B-225687.2, B-225687.3, MAR 11, 1987, 87-1 CPD 275

B-225687.2, B-225687.3, MAR 11, 1987, 87-1 CPD 275

PROCUREMENT - CONTRACT MANAGEMENT - CONTRACT MODIFICATION - CHANGE ORDERS - GAO REVIEW DIGEST: 1. GENERAL ACCOUNTING OFFICE WILL NOT REVIEW PROTEST THAT AGENCY SHOULD ISSUE A CHANGE ORDER UNDER THE PROTESTER'S CONTRACT INSTEAD OF CONDUCTING A PROCUREMENT. PROCUREMENT - BID PROTESTS - GAO PROCEDURES - INTERESTED PARTIES - DIRECT INTEREST STANDARDS 2. POTENTIAL PRIME CONTRACTOR FOR EQUIPMENT INSTALLATION IS NOT AN INTERESTED PARTY TO PROTEST THAT INSTEAD OF REQUIRING A SPECIFIC MANUFACTURER'S EQUIPMENT THE AGENCY SHOULD PERMIT THE PRIME TO INSTALL A SECOND FIRM'S EQUIPMENT, SINCE THE COMPANY DOES NOT SUGGEST THAT THE SPECIFICATION WILL AFFECT ITS ABILITY TO COMPETE ON AN EQUAL BASIS WITH OTHER POTENTIAL PRIME CONTRACTORS.

KIRK BROS., INC.:

KIRK BROS., INC., REQUESTS THAT WE RECONSIDER OUR DISMISSAL OF ITS PROTEST CONCERNING INVITATION FOR BIDS (IFB) NO. N62472-86-B-0107, ISSUED BY THE DEPARTMENT OF THE NAVY FOR AN ADDITION TO A MICROPROCESSOR-BASED DISTRIBUTION CONTROL SYSTEM FOR A REFRIGERATION SYSTEM. KIRK IS THE INCUMBENT CONTRACTOR INSTALLING THE REFRIGERATION SYSTEM UNDER A CONTRACT WHICH CALLS FOR THE NAVY TO FURNISH THE DISTRIBUTION CONTROL SYSTEM AS GOVERNMENT FURNISHED EQUIPMENT. WE DISMISSED KIRK'S FEBRUARY 2, 1987, PROTEST AFTER THE NAVY ADVISED US ON FEBRUARY 10 THAT KIRK HAD NOT FURNISHED THE AGENCY A COPY OF THE PROTEST WITHIN 1 WORKING DAY AFTER FILING HERE, AS REQUIRED BY OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.1(D) (1986). IN REQUESTING RECONSIDERATION, KIRK HAS PROVIDED COPIES OF RETURN RECEIPTS INDICATING THAT THE NAVY HAD RECEIVED A TIMELY COPY OF THE PROTEST.

WE NEED NOT RECONSIDER THE DISMISSAL SINCE OUR REVIEW OF DOCUMENTS SUBMITTED WITH THE PROTEST SHOWS THAT THE MATTERS KIRK RAISES ARE NOT REVIEWABLE BY OUR OFFICE IN ANY EVENT.

KIRK PROTESTS THE NAVY'S DECISION NOT TO ISSUE KIRK A CHANGE ORDER UNDER ITS EXISTING CONTRACT FOR THE CONTROL SYSTEM, AND THE NAVY'S DECISION TO DESIGNATE, IN CONNECTION WITH THE SOLICITATION THE AGENCY HAS DECIDED TO ISSUE, A SPECIFIC SOURCE FROM WHICH THE PRIME CONTRACTOR MUST PURCHASE THE CONTROL SYSTEM EQUIPMENT.

THE DECISION WHETHER TO ISSUE A CHANGE ORDER IS A MATTER OF CONTRACT ADMINISTRATION; SUCH MATTERS ARE THE RESPONSIBILITY OF THE CONTRACTING AGENCY, AND ARE NOT CONSIDERED UNDER OUR BID PROTEST REGULATIONS. SEE 4 C.F.R. SEC. 21.3(F) (1).

AS TO THE PROPRIETY OF THE SPECIFICATION THE NAVY IS USING, THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C. SEC. 3551(2) (SUPP. III 1985), REQUIRES THAT A PARTY BE "INTERESTED IN ORDER TO PURSUE A BID PROTEST WITH OUR OFFICE. SEE ALSO BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.0(A). AN INTERESTED PARTY IS DEFINED IN BOTH CICA AND OUR REGULATIONS AS AN ACTUAL OR PROSPECTIVE BIDDER WHOSE DIRECT ECONOMIC INTEREST WOULD BE AFFECTED BY THE AWARD OF A CONTRACT OR BY THE FAILURE TO AWARD A CONTRACT.

KIRK'S INTEREST IN THE RESTRICTIVE NATURE OF THE SPECIFICATION IS NOT SUFFICIENT FOR THE FIRM TO BE CONSIDERED AN INTERESTED PARTY, SINCE THE RECORD INDICATES THAT KIRK WILL MERELY MARK-UP AND PASS ON TO THE GOVERNMENT WHATEVER BID IT RECEIVES FROM THE EQUIPMENT MANUFACTURER, AND BECAUSE WE HAVE NO REASON TO BELIEVE THAT ALL POTENTIAL BIDDER FOR THE INSTALLATION WORK WILL NOT COMPETE ON THE SAME BASIS. INDEED, IN ITS PROTEST KIRK SPECIFICALLY STATES THAT ITS INTEREST IN THIS ASPECT OF THE PROTEST IS AS A TAXPAYER, NOT AN AFFECTED PROSPECTIVE COMPETITOR, AN INTEREST THAT WE HAVE HELD IS NOT ADEQUATE FOR MAINTAINING A BID PROTEST. SEE TURBINE ENGINE SERVICES, B-210411.2, APR. 3, 1984, 84-1 CPD PARA. 376.

THE PROTEST IS DISMISSED.