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B-245618.2, Nov 1, 1991

B-245618.2 Nov 01, 1991
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DIGEST: General Accounting Office affirms its dismissal of protest against agency's failure to issue an amendment to solicitation where protester has not shown that it was prejudiced by the agency's allegedly improper action. The solicitation contained a line item which indicated that 154 drums of freon were offered for sale. Stated that bids were due by September 19. The protester states further that the agency did not issue an amendment to the solicitation notifying potential bidders of the correct quantity of drums which were being offered for sale. The agency also states that the number of drums actually available for sale at the time of bid opening was 109. Prejudice is an essential element of any viable protest.

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B-245618.2, Nov 1, 1991

DIGEST: General Accounting Office affirms its dismissal of protest against agency's failure to issue an amendment to solicitation where protester has not shown that it was prejudiced by the agency's allegedly improper action.

Attorneys

Thomas M. Ubl-- Reconsideration:

Thomas M. Ubl requests that we reconsider our decision dated September 12, 1991, summarily dismissing its protest under solicitation No. 31-1267, issued by the Defense Logistics Agency, Defense Reutilization and Marketing Region-Memphis, for the sale of surplus government property consisting of drums of freon. Ubl alleged that the agency improperly reduced the quantity of drums offered for sale without issuing an amendment to the solicitation advising potential bidders of the reduction. /1/ We dismissed the protest because it did not establish the likelihood of a violation of law or regulation by the agency.

We affirm our dismissal.

The solicitation contained a line item which indicated that 154 drums of freon were offered for sale, and stated that bids were due by September 19, 1991. The protester has advised our Office that on September 10 it learned that the quantity of drums offered for sale would be reduced from 154 to 109. The protester states further that the agency did not issue an amendment to the solicitation notifying potential bidders of the correct quantity of drums which were being offered for sale.

The agency has advised our Office that it received 18 bids for the drums and that the protester did not submit a bid. The agency also states that the number of drums actually available for sale at the time of bid opening was 109.

Prejudice is an essential element of any viable protest. Universal Technologies, Inc.-- Recon., B-241157.2, May 24, 1991, 91-1 CPD Para. 505. We do not see how, under the circumstances here, the protester was prejudiced by the agency's failure to issue a written amendment to the solicitation. While the protester asserts that the reduction of the number of drums offered for sale required it to "readjust" its bid, it is unclear how the protester's knowledge of the correct number of drums could have adversely affected its ability to compete. Indeed, the protester had more accurate information than its competitors in calculating its price for the drums.

While its position is not altogether clear from its protest submissions, the protester seems to argue that it was entitled to the benefit of the full 154-drum sale. We do not understand the basis for this view since the protester also appears to acknowledge that the agency "has the authority to release the 45 drums" and does not dispute the fact that another firm holds a contract with the agency which entitles it to purchase some of the surplus freon drums.

We again conclude that the protester has not shown how the agency's actions here might have been in violation of law or regulation. Accordingly, the dismissal is affirmed.

/1/ We consider such protest allegations under 4 C.F.R. Sec. 21.11 (1991), as the Defense Logistics Agency, by letter dated January 13, 1987, has agreed to our considering bid protests involving its surplus property sales. Mansfield Assocs., Inc., B-242270, Mar. 13, 1991, 91-1 CPD Para. 284.

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