B-233286, Jan 10, 1989, 89-1 CPD 26

B-233286: Jan 10, 1989

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PROCUREMENT - Bid Protests - GAO procedures - Interested parties - Direct interest standards DIGEST: Protest that the contract was improperly awarded to a nonresponsive bidder is dismissed because the protester is not an interested party with standing to protest under General Accounting Office Bid Protest Regulations where the protester would not be in line for contract award even if its protest were to be sustained. The equipment will be installed in the Federal Law Enforcement Training Center at Glynco. Gel contends that the first and second lowest bidders are nonresponsive because they deviated from IFB requirements by listing alternatives and by offering nonconforming products. Four bids were received in response to the IFB.

B-233286, Jan 10, 1989, 89-1 CPD 26

PROCUREMENT - Bid Protests - GAO procedures - Interested parties - Direct interest standards DIGEST: Protest that the contract was improperly awarded to a nonresponsive bidder is dismissed because the protester is not an interested party with standing to protest under General Accounting Office Bid Protest Regulations where the protester would not be in line for contract award even if its protest were to be sustained.

Gel Systems, Inc.:

Gel Systems, Inc., the highest of four bidders, protests the award of a contract to Educational Media, Inc. (EMI), under invitation for bids (IFB) No. CO-46-88, issued by the Immigration and Naturalization Service (INS) for 6 language laboratory systems and 90 student booths. The IFB also required the modification of 90 existing student booths to be compatible with the 6 language laboratory systems being purchased. The equipment will be installed in the Federal Law Enforcement Training Center at Glynco, Georgia, for the use of the Border Patrol Academy. Gel contends that the first and second lowest bidders are nonresponsive because they deviated from IFB requirements by listing alternatives and by offering nonconforming products.

We dismiss the protest.

Four bids were received in response to the IFB, ranging from a low bid of $284,867, to the protester's high bid of $582,750. Stevens Learning Systems, Inc., the lowest bidder, was rejected as nonresponsive because, among other defects, it offered an instructor's console that was 58 inches in width rather than 96 inches as required by the specifications. After determining that EMI, the second lowest bidder, was both responsive and responsible, the contracting officer awarded the contract to EMI. The third and fourth lowest bidders were Crumley and Associates and the protester. /1/

Gel contends that the two lowest bidders, Stevens and EMI, are nonresponsive because they listed alternatives in their bids. Additionally, Gel contends that if Stevens' bid was rejected for offering a 58-inch console, EMI's bid should be rejected as well for offering a 60- inch console rather than the required 96-inch console. While Gel, in its comments on the agency's report on the protest, generally asserts that Crumley, the third lowest bidder, is also nonresponsive, it specifically declined to explain its contention and asked that the protest be sustained based solely on a finding that the bids of Stevens and EMI were nonresponsive.

Under the Competition in Contracting Act of 1984, 31 U.S.C. Sec. 3551 (Supp. IV 1986), and our Bid Protest Regulations, 4 C.F.R. Secs. 21.0(a) and 21.1(a) (1988), a protester must qualify as an "interested party" in order to have its protest considered by our Office. An interested party for the purpose of filing a protest means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract. 4 C.F.R. Sec. 21.0(a). A party will not be deemed interested where it would not be in line for award even if its protest were sustained. Brunswick Corp. and Brownell & Co., Inc., B-225784.2, B-225784.3, July 22, 1987, 87-2 CPD Para. 74.

Here, we find that the protester is not an interested party with standing to protest the contract award to EMI since even if its protest were sustained, Crumley, not Gel, would be in line for award. Although Gel asserts that Crumley's bid is also nonresponsive, it has provided no evidence in support of its contention and the record indicates that the INS found Crumley's bid to be responsive. As a result, Gel is not an interested party to challenge the award to EMI.

The protest is dismissed.

/1/ Crumley certified in its bid that its offered product was foreign made. Under Federal Acquisition Regulation 25.105(a), a 12 percent cost differential is applied to bids from domestic small business concerns offering a foreign product, in order to determine the reasonableness of the firm's price. Even with the application of the differential, Crumley's bid remained lower than the protester's.