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B-213070.2, DEC 19, 1983

B-213070.2 Dec 19, 1983
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DIGEST: ORIGINAL DECISION DISMISSING A PROTEST BECAUSE IT WAS A DISPUTE BETWEEN PRIVATE PARTIES IS AFFIRMED WHERE ALLEGATION THAT WAS NOT CONSIDERED INITIALLY DOES NOT ALTER THE SUBSTANCE OF THE ORIGINAL PROTEST. DSG'S REQUEST FOR RECONSIDERATION ASSERTS THAT WE FAILED TO CONSIDER ADDITIONAL ALLEGATIONS THAT WERE CONTAINED IN A SUPPLEMENT TO THE ORIGINAL PROTEST AND THAT THE PROTEST SHOULD THEREFORE NOT BE DISMISSED. THE PURPORTED AFFILIATE IS KIME ENTERPRISES. WE THINK THE ESSENCE OF THIS PROTEST REMAINS A PRIVATE DISPUTE - BETWEEN DSG AND CERTAIN PRINCIPALS OF KIME PLUS AND KIME ENTERPRISES WHO WERE FORMER EMPLOYEES OF THE PROTESTER - NOTWITHSTANDING THE FOREGOING INFORMATION. THE ALLEGATIONS IN THE PROTEST AND THE DOCUMENTS ATTACHED TO IT CONCERN THE LEGALITY OF THE "SURREPTITIOUS KIME BID" ON ANOTHER FOOD SERVICE CONTRACT WHILE TWO OF ITS PRINCIPALS WERE IN THE EMPLOY OF THE PROTESTER AND ALLEGEDLY PRIVY TO DSG'S BUSINESS INFORMATION IN BREACH OF THEIR "FIDUCIARY OBLIGATIONS" TO DSG.

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B-213070.2, DEC 19, 1983

DIGEST: ORIGINAL DECISION DISMISSING A PROTEST BECAUSE IT WAS A DISPUTE BETWEEN PRIVATE PARTIES IS AFFIRMED WHERE ALLEGATION THAT WAS NOT CONSIDERED INITIALLY DOES NOT ALTER THE SUBSTANCE OF THE ORIGINAL PROTEST.

DSG CORPORATION - RECONSIDERATION

DSG CORPORATION REQUESTS RECONSIDERATION OF OUR DECISION, DSG CORPORATION, B-213070, SEPTEMBER 26, 1983, 83-2 CPD 378. IN THAT DECISION WE DISMISSED THE PROTEST AGAINST THE AWARD OF A FOOD SERVICE CONTRACT TO KIME PLUS BECAUSE THE ALLEGATIONS RAISED IN THE PROTEST ESSENTIALLY RELATED TO A DISPUTE BETWEEN PRIVATE PARTIES CONCERNING THEIR BUSINESS PRACTICES AND RELATIONSHIPS; WE FOUND THE DISPUTE TO BE BEYOND THE ADJUDICATORY FUNCTION OF OUR OFFICE.

DSG'S REQUEST FOR RECONSIDERATION ASSERTS THAT WE FAILED TO CONSIDER ADDITIONAL ALLEGATIONS THAT WERE CONTAINED IN A SUPPLEMENT TO THE ORIGINAL PROTEST AND THAT THE PROTEST SHOULD THEREFORE NOT BE DISMISSED. WE AFFIRM THE DECISION.

THE ALLEGATIONS THAT WE DID NOT CONSIDER CONSIST OF A CHARGE THAT KIME HAS UNDISCLOSED AFFILIATES AND THAT IT MISREPRESENTED ITS OWNERSHIP AND AFFILIATION TO THE GOVERNMENT. THE PURPORTED AFFILIATE IS KIME ENTERPRISES. AS A RESULT OF THIS ALLEGED LACK OF DISCLOSURE, DSG ASSERTS THAT KIME PLUS INCLUDED AN IMPROPER DUNN & BRADSTREET (DUNS) NUMBER IN ITS BID - PRESUMABLY THE ONE ASSIGNED TO KIME ENTERPRISES.

WE THINK THE ESSENCE OF THIS PROTEST REMAINS A PRIVATE DISPUTE - BETWEEN DSG AND CERTAIN PRINCIPALS OF KIME PLUS AND KIME ENTERPRISES WHO WERE FORMER EMPLOYEES OF THE PROTESTER - NOTWITHSTANDING THE FOREGOING INFORMATION. THE ALLEGATIONS IN THE PROTEST AND THE DOCUMENTS ATTACHED TO IT CONCERN THE LEGALITY OF THE "SURREPTITIOUS KIME BID" ON ANOTHER FOOD SERVICE CONTRACT WHILE TWO OF ITS PRINCIPALS WERE IN THE EMPLOY OF THE PROTESTER AND ALLEGEDLY PRIVY TO DSG'S BUSINESS INFORMATION IN BREACH OF THEIR "FIDUCIARY OBLIGATIONS" TO DSG.

IN THE CONTEXT OF THESE ALLEGATIONS, WE VIEW THE CHARGE THAT KIME PLUS FAILED TO DISCLOSE ITS ALLEGED AFFILIATION WITH KIME ENTERPRISES (THE SURREPTITIOUS BIDDER) AS AN ADDITIONAL ATTEMPT BY DSG TO PLACE THIS OFFICE IN THE POSITION OF HAVING TO ADJUDICATE ITS COMPLAINT ABOUT KIME'S BUSINESS RELATIONS WITH THE PROTESTER. THE USE OF THE WRONG DUNS NUMBER DOES NOT ALTER OUR CONCLUSION BECAUSE IT IS A MINOR INFORMALITY THAT CAN BE WAIVED BY THE CONTRACTING OFFICER. SEE TENNESSEE APPAREL CORPORATION, B-208415, NOVEMBER 9, 1982, 82-2 CPD 427.

THE DECISION IS AFFIRMED.

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