B-235842.2, Aug 29, 1989, 89-2 CPD ***

B-235842.2: Aug 29, 1989

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PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Request for reconsideration is denied where protester fails to rebut agency's position that protester is merely a potential supplier and is therefore not an interested party entitled to protest since it is not a prospective or actual offeror. Would not have been an actual or prospective bidder whose direct economic interest would be affected by the award or failure to award a contract. Since Protexulate's underground heat distribution system is only authorized for class C or D soil conditions. Protexulate argues that it was improperly excluded from consideration under the IFB. Protexulate's protest indicated that it was a supplier of an underground heat distribution system.

B-235842.2, Aug 29, 1989, 89-2 CPD ***

PROCUREMENT - Bid Protests - GAO procedures - GAO decisions - Reconsideration DIGEST: Request for reconsideration is denied where protester fails to rebut agency's position that protester is merely a potential supplier and is therefore not an interested party entitled to protest since it is not a prospective or actual offeror.

Protexulate, Inc.-- Request for Reconsideration:

Protexulate, Inc., requests that we reconsider our dismissal of its protest of invitation for bids (IFB) No. N62477-88-B-4483, issued by the National Naval Medical Center, Bethesda, Maryland, for the repair of the Center's steam distribution system. We dismissed Protexulate's protest because Protexulate, a supplier of underground heat distribution systems, would not have been an actual or prospective bidder whose direct economic interest would be affected by the award or failure to award a contract.

We deny the reconsideration request.

Protexulate protested the failure of the Navy to supply it with soil boring data to support the Navy's determination that class A soil conditions applied. Since Protexulate's underground heat distribution system is only authorized for class C or D soil conditions, Protexulate argues that it was improperly excluded from consideration under the IFB.

Protexulate's protest indicated that it was a supplier of an underground heat distribution system. Under the Competition in Contracting Act of 1984 (CICA), this Office only decides protests filed by an "interested party" which CICA defines as an "actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." 31 U.S.C. Sec. 3551(2) (Supp. IV 1986), 4 C.F.R. Sec. 21.0(a) (1988). A prospective subcontractor or supplier does not have the requisite interest to be considered an interested party to protest under CICA since it is not a prospective or actual bidder or offeror. Ultrox Int'l, B-233013, Nov. 29, 1988, 88-2 CPD Para. 535.

In its request for reconsideration Protexulate argues that it has an approved underground heat distribution system and it is qualified to bid on this and other similar projects. It states that it is responsible for all aspects of this type of project including engineering, installation and inspection.

The Navy responds that the solicitation requires excavating, pipe removal, installation, testing and other work. The Navy states that the solicitation also requires the contractor to perform at least 20 percent of the work on site with its own work force. The Navy contends that Protexulate's evidence of its interest only shows that its product is acceptable for use under certain conditions but it does not show that Protexulate is anything but a supplier of the product. The Navy argues that Protexulate's product brochure does not indicate that Protexulate is capable of installing or testing its system.

In its comments on the Navy's report, Protexulate states that it wishes to have its protest considered on the record but it fails to rebut the Navy's position that Protexulate is merely a supplier and is not an interested party. We find that Protexulate has failed to show it is an interested party.

The mere fact that Protexulate states it would be responsible for the work does not show that Protexulate itself is capable of performing the on -site excavation, removal and installation. Protexulate does not contend that it will actually perform the work. Since Protexulate has produced no evidence that it is a prospective bidder, we deny the request for reconsideration.