B-219762, AUG 7, 1985, 64 COMP.GEN. 755

B-219762, AUG 7, 1985, 64 COMP.GEN. 755

GENERAL ACCOUNTING OFFICE - JURISDICTION - CONTRACTS - SCOPE OF REVIEW PROTEST AGAINST DENIAL OF APPLICATION FOR A MASTER AGREEMENT FOR REPAIR AND ALTERATION OF VESSELS IS NOT FOR CONSIDERATION UNDER GAO'S BID PROTEST FUNCTION SINCE PROTESTER'S OBJECTIONS DO NOT PERTAIN TO A PARTICULAR SOLICITATION OR TO THE PROPOSED AWARD OR AWARD OF A PARTICULAR CONTRACT AND THUS ARE NOT WITHIN THE SCOPE OF THE BID PROTEST PROVISIONS OF THE COMPETITION IN CONTRACTING ACT OF 1984, PUB.L. NO. 98-369, 98 STAT. 1175, 1199-1203 (TO BE CODIFIED AT 31 U.S.C. 3551-3556).

MATTER OF: A. MOE & CO., INC., AUGUST 7, 1985:

A. MOE & CO., INC. (MOE), PROTESTS THE DENIAL BY THE DEPARTMENT OF THE NAVY, NAVAL SEA SYSTEMS COMMAND (NAVSEA), OF ITS APPLICATION FOR A MASTER AGREEMENT FOR REPAIR AND ALTERATION OF VESSELS (MASTER AGREEMENT). MOE DISPUTES NAVSEA'S CONCLUSION THAT THE FIRM DOES NOT POSSESS THE ORGANIZATION AND FACILITIES NECESSARY TO MEET THE ELIGIBILITY REQUIREMENTS FOR EITHER A MASTER SHIP REPAIR AGREEMENT OR AN AGREEMENT FOR BOAT REPAIR, TWO TYPES OF MASTER AGREEMENTS. WE DISMISS THE PROTEST.

A MASTER AGREEMENT, ENTERED INTO WITH A PROSPECTIVE CONTRACTOR POSSESSING THE ORGANIZATION AND FACILITIES NECESSARY TO PERFORM SHIP REPAIR WORK SATISFACTORILY, ESTABLISHES IN ADVANCE THE TERMS UPON WHICH A CONTRACTOR WILL MAKE REPAIRS, ALTERATIONS AND ADDITIONS TO VESSELS UNDER JOB ORDERS. WHEN A REQUIREMENT ARISES FOR THE TYPE OF WORK COVERED BY THE MASTER AGREEMENT, OFFERS ARE TO BE SOLICITED FROM PROSPECTIVE CONTRACTORS WHICH HAVE PREVIOUSLY EXECUTED A MASTER AGREEMENT OR WHICH POSSESS THE NECESSARY QUALIFICATIONS AND AGREE TO EXECUTE A MASTER AGREEMENT BEFORE AWARD OF A JOB ORDER. DEPARTMENT OF DEFENSE SUPPLEMENT TO THE FEDERAL ACQUISITION REGULATION, SUBPART 17.71, 50 FED.REG. 12,276 (1985) (TO BE CODIFIED AT 48 C.F.R. SECS. 217.7100 TO 217.7104).

THE BID PROTEST PROVISIONS OF THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), PUB.L. NO. 98-369, 98 STAT. 1175, 1199-1203 (TO BE CODIFIED AT 31 U.S.C. SECS. 3551-3556), PROVIDE THAT THE COMPTROLLER GENERAL SHALL DECIDE A PROTEST CONCERNING AN ALLEGED VIOLATION OF A PROCUREMENT STATUTE OR REGULATION OF THE PROTEST IS FILED IN ACCORDANCE WITH THE BID PROTEST PROVISIONS OF CICA. 31 U.S.C. SEC. 3552. THESE PROVISIONS DEFINE A "PROTEST" AS:

A WRITTEN OBJECTION *** TO A SOLICITATION BY AN EXECUTIVE AGENCY FOR BIDS OR PROPOSALS FOR A PROPOSED CONTRACT FOR THE PROCUREMENT OF PROPERTY OR SERVICES OR A WRITTEN OBJECTION BY AN INTERESTED PARTY TO A PROPOSED AWARD OR THE AWARD OF SUCH A CONTRACT.

SINCE MOE'S OBJECTIONS TO THE DENIAL OF ITS APPLICATION FOR A MASTER AGREEMENT DO NOT PERTAIN TO A PARTICULAR SOLICITATION OR TO THE PROPOSED AWARD OR AWARD OF A PARTICULAR CONTRACT, THEY DO NOT CONSTITUTE A PROTEST WITHIN THE MEANING OF CICA AND WE WILL NOT CONSIDER THEM UNDER OUR BID PROTEST FUNCTION. CF. CAROLINA DRYDOCKS, INCORPORATED, B-218186.2, JUNE 3, 1985, 85-1 CPD PARA. 629 (ALLEGATION THAT AWARD OF CONTRACT FOR VESSEL REPAIRS WAS IMPROPER BECAUSE AGENCY IMPROPERLY DENIED PROTESTER'S APPLICATION FOR A MASTER AGREEMENT, A PREREQUISITE FOR AWARD UNDER THE SOLICITATION).

ACCORDINGLY, THE PROTEST IS DISMISSED.

/1/ SECTION 303 D(C)(4) OF THE SMALL BUSINESS AND FEDERAL PROCUREMENT COMPETITION ENCHANCEMENT ACT OF 1984, 98 PUB.L. 98-577, OCT. 30, 1984, 98 STAT. 3066, WHILE NOT EFFECTIVE AT THE TIME THE SOLICITATION WAS ISSUED, PERMITS AN OFFEROR TO DEMONSTRATE THAT ITS PRODUCT MEETS OR CAN MEET THE STANDARDS ESTABLISHED FOR QUALIFICATION BEFORE THE DATE OF AWARD.