B-225223 B-225224 B-225225 B-225226 B-225227, DEC 5, 1986, 86-2 CPD 650

B-225223,B-225225,B-225227,B-225226,B-225224: Dec 5, 1986

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PROCUREMENT - CONTRACT MANAGEMENT - CONTRACT ADMINISTRATION - CONTRACT TERMS - COMPLIANCE - GAO REVIEW DIGEST: PROTEST THAT AGENCY IS REQUIRING OFFEROR TO IMPLEMENT CHANGES TO ITS PRODUCT NOT REQUIRED BY THE SPECIFICATIONS CONCERNS A MATTER OF CONTRACT ADMINISTRATION WHICH IS THE RESPONSIBILITY OF THE CONTRACTING AGENCY. IS CONCERNED THAT THIS PROBLEM MIGHT RECUR IF RTI RECEIVES CONTRACTS UNDER THE PROTESTED SOLICITATIONS. OUR BID PROTEST FUNCTION IS RESERVED FOR CONSIDERING WHETHER AN AWARD OR PROPOSED AWARD OF A CONTRACT COMPLIES WITH STATUTORY. RTI IS NOT PROTESTING THE SPECIFICATIONS CONTAINED IN THESE SOLICITATIONS. WHICH IS THE RESPONSIBILITY OF THE CONTRACTING AGENCY. TO THE EXTENT THAT RTI IS SUGGESTING THAT THE AIR FORCE HAS BEEN MOTIVATED BY BAD FAITH.

B-225223 B-225224 B-225225 B-225226 B-225227, DEC 5, 1986, 86-2 CPD 650

PROCUREMENT - CONTRACT MANAGEMENT - CONTRACT ADMINISTRATION - CONTRACT TERMS - COMPLIANCE - GAO REVIEW DIGEST: PROTEST THAT AGENCY IS REQUIRING OFFEROR TO IMPLEMENT CHANGES TO ITS PRODUCT NOT REQUIRED BY THE SPECIFICATIONS CONCERNS A MATTER OF CONTRACT ADMINISTRATION WHICH IS THE RESPONSIBILITY OF THE CONTRACTING AGENCY, NOT OUR OFFICE.

RECLAMATION TECHNOLOGY, INC.:

RECLAMATION TECHNOLOGY, INC. (RTI) PROTESTS ANY AWARD UNDER REQUEST FOR PROPOSALS (RFP) NOS. F09603-86-R-7053, F09603-86-R-0293, F09603-86 R-7096, F09603-86-R-0858 AND F09603-86-R-6189 ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR FURNACES. RTI COMPLAINS THAT IN PREVIOUS AIR FORCE CONTRACTS WITH RTI FOR THESE FURNACE THE AIR FORCE REQUIRED RTI TO MODIFY ITS FURNACES TO MEET REQUIREMENTS THAT ALLEGEDLY EXCEEDED THE REQUIREMENTS OF THE ORIGINAL SPECIFICATIONS, AND IS CONCERNED THAT THIS PROBLEM MIGHT RECUR IF RTI RECEIVES CONTRACTS UNDER THE PROTESTED SOLICITATIONS. RTI REQUESTS A FULL INVESTIGATION OF THE MATTER.

OUR BID PROTEST FUNCTION IS RESERVED FOR CONSIDERING WHETHER AN AWARD OR PROPOSED AWARD OF A CONTRACT COMPLIES WITH STATUTORY, REGULATORY AND OTHER LEGAL REQUIREMENTS. SEE BID PROTEST REGULATIONS, 4 C.F.R. SECS. 21.1 AND 21.3(F)(1) (1986); KITCO, INC., B-221386, APR. 3, 1986, 86-1 CPD PARA. 321. HERE, RTI IS NOT PROTESTING THE SPECIFICATIONS CONTAINED IN THESE SOLICITATIONS, BUT RATHER THE POSSIBLE SUBSEQUENT INTERPRETATION OF THE REQUIREMENTS BY THE AIR FORCE. ANY QUESTION, HOWEVER, THAT ARISES DURING CONTRACT PERFORMANCE AS TO WHAT THE SPECIFICATIONS MEAN AND WHETHER THE ITEMS FURNISHED BY THE FIRM MEET THE SPECIFICATIONS INVOLVE MATTERS OF CONTRACT ADMINISTRATION, WHICH IS THE RESPONSIBILITY OF THE CONTRACTING AGENCY, NOT OUR OFFICE. 4 C.F.R. SEC. 21.3(F)(1).

WE NOTE THAT RTI ASSERTS THAT THE AIR FORCE HAS BEEN APPLYING ITS SPECIFICATION INTERPRETATION TO "INTENTIONALLY AND SYSTEMATICALLY" KEEP RTI'S FURNACES FROM "COMPETING." TO THE EXTENT THAT RTI IS SUGGESTING THAT THE AIR FORCE HAS BEEN MOTIVATED BY BAD FAITH, WE POINT OUT THAT CONTRACTING OFFICIALS ARE PRESUMED TO ACT IN GOOD FAITH AND WE WILL ONLY REVIEW A PROTEST ALLEGING BAD FAITH ON THE PART OF PROCURING OFFICIALS WHERE THERE IS SOME SHOWING THAT THESE OFFICIALS MAY HAVE HAD A SPECIFIC AND MALICIOUS INTENT TO INJURE THE PROTESTER. SEE RELIANCE MACHINE WORKS, INC., DEC. 18, 1985, 85-2 CPD PARA. 685. COMPLAINTS ABOUT PRIOR PROCUREMENT PRACTICES, INEFFICIENCY, OR NEGLIGENCE DO NOT SUFFICE TO MEET THIS HIGH STANDARD. HARRIS CORP., RF COMMUNICATIONS DIV., B-220387, NOV. 14, 1986, 85-2 CPD PARA. 556. THE ONLY EVIDENCE PRESENTED BY RTI CONCERNS THE FIRM'S PAST DISAGREEMENTS WITH THE AGENCY AS TO WHETHER ITS PRODUCTS COMPLIED WITH CONTRACT REQUIREMENTS; RTI CONCERNS THE FIRM'S PAST DISAGREEMENTS WITH THE AGENCY AS TO WHETHER ITS PRODUCTS COMPLIED WITH CONTRACT REQUIREMENTS; RTI HAS PROVIDED NOTHING WHICH SUGGESTS THAT THE AIR FORCE ACTED IMPROPERLY.

WE POINT OUT THAT RTI'S REMEDY IN CONNECTION WITH THOSE PAST CONTRACTUAL ACTIONS IS TO RESOLVE THE DISAGREEMENTS UNDER THE CONTRACTS' DISPUTES CLAUSES AND THE CONTRACT DISPUTES ACT OF 1978, 41 U.S.C. SECS. 601-613 (1982), WHICH ESTABLISHES PROCEDURES FOR RESOLVING SUCH CLAIMS. THE BARTOW GROUP-ARCHITECTS, B-220300, OCT. 7, 1985, 85-2 CPD PARA. 387. RTI'S COMPLAINT ABOUT THEM IN THE CONTEXT OF THIS PROTEST OF A SUBSEQUENT PROCUREMENT SIMPLY PROVIDES NO BASIS FOR OUR REVIEW.

THE PROTESTS ARE DISMISSED.