B-186842, MAY 5, 1978

B-186842: May 5, 1978

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74 (1970) IS DISTINCT FROM LITIGATION IN COURT. PROCEDURAL FAIRNESS IS SATISFIED BY BID PROTEST PROCEDURES WHICH GIVE REASONABLE NOTICE AND OPPORTUNITY TO BE HEARD TO PROTESTER AND INTERESTED PARTIES. PROTESTER'S EXCLUSIVE REMEDY UNDER FREEDOM OF INFORMATION ACT FOR AGENCY DENIAL OF ACCESS TO DOCUMENTS IS APPEAL TO COURTS. WE HAVE BEEN ADVISED THAT THE OPTION REQUIREMENTS WERE BROKEN INTO THREE SEPARATE PROCUREMENTS AND COMPETED INDEPENDENTLY. SRL'S REQUEST WAS SUBSEQUENTLY WITHDRAWN. EXCEPT TO THE EXTENT THAT WITHHOLDING OF INFORMATION IS PERMITTED OR REQUIRED BY LAW OR REGULATION ***". SRL ARGUES THAT DATA NOT RELEASABLE TO THE PROTESTER OR ANOTHER INTERESTED PARTY FOR REBUTTAL MUST BE REJECTED AS EVIDENCE TO SUPPORT THE CASE AND THAT TO DO OTHERWISE IS TO DENY THE PROCEDURAL DUE PROCESS RIGHTS OF THE NONPROPONENT.

B-186842, MAY 5, 1978

USE BY GAO OF AGENCY RECORDS (COST PROPOSALS AND TECHNICAL EVALUATIONS) NOT PROVIDED TO PROTESTER DOES NOT CONSTITUTE DENIAL OF DUE PROCESS RENDERING PRIOR DECISION INVALID. RESOLUTION OF BID PROTESTS UNDER 31 U.S.C. SECS. 71, 74 (1970) IS DISTINCT FROM LITIGATION IN COURT. PROCEDURAL FAIRNESS IS SATISFIED BY BID PROTEST PROCEDURES WHICH GIVE REASONABLE NOTICE AND OPPORTUNITY TO BE HEARD TO PROTESTER AND INTERESTED PARTIES. PROTESTER'S EXCLUSIVE REMEDY UNDER FREEDOM OF INFORMATION ACT FOR AGENCY DENIAL OF ACCESS TO DOCUMENTS IS APPEAL TO COURTS.

SYSTEMS RESEARCH LABORATORIES, INC. - RECONSIDERATION:

COUNSEL FOR SYSTEMS RESEARCH LABORATORIES, INC. (SRL), HAS REQUESTED RECONSIDERATION OF OUR DECISION CENTRO CORPORATION; SYSTEMS RESEARCH LABORATORIES, INC., B-186842, JUNE 1, 1977, 77-1 CPD 375, IN WHICH WE CONCURRED WITH THE RECOMMENDATION OF THE AIR FORCE THAT SERIOUS DEFICIENCIES HAD OCCURRED DURING THE NEGOTIATION PROCESS WHICH CULMINATED IN AN AWARD TO SRL. IN VIEW OF THE ADVANCED STATE OF THE CONTRACT, WE RECOMMENDED THAT THE OPTION YEARS OF THE CONTRACT SHOULD BE RESOLICITED. WE HAVE BEEN ADVISED THAT THE OPTION REQUIREMENTS WERE BROKEN INTO THREE SEPARATE PROCUREMENTS AND COMPETED INDEPENDENTLY.

SRL CONTENDS THAT OUR OFFICE, IN ISSUING THE ABOVE DECISION, DEPRIVED SRL OF PROCEDURAL DUE PROCESS OF LAW. SPECIFICALLY, SRL CONTENDS THAT WE USED DOCUMENTS WHICH HAD NOT BEEN MADE AVAILABLE TO IT FOR REVIEW - NAMELY CENTRO CORPORATION'S (CENTRO) COST PROPOSAL AND TECHNICAL EVALUATION. SRL ARGUES THAT A DECISION BASED UPON DATA RECEIVED EX PARTE RENDERS THAT DECISION INVALID. IN ADDITION, SRL REQUESTED THAT THE AIR FORCE BE REQUIRED TO REVEAL ALL ITEM PRICES IN CENTRO'S PROPOSAL. SRL'S REQUEST WAS SUBSEQUENTLY WITHDRAWN.

OUR OFFICE HAS CONSISTENTLY HELD THAT WE MAY PROPERLY CONSIDER RESTRICTED DOCUMENTS SUCH AS COST PROPOSALS AND TECHNICAL EVALUATIONS NOT FURNISHED TO A PROTESTER IN DECIDING A BID PROTEST. SEE RCI MICROFILM, B-182169, APRIL 10, 1975, 75-1 CPD 220; TECHPLAN CORPORATION, B-180795, SEPTEMBER 16, 1974, 74-2 CPD 169. SECTION 20.5 OF OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.5 (1977), PROVIDES THAT:

"THE OFFICE OF GENERAL COUNSEL, GENERAL ACCOUNTING OFFICE, SHALL, UPON REQUEST, MAKE AVAILABLE TO ANY INTERESTED PARTY INFORMATION BEARING ON THE SUBSTANCE OF THE PROTEST WHICH HAS BEEN SUBMITTED BY INTERESTED PARTIES OR AGENCIES, EXCEPT TO THE EXTENT THAT WITHHOLDING OF INFORMATION IS PERMITTED OR REQUIRED BY LAW OR REGULATION ***".

THE AIR FORCE REJECTED SRL'S REQUEST TO REVIEW THE FILES CONTAINING CENTRO'S TECHNICAL EVALUATION AND PROPOSAL UNDER THE FREEDOM OF INFORMATION ACT (FOIA), 5 U.S.C. SEC. 552 (1970). IN THE ABSENCE OF A DETERMINATION BY THE CONTRACTING AGENCY OR A REVERSAL BY A HIGHER AUTHORITY, OR A COURT, AS PROVIDED FOR IN THE ACT, WE CONCLUDE THAT OUR OFFICE PROPERLY WITHHELD THE DOCUMENTS UNDER SECTION 20.5 OF OUR PROCEDURES.

SRL ARGUES THAT DATA NOT RELEASABLE TO THE PROTESTER OR ANOTHER INTERESTED PARTY FOR REBUTTAL MUST BE REJECTED AS EVIDENCE TO SUPPORT THE CASE AND THAT TO DO OTHERWISE IS TO DENY THE PROCEDURAL DUE PROCESS RIGHTS OF THE NONPROPONENT. WE DO NOT AGREE WITH SRL'S ASSESSMENT OF OUR TREATMENT OF SUCH CASES UNDER OUR BID PROTEST PROCEDURES.

THE RESOLUTION OF BID PROTESTS BY THIS OFFICE IS AN ADMINISTRATIVE PROCEDURE DISTINCT FROM THE CONDUCT OF LITIGATION IN THE COURTS. OUR BID PROTEST AUTHORITY IS BASED UPON OUR AUTHORITY TO ADJUST AND SETTLE ACCOUNTS AND TO CERTIFY BALANCES IN THE ACCOUNTS OF ACCOUNTABLE OFFICERS UNDER 31 U.S.C. SECS. 71, 74 (1970). SEE, E.G., TELE DYNAMICS, DIVISION OF AMBAC INDUSTRIES, 55 COMP.GEN.

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