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B-220181.2, B-220182.3, NOV 25, 1985, OFFICE OF GENERAL COUNSEL

B-220181.2,B-220182.3 Nov 25, 1985
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INOUYE: UNITED STATES SENATE THIS IS IN RESPONSE TO YOUR LETTER DATED OCTOBER 30. WE DISMISSED THE PROTEST BECAUSE THE PROTESTER WAS NOT AN ACTUAL OR POTENTIAL BIDDER UNDER THE CHALLENGED SOLICITATION AND THEREFORE WAS NOT ENTITLED TO MAINTAIN THE PROTEST. WHERE NO OTHER IMMEDIATE PARTY HAD A GREATER INTEREST IN THE ISSUE RAISED OR WHERE THERE WAS A POSSIBILITY THAT A SUBCONTRACTOR'S INTEREST WOULD NOT BE ADEQUATELY PROTECTED IF OUR BID PROTEST FORUM WERE RESTRICTED SOLELY TO POTENTIAL AWARDEES. PARTIES WHICH DO NOT MEET THE STATUTORY DEFINITION ARE NOT ENTITLED TO HAVE THEIR PROTESTS CONSIDERED BY OUR OFFICE. PACIFIC ALLIED IS A POTENTIAL SUPPLIER TO THE SUCCESSFUL BIDDER. IS NOT ITSELF AN ACTUAL OR POTENTIAL BIDDER UNDER THE CHALLENGED SOLICITATION.

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B-220181.2, B-220182.3, NOV 25, 1985, OFFICE OF GENERAL COUNSEL

PRECIS-UNAVAILABLE

THE HONORABLE DANIEL K. INOUYE:

UNITED STATES SENATE

THIS IS IN RESPONSE TO YOUR LETTER DATED OCTOBER 30, 1985, REGARDING A RECENT BID PROTEST DECISION BY OUR OFFICE, PACIFIC ALLIED PRODUCTS, LTD., B-220181, ET AL., OCT. 18, 1985, 85-2 CPD PARA. ---. WE DISMISSED THE PROTEST BECAUSE THE PROTESTER WAS NOT AN ACTUAL OR POTENTIAL BIDDER UNDER THE CHALLENGED SOLICITATION AND THEREFORE WAS NOT ENTITLED TO MAINTAIN THE PROTEST. THE PROTESTER NOW HAS QUESTIONED THE DISMISSAL AND SEEKS REVIEW OF ITS PROTEST ON THE MERITS. YOU ASKED FOR INFORMATION REGARDING OUR DECISION, SPECIFICALLY WITH RESPECT TO THE PROCEDURES FOR REQUESTING RECONSIDERATION BY OUR OFFICE.

AS DISCUSSED IN DETAIL IN OUR ORIGINAL DECISION, THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C.A. SEC. 3551(2) (WEST SUPP.1985), AUTHORIZES OUR OFFICE TO CONSIDER BID PROTESTS BROUGHT BY ANY INTERESTED PARTY, DEFINED AS AN "ACTUAL OR PROSPECTIVE BIDDER OR OFFEROR WHOSE DIRECT ECONOMIC INTEREST WOULD BE AFFECTED BY THE AWARD OF THE CONTRACT OR THE FAILURE TO AWARD THE CONTRACT." PRIOR TO THE ENACTMENT OF CICA, WE REVIEWED PROTESTS BY SUBCONTRACTORS, IN CERTAIN LIMITED CIRCUMSTANCES, SPECIFICALLY, WHERE NO OTHER IMMEDIATE PARTY HAD A GREATER INTEREST IN THE ISSUE RAISED OR WHERE THERE WAS A POSSIBILITY THAT A SUBCONTRACTOR'S INTEREST WOULD NOT BE ADEQUATELY PROTECTED IF OUR BID PROTEST FORUM WERE RESTRICTED SOLELY TO POTENTIAL AWARDEES. SINCE, HOWEVER, THE ENACTMENT OF CICA, PARTIES WHICH DO NOT MEET THE STATUTORY DEFINITION ARE NOT ENTITLED TO HAVE THEIR PROTESTS CONSIDERED BY OUR OFFICE.

HERE, PACIFIC ALLIED IS A POTENTIAL SUPPLIER TO THE SUCCESSFUL BIDDER, BUT IS NOT ITSELF AN ACTUAL OR POTENTIAL BIDDER UNDER THE CHALLENGED SOLICITATION. SINCE CICA'S DEFINITION OF INTERESTED PARTY CLEARLY REQUIRES THAT A PROTESTER BE AN ACTUAL OR POTENTIAL BIDDER, OUR OFFICE IS PRECLUDED BY THE TERMS OF THE ACT ITSELF FROM REVIEWING THE PROTEST BROUGHT BY PACIFIC ALLIED IN THIS CASE. SEE JULIE RESEARCH LABORATORIES, INC.-- REQUEST FOR RECONSIDERATION, B-219370.2 SEPT. 17, 1985, 85-2 CPD PARA. 294.

WITH REGARD TO A REQUEST FOR RECONSIDERATION OF OUR DECISION TO DISMISS THE PROTEST, OUR BID PROTEST REGULATIONS REQUIRE THAT SUCH A REQUEST BE FILED WITHIN 10 WORKING DAYS AFTER THE BASIS FOR RECONSIDERATION IS OR SHOULD BE KNOWN, IN THIS CASE, WHEN THE PROTESTER RECEIVED A COPY OF OUR DECISION. 4 C.F.R. SEC. 21.12(B) (1985). ANY SUCH REQUEST NOW WOULD APPEAR TO BE UNTIMELY SINCE, ALLOWING ONE WEEK FOR RECEIPT OF THE DECISION BY THE PROTESTER, MORE THAN 10 WORKING DAYS

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