B-225669.2, MAR 23, 1987, 87-1 CPD 331

B-225669.2, MAR 23, 1987, 87-1 CPD 331

PROCUREMENT - BID PROTESTS - GAO PROCEDURES - GAO DECISIONS - RECONSIDERATION DIGEST: 1. PRIOR DECISION IS AFFIRMED ON RECONSIDERATION WHERE PROTESTER HAS NOT SHOWN THAT IT CONTAINS ANY ERROR OF FACT OR LAW. PROCUREMENT - BID PROTESTS - CONFERENCES - JUSTIFICATION 2. REQUEST FOR A CONFERENCE IN CONNECTION WITH A REQUEST FOR RECONSIDERATION IS DENIED SINCE THE MATTER CAN BE PROMPTLY RESOLVED WITHOUT A CONFERENCE.

GENTEX CORPORATION-- REQUEST FOR RECONSIDERATION:

GENTEX CORPORATION REQUESTS THAT WE RECONSIDER OUR DECISION IN GENTEX CORPORATION, B-225669, FEB. 27, 1987, 87-1 CPD PARA. ***, DISMISSING ITS PROTEST OF THE AWARD OF A CONTRACT TO DEVIL'S LAKE SIOUX MANUFACTURING CORPORATION (DEVIL'S LAKE) UNDER REQUEST FOR PROPOSALS (RFP) NO. DLA100-86 -R-0658, ISSUED BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC), PHILADELPHIA, PENNSYLVANIA, FOR HELMETS.

WE AFFIRM OUR PRIOR DECISION.

GENTEX HAD PROTESTED THAT DEVIL'S LAKE RECEIVED AN UNFAIR COMPETITIVE ADVANTAGE BY BEING AWARDED AN OPTION FOR THE SAME ITEM AT MORE THAN A FAIR MARKET PRICE UNDER THE TERMS OF A CONTRACT AWARDED UNDER THE SMALL BUSINESS ADMINISTRATION'S SECTION 8(A) PROGRAM. WE HELD THAT GENTEX WAS NOT AN INTERESTED PARTY ELIGIBLE TO PURSUE A PROTEST AGAINST AWARD TO THE LOW OFFEROR SINCE AS THE SIXTH LOW OFFEROR IN A PROCUREMENT WHERE PRICE WAS THE DETERMINING FACTOR, GENTEX'S DIRECT ECONOMIC INTEREST WOULD NOT BE AFFECTED BY THE AWARD OF THE CONTRACT. WE NOTED THAT THE RFP WAS ISSUED AS A PARTIAL SET-ASIDE FOR SMALL BUSINESS FIRMS AND ENVISIONED A TOTAL OF THREE AWARDS TO THREE SEPARATE ENTITIES: TWO AWARDS FOR A QUANTITY OF 100,000 UNITS EACH ON THE UNRESTRICTED PORTION AND ONE AWARD OF 100,000 ON THE PARTIAL SET ASIDE. AWARDS FOR A QUANTITY OF 100,000 EACH HAD BEEN MADE TO DEVIL'S LAKE AND STEMACO PRODUCTS FOR THE UNRESTRICTED PORTION. THE SET-ASIDE PORTION OF 100,000 UNITS, FOR WHICH GENTEX AS A LARGE BUSINESS WOULD NOT QUALIFY, HAD NOT YET BEEN AWARDED. DPSC REPORTED THAT GENTEX WAS THE SIXTH-LOW EVALUATED OFFEROR ON THE UNRESTRICTED PORTION AND, EVEN IF THE PROTEST WERE SUSTAINED, THREE OTHER ACCEPTABLE OFFERORS STOOD BETWEEN THE PROTESTER AND THE AWARDEE. SINCE GENTEX WAS NOT IN LINE FOR AWARD, IT WAS NOT AN INTERESTED PARTY AND ITS PROTEST WAS DISMISSED.

IN ITS REQUEST FOR RECONSIDERATION, GENTEX ASSERTS THAT A PRICE CONTAINED IN ITS ALTERNATE OFFER FOR A QUANTITY OF 200,000 HELMETS ON AN ACCELERATED DELIVERY SCHEDULE WOULD MAKE IT THE THIRD LOW OFFEROR UNDER THE SOLICITATION. GENTEX NOTES THAT ALTHOUGH THE GOVERNMENT RESERVED THE RIGHT TO MAKE A MINIMUM OF THREE AWARDS, IT WAS NOT REQUIRED TO. THUS, GENTEX ARGUES, IT IS AN INTERESTED PARTY DESPITE THE FACT THAT ONE OF ITS ALTERNATE OFFERS MAY NOT HAVE PLACED IT IN A THIRD LOW POSITION OF A PRICE BASIS PER THE METHOD OF EVALUATION STATED IN THE RFP.

WE DO NOT AGREE. GENTEX DID NOT PROTEST THE PROPRIETY OF DPSC'S DECISION TO MAKE MULTIPLE AWARDS ON THE BASIS OUTLINED IN THE RFP. AS EVALUATED ON THE AWARD BASIS ACTUALLY USED BY DPSC, WHICH WAS CONSISTENT WITH THAT OUTLINED IN THE RFP, GENTEX IS THE SIXTH LOW OFFEROR ON THE UNRESTRICTED PORTION, AND NOT IN LINE FOR AWARD IF DEVIL'S LAKE WERE ELIMINATED FROM THE COMPETITION. THUS, GENTEX DOES NOT HAVE THE REQUISITE DIRECT ECONOMIC INTEREST TO QUALIFY AS AN INTERESTED PARTY. SEE WING MANUFACTURING; SIMULATORS UNLIMITED, INC.-- REQUEST FOR RECONSIDERATION, B-213046.3 ET AL., AUG. 17, 1984, 84-2 CPD PARA. 187.

GENTEX HAS REQUESTED A CONFERENCE. WE WILL NOT CONDUCT A CONFERENCE ON A RECONSIDERATION REQUEST, HOWEVER, UNLESS THE MATTER CANNOT OTHERWISE BE RESOLVED EXPEDITIOUSLY. RESTORATIONS UNLIMITED, INC., WADE ASSOCIATES; FURNITURE CRAFTSMAN, INC.-- RECONSIDERATION, B-221862.2, JULY 11, 1986, 86-2 CPD PARA. 57. WE DO NOT BELIEVE A CONFERENCE IS WARRANTED IN THIS CASE.

SINCE GENTEX HAS NOT SHOWN THAT OUR PRIOR DECISION WAS BASED ON ANY ERROR OF FACT OR LAW, IT IS AFFIRMED.