B-213050.2, OCT 25, 1983
Highlights
DIGEST: REQUEST FOR RECONSIDERATION IS DENIED WHERE PROTESTER MAKES NO ATTEMPT TO SHOW THAT ORIGINAL DECISION CONTAINED AN ERROR OF FACT OR LAW. PRESENTS NEW BASIS FOR PROTEST - WHETHER CONTRACTOR WILL COMPLY WITH BUY AMERICAN ACT - WHICH CONCERNS A MATTER OF CONTRACT ADMINISTRATION THAT GAO DOES NOT REVIEW UNDER ITS BID PROTEST PROCEDURES. THE REQUEST IS DENIED. LE PRIX ARGUED THAT THE MATERIALS IT PROPOSED TO SUPPLY TO THE PRIME CONTRACTOR SHOULD HAVE BEEN ACCEPTABLE BECAUSE THE PRIME CONTRACT SPECIFICATIONS WERE BROADLY WRITTEN. WE DISMISSED LE PRIX'S PROTEST ON THE BASIS THAT THE ACCEPTANCE OR REJECTION OF CONSTRUCTION MATERIAL PROPOSED FOR USE IN THE PROJECT IS A MATTER OF CONTRACT ADMINISTRATION BETWEEN THE GOVERNMENT AND THE PRIME CONTRACTOR.
B-213050.2, OCT 25, 1983
DIGEST: REQUEST FOR RECONSIDERATION IS DENIED WHERE PROTESTER MAKES NO ATTEMPT TO SHOW THAT ORIGINAL DECISION CONTAINED AN ERROR OF FACT OR LAW, BUT PRESENTS NEW BASIS FOR PROTEST - WHETHER CONTRACTOR WILL COMPLY WITH BUY AMERICAN ACT - WHICH CONCERNS A MATTER OF CONTRACT ADMINISTRATION THAT GAO DOES NOT REVIEW UNDER ITS BID PROTEST PROCEDURES.
LE PRIX ELECTRICAL DISTRIBUTORS, LTD. - REQUEST FOR RECONSIDERATION:
LE PRIX ELECTRICAL DISTRIBUTORS, LTD. REQUESTS THAT WE RECONSIDER OUR DECISION LE PRIX ELECTRICAL DISTRIBUTORS, LTD., B-213050, SEPTEMBER 30, 1983, 83-2 CPD . FOR THE REASONS STATED BELOW, THE REQUEST IS DENIED.
LE PRIX'S INITIAL PROTEST STEMMED FROM THE REJECTION BY THE AIR FORCE OF LIGHTING FIXTURES LE PRIX PROPOSED TO SUPPLY AS A SUBCONTRACTOR TO PALMER ELECTRIC COMPANY, THE PRIME CONTRACTOR UNDER CONTRACT NO. F08621-83- C0027. LE PRIX ARGUED THAT THE MATERIALS IT PROPOSED TO SUPPLY TO THE PRIME CONTRACTOR SHOULD HAVE BEEN ACCEPTABLE BECAUSE THE PRIME CONTRACT SPECIFICATIONS WERE BROADLY WRITTEN. WE DISMISSED LE PRIX'S PROTEST ON THE BASIS THAT THE ACCEPTANCE OR REJECTION OF CONSTRUCTION MATERIAL PROPOSED FOR USE IN THE PROJECT IS A MATTER OF CONTRACT ADMINISTRATION BETWEEN THE GOVERNMENT AND THE PRIME CONTRACTOR, AND NOT AN ISSUE WHICH WE WOULD CONSIDER UNDER OUR BID PROTEST PROCEDURES.
IN ITS REQUEST FOR RECONSIDERATION, LE PRIX DOES NOT DISPUTE OUR CHARACTERIZATION OF THE ISSUE IN ITS PROTEST AS ONE OF CONTRACT ADMINISTRATION AND IT DOES NOT ATTEMPT TO DISTINGUISH THE DECISION OF OUR OFFICE WHICH WE CITED IN SUPPORT OF OUR DISMISSAL. INSTEAD, LE PRIX PRESENTS FOUR "NEW REASONS, IN PART" AS TO WHY IT BELIEVES WE SHOULD CONSIDER ITS PROTEST ON THE MERITS. THREE OF THESE "REASONS" ARE SIMPLY EXPRESSIONS OF LE PRIX'S BELIEF THAT IT HAS BEEN TREATED UNFAIRLY, THAT WE SHOULD "INVESTIGATE" ITS SITUATION AND THAT CONTRACT PERFORMANCE SHOULD BE SUSPENDED PENDING OUR REVIEW OF ITS PROTEST. AS ITS FOURTH REASON, LE PRIX STATES THAT AFTER ITS MATERIALS WERE REJECTED, THE PRIME CONTRACTOR ENTERED INTO A SUBCONTRACT WITH ANOTHER FIRM FOR THEIR SUPPLY, AND THE SUBCONTRACTOR IN TURN ARRANGED FOR A FOREIGN-OWNED COMPANY TO MANUFACTURE THE LIGHTING FIXTURES AND TO FURNISH THE LIGHT BULBS. LE PRIX BELIEVES THE FIXTURES AND THE BULBS TO BE SUPPLIED BY THIS SECOND-TIER SUBCONTRACTOR WILL BE OF FOREIGN ORIGIN.
WE UNDERSTAND LE PRIX TO BE ARGUING THAT IN THE PERFORMANCE OF THIS CONTRACT, THE AIR FORCE MAY ACCEPT FIXTURES AND BULBS MANUFACTURED ABROAD, THEREBY VIOLATING THE BUY AMERICAN ACT, 41 U.S.C. SECS. 10A-D (1976). HAVE REPEATEDLY HELD, HOWEVER, THAT COMPLIANCE WITH THE BUY AMERICAN ACT DURING CONTRACT PERFORMANCE IS A MATTER OF CONTRACT ADMINISTRATION FOR RESOLUTION BY THE CONTRACTING AGENCY, NOT OUR OFFICE. SEE, E.G., CENTRAL STATES ASSOCIATES, B-210549, FEBRUARY 16, 1983, 83-1 CPD 162.
SINCE LE PRIX HAS NOT ATTEMPTED TO SHOW THAT OUR INITIAL DECISION CONTAINED AN ERROR OF LAW OR FACT, AND SINCE THE REASON IT HAS MOST RECENTLY ADVANCED AS TO WHY WE SHOULD CONSIDER ITS PROTEST ON THE MERITS CONCERNS A MATTER OF CONTRACT ADMINISTRATION WHICH WE DO NOT REVIEW, ITS REQUEST FOR RECONSIDERATION IS DENIED.