B-230212.2, Jun 27, 1988, Office of General Counsel

B-230212.2: Jun 27, 1988

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The requirement that agencies routinely refer uncollectible debts to GAO was deleted (4 C.F.R. Our data base has been decreasing as the older cases are disposed of. N66001-86-R-0270 as are contained in the present complaint. We are enclosing a copy of our decision. At page 9 of the complaint PRC states that it "will show that GAO erred in denying its requested fact finding conferences and that if such fact finding conferences had been held. Facts and testimony would have been developed which would have compelled a ruling by the GAO in PRC's favor.". We are enclosing copies of PRC's two requests for a fact finding conference. PRC's first request sought a conference to establish the propriety of the cost realism analysis conducted by the Navy and to explore the reasonableness of the Navy's determination that its proposal was technically equal to the proposal of its sole competitor.

B-230212.2, Jun 27, 1988, Office of General Counsel

PROCUREMENT - Bid Protests - Conferences - Justification DIGEST: With respect to a complaint filed in the United States Claims Court raising an objection to the denial of requests for fact finding conferences in PRC Kentron, Inc., B-230212, June 7, 1988, 88-1 CPD Para. ***, the General Accounting Office advised the Department of Justice that neither request fell within the purview of 4 C.F.R. Sec. 21.5(b) (1987). Planning Research Corporation v. United States, Claims Court No. 335 88C.

The Honorable John R. Bolton

Assistant Attorney General

Civil Division

Department of Justice:

We refer to your letter of June 10, 1988, requesting a report on the above-entitled case. Our records indicate no claims or other demands which might furnish the basis for a counterclaim or set-off in this case. You should be aware that General Accounting Office's (GAOs) data base of debt cases has become quite limited. When GAO and the Justice Department amended the Federal Claims Collection Standards in 1884, the requirement that agencies routinely refer uncollectible debts to GAO was deleted (4 C.F.R. Sec. 105.1). Since that time, our data base has been decreasing as the older cases are disposed of. Therefore, to obtain a more reliable indication of outstanding indebtedness, you may wish to selectively consult other sources. Depending on the identity of the plaintiffs, these might include the Army Holdup List (government contractors), Department of Education (student loans), Veterans Administration, or Small Business Administration. The plaintiff identifies itself as the successor in interest to PRC Kentron, Inc. (PRC), a firm which filed a bid protest with this Office on February 11, 1988, containing essentially the same allegations with regard to the Navy's conduct of a procurement under request for proposals (RFP) No. N66001-86-R-0270 as are contained in the present complaint. We are enclosing a copy of our decision, PRC Kentron, Inc., B-230212, June 7, 1988, 88-1 CPD Para. denying the protest.

At page 9 of the complaint PRC states that it "will show that GAO erred in denying its requested fact finding conferences and that if such fact finding conferences had been held, facts and testimony would have been developed which would have compelled a ruling by the GAO in PRC's favor." We are enclosing copies of PRC's two requests for a fact finding conference, dated March 24 and April 13, 1988, together with our responses denying each.

Our Bid Protest Regulations, 4 C.F.R. Sec. 21.5(b) (1988), provide the following with respect to fact finding conferences:

"A fact finding conference may, at the sole discretion of the General Accounting Office, be held at the request of any party or on the initiative of the General Accounting Office. The fact finding conference may be held in order to resolve a specific factual dispute essential to the resolution of the protest which cannot be otherwise resolved on the written record."

PRC's first request sought a conference to establish the propriety of the cost realism analysis conducted by the Navy and to explore the reasonableness of the Navy's determination that its proposal was technically equal to the proposal of its sole competitor. "Propriety" and "reasonableness" are legal conclusions drawn from the record and not specific factual disputes as contemplated by our Regulations.

PRC's second request sought a fact finding conference primarily to "test" the validity of the contracting officer's assertions that the competing proposals were technically equal against the testimony of the agency's technical evaluators. As our decision indicates, the contracting officer need not be in agreement with the evaluators; accordingly, resolution of the issue presented for a fact finding conference was not "essential to the resolution of the protest" as contemplated by our regulations. Likewise, the protester's secondary concern about the Navy's allegations of its poor past contract performance were not relevant to the resolution of the protest and, therefore, did not warrant the convening of a fact finding conference.

If you need further information or documents from our Office, please contact Robert Arsenoff of our Office on (202) 275-974O.