B-180262, B-180305, APR 5, 1974

B-180262,B-180305: Apr 5, 1974

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REQUEST FOR COPIES OF PREAWARD SURVEY REPORT ON SUCCESSFUL BIDDER AND COST BREAKDOWN FURNISHED BY SUCCESSFUL BIDDER TO SHOW COMPLIANCE WITH BUY AMERICAN ACT FOR USE IN COMMENTING UPON ADMINISTRATIVE REPORT ON PROTEST AGAINST AWARD TO SUCCESSFUL BIDDER IS DENIED. THE SPECIFIC DOCUMENTS REQUESTED ARE:(1) A PREAWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE (DCASO). (2) A DETAILED BREAKDOWN OF THE DOMESTIC AND FOREIGN COSTS OF THE COMPONENTS AND THE SYSTEM WHICH WAS PREPARED BY SCRUB AND SUBMITTED TO THE PROCURING ACTIVITY. IT IS STATED THAT. UNICARE IS UNABLE TO SUBMIT A REASONED ANALYSIS UPON WHICH TO DEMONSTRATE THAT THE BUY AMERICAN ACT STANDARDS HAVE BEEN VIOLATED AS CONTENDED IN THE PROTEST.

B-180262, B-180305, APR 5, 1974

REQUEST FOR COPIES OF PREAWARD SURVEY REPORT ON SUCCESSFUL BIDDER AND COST BREAKDOWN FURNISHED BY SUCCESSFUL BIDDER TO SHOW COMPLIANCE WITH BUY AMERICAN ACT FOR USE IN COMMENTING UPON ADMINISTRATIVE REPORT ON PROTEST AGAINST AWARD TO SUCCESSFUL BIDDER IS DENIED, SINCE CONTRACTING AGENCY CONSIDERS DOCUMENTS TO BE PROTECTED AGAINST RELEASE UNDER FREEDOM OF INFORMATION ACT AND SECTION 20.7 OF INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVIDES FOR WITHHOLDING WHEN PERMITTED OR REQUIRED BY LAW OR REGULATION.

TO UNICARE HEALTH SERVICES, INC.:

IN LETTER OF FEBRUARY 22, 1974, THE ATTORNEYS FOR UNICARE HEALTH SERVICES, INC. (UNICARE), REQUESTED THAT OUR OFFICE RELEASE COPIES OF CERTAIN DOCUMENTS SUBMITTED BY THE DEPARTMENT OF THE AIR FORCE IN CONJUNCTION WITH THE UNICARE PROTEST AGAINST THE AWARD OF CONTRACTS TO MR. SCRUB CAR WASH SYSTEMS (SCRUB), UNDER INVITATION FOR BIDS (IFB) F41699-74- B-0007 AND IFB F41699-73-B-0314, ISSUED AT KELLY AIR FORCE BASE, TEXAS.

THE SPECIFIC DOCUMENTS REQUESTED ARE:(1) A PREAWARD SURVEY CONDUCTED BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES OFFICE (DCASO), BALTIMORE, MARYLAND; AND (2) A DETAILED BREAKDOWN OF THE DOMESTIC AND FOREIGN COSTS OF THE COMPONENTS AND THE SYSTEM WHICH WAS PREPARED BY SCRUB AND SUBMITTED TO THE PROCURING ACTIVITY. IT IS STATED THAT, IN THE ABSENCE OF THESE DOCUMENTS, UNICARE IS UNABLE TO SUBMIT A REASONED ANALYSIS UPON WHICH TO DEMONSTRATE THAT THE BUY AMERICAN ACT STANDARDS HAVE BEEN VIOLATED AS CONTENDED IN THE PROTEST.

FURTHER, IT IS INDICATED THAT A REPRESENTATIVE OF OUR OFFICE LED AN ATTORNEY FOR UNICARE TO BELIEVE THAT IF THE SPECIFIC INFORMATION UNICARE IS SEEKING WAS CONTAINED IN THE PREAWARD SURVEY REPORT, AS DISTINCT FROM A REPORT NOT SO CHARACTERIZED, OUR OFFICE WOULD HAVE RELEASED THE REPORT. IT IS STATED THAT IT IS NOT UNDERSTOOD WHY OUR OFFICE WOULD RELEASE THE INFORMATION IN ONE CASE AND NOT THE OTHER. ANY IMPRESSION THAT THE INFORMATION WOULD BE RELEASED IF IT WAS IN THE PREAWARD SURVEY REPORT ALONE IS REGRETTABLE. ASPR 1-907 PRECLUDES THE RELEASE OF INFORMATION OBTAINED IN THE PREAWARD SURVEY TO ANYONE OTHER THAN THE COMPANY SURVEYED. SEE ALSO ASPR 1-329.3(C)(5).

SECTION 20.7 OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVIDES THAT "THE OFFICE OF GENERAL COUNSEL, GENERAL ACCOUNTING OFFICE, WILL, UPON REQUEST, MAKE AVAILABLE TO ANY INTERESTED PARTY INFORMATION BEARING ON THE SUBSTANCE OF THE PROTEST WHICH HAS BEEN SUBMITTED BY INTERESTED PARTIES OR AGENCIES, EXCEPT TO THE EXTENT THAT WITHHOLDING OF INFORMATION IS PERMITTED OR REQUIRED BY LAW OR REGULATION ***."

IT IS CONTENDED THAT NO STATUTE OR REGULATION PROHIBITS THE DISCLOSURE OF THE REQUESTED DOCUMENTS OR AUTHORIZES THE WITHHOLDING OF THEM AND, FURTHERMORE, THAT THE DOCUMENTS ARE NOT PRIVILEGED UNDER MORE GENERAL LEGAL PRINCIPLES. CONSEQUENTLY, IT IS CONCLUDED THAT SECTION 20.7 OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS DOES NOT PRECLUDE OUR OFFICE FROM RELEASING THE DOCUMENTS.

THE DOCUMENTS REQUESTED WERE OBTAINED AND CONSIDERED BY THE CONTRACTING OFFICER TO DETERMINE THE ELIGIBILITY OF THE CONTRACTOR FOR AN AWARD. THE DOCUMENTS ARE AGENCY RECORDS. THEREFORE, OUR OFFICE INQUIRED OF THE AIR FORCE WHETHER THERE WOULD BE ANY OBJECTION TO THE RELEASE OF THE DOCUMENTS. THE AIR FORCE ADVISED INFORMALLY THAT THE DOCUMENTS ARE NOT CONSIDERED TO BE APPROPRIATE FOR RELEASE UNDER THE FREEDOM OF INFORMATION ACT, 5 U.S.C. 552. COUNSEL FOR UNICARE HAS NOT INDICATED, EITHER IN ITS LETTER OF FEBRUARY 22, OR AT THE MEETING HELD WITH REPRESENTATIVES OF OUR OFFICE ON THAT DATE, THAT IT HAS REQUESTED THE RELEASE OF THE DOCUMENTS FROM THE AIR FORCE. IN THAT REGARD, ASPR 1-329, AS IMPLEMENTED BY DEPARTMENT OF DEFENSE (DOD) DIRECTIVE 5400.7, PROVIDES THE BASIS FOR OBTAINING THE RELEASE OF PROCUREMENT INFORMATION FROM THE CONTRACTING AGENCY AND THE APPEAL PROCEDURE UPON DENIAL OF REQUEST FOR RECORDS.

IN THE ABSENCE OF A DETERMINATION BY THE CONTRACTING AGENCY OR A REVERSAL BY HIGHER AUTHORITY OR A COURT AS PROVIDED IN THE ACT, ASPR AND THE DOD DIRECTIVE, WE CONCLUDE THAT OUR OFFICE RIGHTFULLY IS WITHHOLDING THE DOCUMENTS UNDER SECTION 20.7. WE UNDERSTAND THE CONTRACT HAS BEEN AWARDED AND THE CONTRACTOR IS PROCEEDING WITH PERFORMANCE. IN THE CIRCUMSTANCES, WE WILL EXTEND THE TIME OF UNICARE TO COMMENT ON THE ADMINISTRATIVE REPORT UNTIL ITS RIGHT TO THE DOCUMENTS HAS BEEN RESOLVED. IF THE REQUESTED DOCUMENTS ARE NOT FURNISHED TO UNICARE FOR COMMENT, IN THE DISCHARGE OF OUR PROTEST REVIEW FUNCTION WE WILL EXAMINE AND CONSIDER THE ENTIRE RECORD IN PASSING UPON THE PROPRIETY OF THE AWARD MADE.