B-224496.2, AUG 15, 1986, 86-2 CPD 188

B-224496.2, AUG 15, 1986, 86-2 CPD 188

CONTRACTS - PROTESTS - SUBCONTRACTOR PROTESTS - AWARD "FOR" GOVERNMENT DIGEST: DISMISSAL OF A PROTEST AGAINST THE AWARD OF A SUBCONTRACT IS AFFIRMED WHERE THE SUBCONTRACT IS NOT MADE BY OR FOR THE GOVERNMENT, WHICH ARE THE ONLY CIRCUMSTANCES IN WHICH THE GENERAL ACCOUNTING OFFICE WILL REVIEW SUCH PROTESTS. A SUBCONTRACT IS "FOR" THE GOVERNMENT WHERE THE PRIME CONTRACTOR IS OPERATING A GOVERNMENT-OWNED FACILITY, IS A CONSTRUCTION MANAGEMENT PRIME CONTRACTOR UNDER A COST-TYPE CONTRACT, OR IS OTHERWISE SERVING AS A MERE CONDUIT BETWEEN THE GOVERNMENT AND THE SUBCONTRACTOR.

CASTLE/DIVISION OF SYBRON CORPORATION-- RECONSIDERATION:

CASTLE/DIVISION OF SYBRON CORPORATION REQUEST RECONSIDERATION OF OUR JULY 25, 1986, DISMISSAL OF THE FIRM'S PROTEST CONCERNING THE AWARD OF A SUBCONTRACT FOR MEDICAL STERILIZERS BY BLOUNT BROTHERS CORPORATION, THE PRIME GENERAL CONTRACTOR FOR THE CONSTRUCTION OF PROJECT NO. 92497, A VIROLOGY LABORATORY FOR THE CENTER OF DISEASE CONTROL, DEPARTMENT OF HEALTH AND HUMAN SERVICES, ATLANTA, GEORGIA. WE DISMISSED THE PROTEST UNDER SECTION 21.3(F) OF OUR BID PROTEST REGULATIONS BECAUSE WE DO NOT CONSIDER SUBCONTRACTOR SELECTION PROTESTS EXCEPT WHEN THE SELECTION IS MADE BY OR FOR THE GOVERNMENT. SEE 4 C.F.R. SEC. 21.3(F)(10) (1986). CASTLE REQUESTS THAT WE RECONSIDER ON THE GROUND THAT WHILE THE SELECTION OF A SUBCONTRACTOR IS NOT BEING MADE BY THE GOVERNMENT, THE EQUIPMENT WILL BE PAID FOR WITH FEDERALLY ALLOCATED FUNDS AND USED BY FEDERAL EMPLOYEES IN A FEDERAL FACILITY.

CASTLE'S DISAGREEMENT WITH OUR DISMISSAL APPEARS TO BE BASED ON ITS MISUNDERSTANDING OF THE MEANING OF THE TERM "FOR THE GOVERNMENT" IN OUR REGULATIONS. THAT TERM HAS A PRECISE MEANING AND IS ONLY APPLICABLE IN CERTAIN LIMITED INSTANCES, NOT INCLUDING THE ONE PRESENTED HERE. UNDER THE "FOR THE GOVERNMENT" EXCEPTION, WE WILL CONSIDER SUBCONTRACTOR PROTESTS WHERE THEY CONCERN SUBCONTRACTS AWARDED BY PRIME CONTRACTORS OPERATING AND MANAGING DEPARTMENT OF ENERGY FACILITIES; PURCHASE OF EQUIPMENT FOR GOVERNMENT-OWNED, CONTRACTOR-OPERATOR PLANTS; AND PROCUREMENTS BY CONSTRUCTION MANAGEMENT PRIME CONTRACTORS UNDER COST TYPE CONTRACTS. AMERICAN MEDICAL SUPPLY & SERVICE CORP.-- REQUEST FOR RECONSIDERATION, B-219266.2, JULY 24, 1985, 85-2 CPD PARA. 80. IN EACH OF THESE INSTANCES, THE PRIME CONTRACTOR PRINCIPALLY PROVIDES LARGE-SCALE MANAGEMENT SERVICES TO THE GOVERNMENT AND, THEREFORE, GENERALLY HAS AN ON- GOING PURCHASING RESPONSIBILITY. IN EFFECT, THE PRIME CONTRACTOR ACTS AS A MERE CONDUIT BETWEEN THE GOVERNMENT AND THE SUBCONTRACTOR AND, AS A RESULT, THE SUBCONTRACT IS SAID TO BE "FOR" THE GOVERNMENT. INFORMATION CONSULTANTS, INC., B-213682, APR. 2, 1984, 84-1 CPD PARA. 373. THERE IS NO INDICATION THAT THE CIRCUMSTANCES HERE ARE SUCH THAT THE SUBCONTRACT IN QUESTION CAN BE SAID TO HAVE BEEN "FOR" THE GOVERNMENT. ROHDE & SCHWARZ-POLARAD, INC.-- RECONSIDERATION, B-219108.2, JULY 8, 1985, 85-2 CPD PARA. 33.

THE PRIOR DISMISSAL IS AFFIRMED.