Matter of: Control Technologies, Inc. File: B-251335 Date: January 5, 1993

Matter of: Control Technologies, Inc. File: B-251335 Date: January 5, 1993

PROCUREMENT Bid Protests GAO procedures Interested parties Subcontractors PROCUREMENT Bid Protests GAO procedures Interested parties Suppliers Potential subcontractor or supplier is not an interested party eligible to protest solicitation specifications.

Attorneys

DECISION Control Technologies, Inc. (CTI) protests the specifications of invitation for bids (IFB) No. N62467-89-B-0025, issued by the Department of the Navy, Naval Facilities Engineering Command, for the construction of an Academic Development Center at the Kessler Air Force Base, Biloxi, Missippi.

We dismiss the protest.

The IFB requires the construction of a two story, steelframe building ready for use as an Academic Development Center. The IFB divides this total construction effort into 13 separate work requirements: sitework; concrete work; metal work; wood work; thermal and moisture insulation; doors and windows installation; finishes; fixtures or specialties installation; equipment; furnishings; elevator installation; mechanical systems; and electrical systems.

The specification protested by CTI falls under the statement of work for mechanical systems and calls for the contractor to provide a direct digital control system to monitor building temperature. Under this specification, the system installed at the Academic Development Center must be compatible with the existing base-wide energy monitoring system, which is controlled by a Control Systems International (CSI) System 7000 local area network central computer.

CTI protests that the specification was unduly restrictive because it improperly bundled the central computer equipment requirements, which only CSI can provide, with the rest of the contract requirements (including installation of the central computer), which any contractor could provide.

The Navy asserts that CTI is not an interested party eligible to file this protest since CTI is not a potential bidder, but a mechanical and electrical subcontractor. The agency states that CTI orally admitted during the course of its agency-level protest of this specification that it was a supplier and installer of digital monitoring systems, not a construction contractor. This is logical since the specifications for the digital control system will only affect a supplier of these services, not the prime construction contractor, and the estimated value of the protested specification work is approximately $41,000, while the estimated value of the entire contract is $3,275,000. In support of its assertion that CTI is not an interested party, the agency has supplied a Dun & Bradstreet report, covering the period from November to December 1992, in which CTI listed itself as a special trade contractor primarily engaged in electrical work. The agency also notes that CTI failed to submit a bid on the IFB.

In responding to the agency's assertions, the protester does not argue that it is a prime construction contractor, but that it is "aware of no law or regulation that limits protests to `prime contract bidders.'" In fact, the protester describes itself as a "control contractor," and a "mechanical and electrical contractor," and characterizes the digital control system work as a "third tier subcontract." Consequently, we think it is clear that CTI was not a prospective bidder on this IFB.

The Competition in Contracting Act of 1984, 31 U.S.C. Secs. 3551-3556 (1988) authorizes our Office to decide any bid protest filed by an interested party, which CICA as an "actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by the failure to award the contract." Our Bid Protest Regulations reflect this statutory definition. 4 C.F.R. Sec. 21.0(a) (1992). Subcontractors, who are not actual or prospective bidders or offerors on a protested solicitation, do not satisfy this interested party requirement. PolyCon Corp., B-218304; B-218305, May 17, 1985, 85-1 CPD Para. 567; ADB-ALNACO, Inc., B-218541, June 3, 1985, 85-1 CPD Para. 633.

The protest is dismissed.