B-181676, AUG 7, 1974

B-181676, AUG 7, 1974

REJECTION OF PROSPECTIVE SUBCONTRACTOR'S PROPOSALS BY GOVERNMENT PRIME CONTRACTOR WILL NOT BE CONSIDERED BY GAO SINCE PRIME CONTRACTOR'S PROCEDURES IN AWARDING SUBCONTRACTS ARE GENERALLY NOT SUBJECT TO REQUIREMENTS WHICH GOVERN DIRECT UNITED STATES PROCUREMENT WHERE THE PRIME CONTRACTOR IS NOT ACTING AS A PURCHASING AGENT FOR THE GOVERNMENT AND NEITHER FRAUD NOR BAD FAITH ON THE PART OF THE GOVERNMENT CONTRACTING OFFICER IN APPROVING ANY SUCONTRACT AWARD IS ALLEGED. NEITHER WILL GAO INTERPOSE JUDGMENT ON CONTRACT ADMINISTRATION AND MANAGEMENT BY PRIME CONTRACTOR AS ADMINISTRATION OF PRIME CONTRACT IS WITHIN PROVICE OF CONTRACTING AGENCY.

AIRCRAFT SYSTEMS CORPORATION:

THE BATH IRON WORKS CORPORATION (BATH) WAS AWARDED CONTRACT N00024-74 C- 0207 ON OCTOBER 30, 1973, BY THE UNITED STATES NAVY FOR WORK UNDER ITS PATROL FRIGATE PROGRAM. PURSUANT TO THIS CONTRACT, BATH ISSUED REQUEST FOR PROPOSALS NOS. PF-RFP-2447 (FEBRUARY 4, 1974), PF-RFP-24 2457 (FEBRUARY 13, 1974), AND PF-RFP-24-2507 (FEBRUARY 5, 1974), FOR A SHIP'S FUEL SERVICE PRE-FILTER, A TRANSFER FILTER/SEPARATOR, AND A SHIP'S FUEL SERVICE SYSTEM FILTER SEPARATOR, RESPECTIVELY. AIRCRAFT SYSTEMS CORPORATION SUBMITTED PROPOSALS TO BATH ON THESE THREE SOLICITATIONS; HOWEVER, ALL THREE OF AIRCRAFT SYSTEMS' PROPOSALS WERE REJECTED. AS A RESULT OF THIS ACTION, AIRCRAFT SYSTEMS HAS PROTESTED TO THIS OFFICE ON THE GROUND THAT THE REJECTIONS WERE ARBITRARY. THE PROTESTER ALSO REQUESTS THAT WE REVIEW THE PRIME CONTRACT AS ADMINISTERED BY BATH TO DETERMINE IF IRREGULARITIES OR INEFFICIENCIES EXIST WHICH MAY JUSTIFY SETTING ASIDE BATH'S CONTRACT.

THE BID PROTEST PROCEDURES OF OUR OFFICE, 4 C.F.R. 20.1 ET SEQ. (1974) DO NOT PROVIDE FOR THE ADJUDICATION OF PROTESTS BY BIDDERS AGAINST SUBCONTRACT AWARDS MADE BY PRIME CONTRACTORS WHO ARE NOT ACTING AS PURCHASING AGENTS FOR THE GOVERNMENT. IN THE PAST, THIS OFFICE HAS ON OCCASION ENTERTAINED SUCH PROTESTS BECAUSE, FOR EXAMPLE, OF OUR CONCERN WHETHER GOVERNMENTAL APPROVAL OF A SUBCONTRACT WOULD BE PREJUDICIAL TO THE INTERESTS OF THE GOVERNMENT AND/OR BECAUSE THE USUAL LINES OF DISTINCTION BETWEEN PRIME AND SUBCONTRACT TIERS WERE CONSIDERED RELATIVELY UNIMPORTANT. SEE 49 COMP GEN. 668 (1970); 47 COMP. GEN. 223 (1967). HOWEVER, IN 51 COMP. GEN. 803 (1972), WE SIGNIFICANTLY LIMITED OUR SCOPE OF REVIEW IN THIS AREA. THAT DECISION RECOGNIZED THAT WHERE THE PRIME CONTRACTOR IS NOT ACTING AS A PURCHASING AGENT FOR THE GOVERNMENT AND NEITHER FRAUD NOR BAD FAITH ON THE PART OF THE GOVERNMENT CONTRACTING OFFICER IN APPROVING ANY SUBCONTRACT AWARD IS ALLEGED, FURTHER CONSIDERATION OF SUCH PROTESTS WOULD BE UNWARRANTED. WE HAVE SUBSEQUENTLY REAFFIRMED THAT POSITION. B-177904, MAY 4, 1973; B-176675, DECEMBER 4, 1972. SINCE BATH IS A PRIME CONTRACTOR AND NOT ACTING AS A PURCHASING AGENT OF THE UNITED STATES, WE MUST DECLINE TO PASS ON THE MERITS OF AIRCRAFT SYSTEMS' PROTEST AGAINST REJECTION OF ITS THREE PROPOSALS.

IN CONNECTION WITH THE PROTESTER'S REQUEST THAT THIS OFFICE REVIEW THE PRIME CONTRACT AS ADMINISTERED BY BATH TO DISCOVER IF IRREGULARITIES OR INEFFICIENCIES EXIST, THE ADMINISTRATION OF SUCH A CONTRACT IS WITHIN THE PROVINCE OF THE CONTRACTING AGENCY AND NOT THIS OFFICE. HOWEVER, WE WILL, OF COURSE, GIVE APPROPRIATE ATTENTION IN OUR AUDIT FUNCTIONS INVOLVING THE PRIME CONTRACT TO ANY EVIDENCE INDICATING THAT THE COST TO THE GOVERNMENT WAS UNDULY INCREASED BECAUSE OF ANY IMPROPER ACTIONS BY BATH.