B-231508, Jun 6, 1988, 88-1 CPD 533

B-231508: Jun 6, 1988

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PROCUREMENT - Special Procurement Methods/Categories - Subcontracts - Contract awards - GAO review DIGEST: The award of a second-tier subcontract will not be reviewed by the General Accounting Office where the award is not by or for the government. United is a subcontractor to Martin Marietta Corporation. This Office is authorized to decide protests involving contract solicitations and awards by federal agencies. We have interpreted this provision as authorizing us to decide subcontractor protests only where the subcontract is "by or for" the government. A subcontract is considered to be "by or for" the government in very limited circumstances. That is. Where the prime contractor is essentially acting as a middlemen or conduit between the government and the subcontractor.

B-231508, Jun 6, 1988, 88-1 CPD 533

PROCUREMENT - Special Procurement Methods/Categories - Subcontracts - Contract awards - GAO review DIGEST: The award of a second-tier subcontract will not be reviewed by the General Accounting Office where the award is not by or for the government.

Montgomery Elevator Company:

Montgomery Elevator Company protests the award of a second-tier subcontract for elevator construction by United Engineers and Constructors Inc. under solicitation No. DQ-027, Project 9006039. United is a subcontractor to Martin Marietta Corporation, the prime contractor under Air Force contract No. F04701-85-C-0019. We dismiss the protest.

Pursuant to the Competition in Contracting Act of 1984, 31 U.S.C. Sec. 3551(1) (Supp. III 1985), this Office is authorized to decide protests involving contract solicitations and awards by federal agencies. We have interpreted this provision as authorizing us to decide subcontractor protests only where the subcontract is "by or for" the government. C.F.R. Sec. 21.3(m)(10) (1988). A subcontract is considered to be "by or for" the government in very limited circumstances, that is, where the prime contractor is essentially acting as a middlemen or conduit between the government and the subcontractor. Such a relationship has been found to exist where the prime contractor operates a government facility, otherwise provides large-scale management services, serves as an agency's construction manager, or functions primarily to handle the administrative procedures of subcontracting with vendors effectively selected by the agency. American Nuclear Corp., B-228028, Nov. 23, 1987, 87-2 CPD Para. 503. Where these circumstances do not exist, the award of a subcontract by a contractor in the process of performing its contract is not considered to be "by or for" the government.

None of the circumstances delineated above are present in this case. Martin Marietta corporation, the government's prime contractor was awarded a fixed-price incentive fee contract to provide Titan IV launch vehicles and to modify the existing complex to accept them; its prime contract does not fit into any of the circumstances which suggest we would review the subcontract award even if Martin Marietta were the awarding contractor. The subcontract is even more remote, however, since it is being awarded by the Martin Marietta subcontractor that has the responsibility of modifying the complex to accept the Titan IV vehicles. The agency's role in these contracts is limited to offering technical advice.

The protest is dismissed.