B-218588.3, JUL 18, 1985, 85-2 CPD 58

B-218588.3, JUL 18, 1985, 85-2 CPD 58

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - REQUEST FOR RECONSIDERATION - ERROR OF FACT OR LAW - NOT ESTABLISHED DIGEST: REQUEST FOR RECONSIDERATION OF A PRIOR DECISION IS DISMISSED WHERE THE REQUEST DOES NOT CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS DEEMED WARRANTED, BUT MERELY EXPRESSES DISAGREEMENT WITH THE DECISION AND ASKS GAO TO CLARIFY ITS HOLDING IN THE MATTER FOR THE PROTESTER'S BENEFIT.

AME MATEX CORPORATION-- REQUEST FOR RECONSIDERATION:

AME MATEX CORPORATION REQUESTS RECONSIDERATION OF OUR DECISION IN AME MATEX CORP., B-218588.2, JUNE 20, 1985, 85-1 CPD ---. IN THAT DECISION, WE DISMISSED AME MATEX'S PROTEST CONCERNING THE APPLICABILITY OF THE BUY AMERICAN ACT TO AN OVERSEAS AIR FORCE CONSTRUCTION PROJECT BECAUSE THE FIRM WAS ONLY A POTENTIAL SUPPLIER OF MATERIALS TO FIRMS COMPETING FOR THE CONTRACT AND, THEREFORE, WAS NOT AN "INTERESTED PARTY" TO HAVE ITS PROTEST CONSIDERED WITHIN THE MEANING OF GAO BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.0(A) (1985).

ADDITIONALLY, WE POINTED OUT THAT AME MATEX, IN ANY EVENT, LACKED A VALID BASIS FOR PROTEST BECAUSE THE PROVISIONS OF THE BUY AMERICAN ACT, 41 U.S.C. SECS. 10A-D (1982), ARE ONLY APPLICABLE TO CONTRACTS FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF PUBLIC BUILDINGS OR PUBLIC WORK IN THE UNITED STATES. SEE THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 25.200 (1984). THE PROJECT IN QUESTION WAS GOVERNED BY THE BALANCE OF PAYMENTS PROGRAM, FAR, 48 C.F.R. SEC. 25.300, ET SEQ., WHICH PROVIDES THAT THE USE OF DOMESTIC CONSTRUCTION MATERIALS IS REQUIRED IN OVERSEAS CONTRACTS EXCEPT WHERE THEIR COST, INCLUDING TRANSPORTATION AND HANDLING, EXCEEDS THE COST OF FOREIGN MATERIALS BY MORE THAN 50 PERCENT. FAR, 48 C.F.R. SEC. 25.302(C). SINCE THE AIR FORCE, IN ACCORDANCE WITH THE BALANCE OF PAYMENTS PROGRAM, HAD DETERMINED THAT THE REQUIRED USE OF DOMESTIC-ORIGIN MATERIALS (WITH THE SOLE EXCEPTION OF HEAT PUMPS) WOULD INCREASE OVERALL MATERIAL COSTS BY 76 PERCENT OVER THE COST OF LOCAL MATERIALS, WE FOUND NO MERIT IN AME MATEX'S ASSERTION THAT THE AIR FORCE HAD ACTED IMPROPERLY BY NOT IMPOSING A DOMESTIC ORIGIN RESTRICTION ON THE MATERIALS.

ALTHOUGH AME MATEX'S LATEST SUBMISSION TO THIS OFFICE EXPRESSES DISAGREEMENT WITH OUR JUNE 20 DECISION AND ASKS THAT WE CLARIFY OUR HOLDING FOR THE FIRM'S BENEFIT, THE SUBMISSION DOES NOT SET FORTH ANY PROPER BASIS FOR OUR RECONSIDERATION OF THE MATTER. IN THIS REGARD, GAO BID PROTEST REGULATIONS PROVIDE THAT THIS OFFICE WILL NOT CONSIDER ANY REQUEST FOR RECONSIDERATION OF A PRIOR DECISION WHICH DOES NOT CONTAIN A DETAILED STATEMENT OF THE FACTUAL AND LEGAL GROUNDS UPON WHICH REVERSAL OR MODIFICATION IS DEEMED WARRANTED, SPECIFYING ANY ERROR OF LAW MADE OR INFORMATION NOT PREVIOUSLY CONSIDERED. 4 C.F.R. SEC. 21.12(A). AME MATEX'S SUBMISSION ALLEGES NEITHER ERRORS OF FACT NOR OF LAW EXISTING IN OUR PRIOR DECISION, BUT ESSENTIALLY CONTINUES TO ARGUE THE SAME ISSUE RAISED IN ITS ORIGINAL PROTEST AS TO THE PROPRIETY OF THE AIR FORCE'S ACTION.

TO THE EXTENT THAT AME MATEX ASKS THAT WE CLARIFY OUR REASON FOR DISMISSING THE ORIGINAL PROTEST, WE AGAIN EMPHASIZE THAT, TO BE AN "INTERESTED PARTY" TO HAVE ITS PROTEST CONSIDERED, A PROTESTING FIRM MUST BE AN ACTUAL OR PROSPECTIVE BIDDER OR OFFEROR WHOSE DIRECT ECONOMIC INTEREST WOULD BE AFFECTED BY THE AWARD OF A CONTRACT OR BY THE FAILURE TO AWARD A CONTRACT. THEREFORE, A POTENTIAL SUPPLIER OF MATERIALS SUCH AS AME MATEX SIMPLY DOES NOT COME WITHIN THE STATUTORY DEFINITION OF AN "INTERESTED PARTY." POLYCON CORP., B-218304, ET AL., 64 COMP.GEN. ---, 85-1 CPD PARA. 567. DESPITE AME MATEX'S ASSERTION THAT THE ONLY FIRMS COMPETING FOR THIS PROJECT ARE JAPANESE CONTRACTORS WHO WOULD NOT BE MOTIVATED TO PROTEST THE AIR FORCE'S DETERMINATION NOT TO REQUIRE THE USE OF DOMESTIC-ORIGIN MATERIALS, THIS PARTICULAR CIRCUMSTANCE DOES NOT BESTOW UPON THE FIRM ANY STANDING TO HAVE THE MATTER CONSIDERED FURTHER BY THIS OFFICE.