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B-223963.4, SEP 12, 1986, 86-2 CPD 294

B-223963.4 Sep 12, 1986
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CONTRACTS - PROTESTS - INTERESTED PARTY REQUIREMENT - DIRECT INTEREST CRITERION DIGEST: A PROTESTER WHICH IS NOT AN ACTUAL OR PROSPECTIVE OFFEROR IN THE PROCUREMENT IS NOT AN INTERESTED PARTY TO CONTEST THE RESTRICTIVENESS OF THE SPECIFICATIONS. PMS PROTESTED THAT THE SOLICITATION WAS UNNECESSARILY RESTRICTIVE OF COMPETITION BECAUSE IT SPECIFIED ONLY ONE TYPE OF SPECIAL MACHINERY FIXTURE FOR RETROFITTING ENGINES. PMS CONTENDED THAT IT WAS AN INTERESTED PARTY BECAUSE IT WAS DEPRIVED OF THE RIGHT TO SUBCONTRACT ITS SERVICES TO THE PRIME CONTRACTOR AWARDED THE CONTRACT. OUR OFFICE DOES NOT CONSIDER SUBCONTRACTOR PROTESTS EXCEPT WHERE THE SUBCONTRACT IS BY OR FOR THE GOVERNMENT. PMS COMPLAINS THAT WE SHOULD HAVE REVIEWED ITS PROTEST BECAUSE THE SOLICITATION SPECIFIED THE SUBCONTRACTOR TO BE USED.

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B-223963.4, SEP 12, 1986, 86-2 CPD 294

CONTRACTS - PROTESTS - INTERESTED PARTY REQUIREMENT - DIRECT INTEREST CRITERION DIGEST: A PROTESTER WHICH IS NOT AN ACTUAL OR PROSPECTIVE OFFEROR IN THE PROCUREMENT IS NOT AN INTERESTED PARTY TO CONTEST THE RESTRICTIVENESS OF THE SPECIFICATIONS.

PREVENTIVE MAINTENANCE SERVICES, INC.-- REQUEST FOR RECONSIDERATION:

PREVENTIVE MAINTENANCE SERVICES, INC. (PMS), REQUESTS THAT WE RECONSIDER OUR DISMISSAL OF ITS PROTEST CONCERNING SOLICITATION NO. DACA85-86-B-0015, ISSUED BY THE UNITED STATES ARMY ENGINEERING DISTRICT, ALASKA, FOR DEMOLITION, REMODELING, AND ADDITION TO AN EXISTING POWER PLANT AS WELL AS A LIQUID FUEL PIPELINE CONSTRUCTION. WE AFFIRM THE DISMISSAL.

PMS PROTESTED THAT THE SOLICITATION WAS UNNECESSARILY RESTRICTIVE OF COMPETITION BECAUSE IT SPECIFIED ONLY ONE TYPE OF SPECIAL MACHINERY FIXTURE FOR RETROFITTING ENGINES, AND REQUIRED SUPERVISION BY A SPECIFIED COMPANY'S ENGINEERS. PMS CONTENDED THAT IT WAS AN INTERESTED PARTY BECAUSE IT WAS DEPRIVED OF THE RIGHT TO SUBCONTRACT ITS SERVICES TO THE PRIME CONTRACTOR AWARDED THE CONTRACT. WE DISMISSED THE COMPLAINT BECAUSE UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F)(10) (1986), OUR OFFICE DOES NOT CONSIDER SUBCONTRACTOR PROTESTS EXCEPT WHERE THE SUBCONTRACT IS BY OR FOR THE GOVERNMENT.

IN ITS REQUEST FOR RECONSIDERATION, PMS COMPLAINS THAT WE SHOULD HAVE REVIEWED ITS PROTEST BECAUSE THE SOLICITATION SPECIFIED THE SUBCONTRACTOR TO BE USED, AND THEREFORE SUBCONTRACTOR SELECTION IS MADE BY OR FOR THE GOVERNMENT.

WHILE WE WILL CONSIDER SUBCONTRACTOR PROTESTS WHERE THE SUBCONTRACT IS "BY OR FOR" THE GOVERNMENT, WE WILL ONLY DO SO WHERE THE PROTESTER IS AN INTERESTED PARTY AS DEFINED IN THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C. SEC. 3551 (SUPP. III 1985). SEE U.S. POLYCON CORP., B-219298, SEPT. 18, 1985, 85-2 CPD PARA. 298. CICA DEFINES AN INTERESTED PARTY FOR PURPOSES OF ELIGIBILITY TO PROTEST AS AN "ACTUAL OR PROSPECTIVE BIDDER OR OFFEROR WHOSE DIRECT ECONOMIC INTEREST WOULD BE AFFECTED BY THE AWARD OF THE CONTRACT OR BY FAILURE TO AWARD THE CONTRACT." THIS STATUTORY DEFINITION OF AN INTERESTED PARTY IS REFLECTED IN OUR BID PROTEST REGULATIONS IMPLEMENTING CICA. 4 C.F.R. SEC. 21.0(A) (1986). SINCE PMS BY ITS OWN ADMISSION IS NOT AN ACTUAL OR PROSPECTIVE BIDDER OR OFFEROR ON THE PROTESTER SOLICITATION IT DOES NOT QUALIFY AS AN INTERESTED PARTY UNDER CICA AND OUR REGULATIONS. OUR DISMISSAL OF THE FIRM'S PROTEST THEREFORE IS AFFIRMED.

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