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B-178960, SEP 14, 1973

B-178960 Sep 14, 1973
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FEDERAL GRANT FUNDS INVOLVED UNLESS A PRIME CONTRACTOR IS ACTING AS A PURCHASING AGENT OF THE GOVERNMENT. WHICH IS NOT THE CASE HERE. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 18. WE ARE INFORMED THAT THE PROCUREMENT IN QUESTION WAS NOT MADE BY A FEDERAL AGENCY. GREEN BAY MSD IS A GRANTEE RECEIVING FEDERAL FUNDS FROM EPA UNDER 33 U.S.C. 1158. THE REPORT STATES THAT YOUR CONCERN WAS NOT A BIDDER ON THE GREEN BAY MSD SOLICITATION. THAT YOU WERE A POTENTIAL SUBCONTRACTOR WHO PROVIDED QUOTATIONS TO THE BIDDERS. YOUR PROTEST IS APPARENTLY ON THE BASIS THAT THE SOLICITATION. WAS IMPROPER. THE ACCEPTANCE OF A GRANT OF FEDERAL FUNDS WHICH IS SUBJECT TO CONDITIONS WHICH MUST BE MET BY THE GRANTEE.

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B-178960, SEP 14, 1973

DENIAL OF PROTEST AGAINST CERTAIN PROCEDURES INVOLVED IN THE SOLICITATION OF SOLIDS PROCESSING FACILITIES AND MISCELLANEOUS WORK BY THE GREEN BAY, WISCONSIN METROPOLITAN SEWERAGE DISTRICT. FEDERAL GRANT FUNDS INVOLVED UNLESS A PRIME CONTRACTOR IS ACTING AS A PURCHASING AGENT OF THE GOVERNMENT, WHICH IS NOT THE CASE HERE, THE BID PROTEST PROCEDURES OF OUR OFFICE (4 CFR, PART 20) DO NOT PROVIDE FOR THE CONSIDERATION OF PROTESTS AGAINST SUBCONTRACT AWARDS MADE BY PRIME CONTRACTOR.

TO MSI INDUSTRIES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1973, WITH ENCLOSURES, WHICH PROTESTED AGAINST CERTAIN PROCEDURES INVOLVED IN THE SOLICITATION OF SOLIDS PROCESSING FACILITIES AND MISCELLANEOUS WORK BY THE GREEN BAY, WISCONSIN, METROPOLITAN SEWERAGE DISTRICT (MSD).

BY LETTER OF AUGUST 28, 1973, THE U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA) FURNISHED US A REPORT ON YOUR PROTEST. WE ARE INFORMED THAT THE PROCUREMENT IN QUESTION WAS NOT MADE BY A FEDERAL AGENCY; RATHER, GREEN BAY MSD IS A GRANTEE RECEIVING FEDERAL FUNDS FROM EPA UNDER 33 U.S.C. 1158, THE FEDERAL WATER POLLUTION CONTROL ACT. ALSO, THE REPORT STATES THAT YOUR CONCERN WAS NOT A BIDDER ON THE GREEN BAY MSD SOLICITATION, BUT THAT YOU WERE A POTENTIAL SUBCONTRACTOR WHO PROVIDED QUOTATIONS TO THE BIDDERS. YOUR PROTEST IS APPARENTLY ON THE BASIS THAT THE SOLICITATION, WHICH CONTAINED A SPECIFICATION LISTING ENVIROTECH SYSTEMS, INC., AS THE SUPPLIER FOR SLUDGE DEWATERING AND INCINERATION SYSTEMS, BUT WHICH PROVIDED FOR THE SUBMISSION OF ALTERNATE EQUIPMENT, WAS IMPROPER. THE SUCCESSFUL BIDDER, HUTTER CONSTRUCTION COMPANY, DID NOT LIST YOUR CONCERN AS AN ALTERNATE SOURCE OF THE EQUIPMENT.

THE ACCEPTANCE OF A GRANT OF FEDERAL FUNDS WHICH IS SUBJECT TO CONDITIONS WHICH MUST BE MET BY THE GRANTEE, AS IS THE CASE HERE, CREATES A VALID CONTRACT BETWEEN THE UNITED STATES AND THE GRANTEE. 50 COMP. GEN. 470, 472 (1970). GREEN BAY MSD CAN THUS BE REGARDED AS A PRIME CONTRACTOR OF THE GOVERNMENT. HOWEVER, WE HAVE HELD THAT UNLESS A PRIME CONTRACTOR IS ACTING AS A PURCHASING AGENT OF THE GOVERNMENT, WHICH IS NOT THE CASE HERE, THE BID PROTEST PROCEDURES OF OUR OFFICE (4 CFR, PART 20) DO NOT PROVIDE FOR THE CONSIDERATION OF PROTESTS AGAINST SUBCONTRACT AWARDS MADE BY PRIME CONTRACTORS. WHERE AWARD OF A SUBCONTRACT HAS BEEN MADE AND NEITHER FRAUD NOR BAD FAITH IS ALLEGED, THE POSSIBILITY OF FINDING ADEQUATE JUSTIFICATION TO SUPPORT CANCELLATION OF THE SUBCONTRACT IS SO REMOTE THAT CONSIDERATION OF SUCH PROTESTS UNDER OUR BID PROTEST PROCEDURES WOULD BE UNWARRANTED. 51 COMP. GEN. 803 (1972). IT APPEARS, THEN, THAT WHETHER YOUR PROTEST IS DIRECTED AT THE AWARD OF CONTRACT NO. 8 BY GREEN BAY MSD TO HUTTER CONSTRUCTION COMPANY OR AT THE FAILURE OF HUTTER TO LIST YOUR CONCERN AS AN ALTERNATE SOURCE ON ITS BID, IT IS NOT FOR CONSIDERATION BY OUR OFFICE.

AS A MATTER OF INFORMATION, WE ARE ENCLOSING A COPY OF EPA'S REPORT TO OUR OFFICE, WHICH CONCLUDES THAT, IN VIEW OF THE REGULATIONS APPLICABLE TO THE GRANT, YOUR PROTEST IS WITHOUT MERIT.

IN VIEW OF THE FOREGOING, WE ARE CLOSING OUR FILE IN THIS MATTER.

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