B-222344, MAR 28, 1986, 86-1 CPD 299
Highlights
WILL NOT BE CONSIDERED WHERE COMPANY HAS NEITHER ALLEGED NOR SHOWN THAT CONTRACT RATHER THAN COOPERATIVE AGREEMENT SHOULD HAVE BEEN USED AND WHERE ALLEGED CONFLICT OF INTEREST IS NOT MATERIAL TO SELECTION OF INTENDED AWARDEE. UNLESS THERE IS SOME SHOWING THAT THE AGENCY IS USING A COOPERATIVE AGREEMENT WHERE A CONTRACT IS REQUIRED. THAT IS. THE AGENCY IS USING THE COOPERATIVE AGREEMENT AWARD PROCESS TO AVOID THE COMPETITIVE REQUIREMENTS OF PROCUREMENT LAWS. LIMIT OUR REVIEW BECAUSE THE AWARD OF COOPERATIVE AGREEMENTS IS NOT SIGNIFICANTLY CONTROLLED BY STATUTES AND REGULATIONS HAVING THE FORCE AND EFFECT OF LAW AS IN THE AWARD OF PROCUREMENT CONTRACTS. SOUTHEASTERN HAS NOT ALLEGED OR SHOWN THAT A COOPERATIVE AGREEMENT WAS USED INSTEAD OF A CONTRACT TO AVOID COMPETITIVE REQUIREMENTS OF PROCUREMENT LAWS.
B-222344, MAR 28, 1986, 86-1 CPD 299
GENERAL ACCOUNTING OFFICE - JURISDICTION - COOPERATIVE AGREEMENTS - AWARDS DIGEST: PROTEST AGAINST THE PROCEDURES BEING USED TO AWARD A COOPERATIVE AGREEMENT, NOT SIGNIFICANTLY CONTROLLED BY PROCUREMENT STATUTES AND REGULATIONS, WILL NOT BE CONSIDERED WHERE COMPANY HAS NEITHER ALLEGED NOR SHOWN THAT CONTRACT RATHER THAN COOPERATIVE AGREEMENT SHOULD HAVE BEEN USED AND WHERE ALLEGED CONFLICT OF INTEREST IS NOT MATERIAL TO SELECTION OF INTENDED AWARDEE.
SOUTHEASTERN MICHIGAN BUSINESS DEVELOPMENT CENTER:
SOUTHEASTERN MICHIGAN BUSINESS DEVELOPMENT CENTER (SOUTHEASTERN) PROTESTS AGAINST THE PROCEDURES USED IN THE PROPOSED AWARD BY THE MINORITY BUSINESS DEVELOPMENT AGENCY (MBDA), DEPARTMENT OF COMMERCE, OF A COOPERATIVE AGREEMENT FOR THE OPERATION OF THE MINORITY BUSINESS DEVELOPMENT CENTER IN DETROIT, MICHIGAN.
WE DISMISS THE PROTEST.
WE GENERALLY DO NOT REVIEW PROTESTS CONCERNING THE AWARD OF COOPERATIVE AGREEMENTS, UNLESS THERE IS SOME SHOWING THAT THE AGENCY IS USING A COOPERATIVE AGREEMENT WHERE A CONTRACT IS REQUIRED, THAT IS, THE AGENCY IS USING THE COOPERATIVE AGREEMENT AWARD PROCESS TO AVOID THE COMPETITIVE REQUIREMENTS OF PROCUREMENT LAWS, OR THAT A CONFLICT OF INTEREST EXISTS. MANAGEMENT DEVELOPMENT GROUP, 64 COMP.GEN. 669 (1985), 85-2 CPD 34. LIMIT OUR REVIEW BECAUSE THE AWARD OF COOPERATIVE AGREEMENTS IS NOT SIGNIFICANTLY CONTROLLED BY STATUTES AND REGULATIONS HAVING THE FORCE AND EFFECT OF LAW AS IN THE AWARD OF PROCUREMENT CONTRACTS, AND OUR INVOLVEMENT THEREFORE WOULD RESULT IN INTERFERENCE WITH THE ADMINISTRATION BY EXECUTIVE BRANCH AGENCIES OF THEIR FINANCIAL ASSISTANCE PROGRAMS. ID. SOUTHEASTERN HAS NOT ALLEGED OR SHOWN THAT A COOPERATIVE AGREEMENT WAS USED INSTEAD OF A CONTRACT TO AVOID COMPETITIVE REQUIREMENTS OF PROCUREMENT LAWS. ALTHOUGH SOUTHEASTERN ALLEGES THAT A CONFLICT OF INTEREST EXISTED IN REGARD TO THE CONTRACTING OFFICER AND ANOTHER FIRM, WE ARE INFORMED BY THE DEPARTMENT THAT THIS FIRM IS NOT THE PROPOSED AWARDEE. CONSEQUENTLY, SOUTHEASTERN'S ALLEGATION IS NOT MATERIAL TO THE PROPOSED SELECTION AND WILL NOT BE CONSIDERED.
SINCE THE PROTEST DOES NOT DEAL WITH AN AWARD SUBJECT TO THE PROCUREMENT STATUTES AND REGULATIONS, THERE IS NO BASIS FOR CONSIDERATION OF THE PROTEST UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1985). MANAGEMENT DEVELOPMENT GROUP, 64 COMP.GEN. AT 670.