN AERONCA'S $63,365.85 PRICE. AS PETERSON HAS SUBMITTED NO EVIDENCE THAT AERONCA'S PROPOSAL WAS TECHNICALLY UNACCEPTABLE, WE HAVE NO REASON TO BELIEVE THAT AERONCA WOULD NOT HAVE RECEIVED THE AWARD EVEN HAD PETERSON'S PROPOSAL NOT BEEN REJECTED. THE PROTEST THEREFORE IS ACADEMIC.