B-225358.2, DEC 9, 1986, OFFICE OF THE GENERAL COUNSEL

B-225358.2, DEC 9, 1986, OFFICE OF THE GENERAL COUNSEL

PROCUREMENT - BID PROTEST - MOOT ALLEGATION - GAO REVIEW PROCUREMENT - COMPETITIVE NEGOTIATION - OFFERS - FOREIGN PRODUCTS - EVALUATION - EQUALITY PROCUREMENT - CONTRACT MANAGEMENT - CONTRACT ADMINISTRATION - CONVENIENCE TERMINATION - ADMINISTRATIVE DETERMINATION - GAO REVIEW DIGEST: IN RESPONSE TO CONGRESSIONAL INQUIRY CONCERNING BID PROTEST, GENERAL ACCOUNTING OFFICE EXPLAINS THAT ITS DECISION ON THE PROTEST (1) FOUND PROCURING AGENCY'S TERMINATION OF A COMPETITOR'S CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT PROPER BECAUSE THE ADDITION OF A BUY AMERICAN ACT, 41 U.S.C. SEC. 10A (1982), EVALUATION FACTOR RESULTING IN PROTESTER'S DISPLACEMENT AS LOW OFFEROR, WAS ERRONEOUS, AND (2) DISMISSED AS ACADEMIC PROTEST ALLEGING IMPROPER EVALUATION BECAUSE THE AGENCY ASSERTED THAT AN AWARD UNDER THE ORIGINAL SOLICITATION WOULD NO LONGER MEET ITS NEEDS AND THE PROTESTER WOULD HAVE AN OPPORTUNITY TO COMPETE FOR THE SOLICITATION.

THE HONORABLE HENRY A. WAXMAN:

THIS RESPONDS TO YOUR OFFICE'S LETTER OF NOVEMBER 4, 1986, TO THE COMPTROLLER GENERAL, EXPRESSING AN INTEREST IN THE BID PROTEST SUBMITTED BY TIGER OPTICAL ELECTRONICS CORPORATION. THE PROTEST CONCERNED THE ALLEGEDLY IMPROPER EVALUATION OF THE FIRM'S OFFER UNDER REQUEST FOR PROPOSALS NO. DAAA09-85-R-0300, ISSUED BY THE U.S. ARMY ARMAMENT, MUNITIONS AND CHEMICAL COMMAND FOR BINOCULARS. ENCLOSED IS A COPY OF OUR DECISION OF NOVEMBER 13, 1986, DISMISSING THE PROTEST.

ON OCTOBER 1, 1986, THE ARMY AWARDED A CONTRACT TO PIONEER & COMPANY. OCTOBER 24, 1986, HOWEVER, BEFORE WE HAD CONSIDERED WHETHER THE AGENCY HAD PROPERLY EVALUATED TIGER OPTICAL'S OFFER, THE AGENCY TERMINATED PIONEER'S CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT. THE AGENCY HAD DISCOVERED THAT THE ADDITION OF AN EVALUATION FACTOR TO TIGER OPTICAL'S PRICE, WHICH HAD BEEN DONE PURSUANT TO THE BUY AMERICAN ACT, 41 U.S.C. SEC. 10A (1982), HAD NOT BEEN JUSTIFIED. THE AGENCY ADVISED US THAT IT WOULD RESOLICIT THE REQUIREMENT WITH AN INCREASE IN QUANTITY AND OTHER CHANGES.

IN OUR DECISION, WE AGREED THAT THE APPLICATION OF THE BUY AMERICAN ACT EVALUATION FACTOR TO TIGER OPTICAL'S OFFER, WHICH RESULTED IN THE FIRM'S DISPLACEMENT AS THE LOW OFFEROR, HAD BEEN ERRONEOUS. ALTHOUGH THE ACT GENERALLY PROVIDES A PREFERENCE FOR DOMESTIC GOODS OVER THOSE FROM NONQUALIFYING COUNTRIES, WHEN ALL OFFERS ARE FOR FOREIGN END PRODUCTS, THE AGENCY MUST EVALUATE THEM ON AN EQUAL BASIS. DEPARTMENT OF DEFENSE FEDERAL ACQUISITION REGULATION SUPPLEMENT, 48 C.F.R. SEC. 225.105 (S-71, 72) (1985). SINCE BOTH OFFERS IN THIS CASE WERE FOR FOREIGN END PRODUCTS, THE AGENCY'S APPLICATION OF AN EVALUATION FACTOR ONLY TO TIGER OPTICAL'S OFFER WAS IMPROPER AND, ACCORDINGLY, WE FOUND THAT THE AGENCY HAD PROPERLY TERMINATED PIONEER'S CONTRACT.

ALTHOUGH TIGER OPTICAL ARGUED THAT IT SHOULD HAVE RECEIVED AN AWARD UNDER THE ORIGINAL SOLICITATION, WE FOUND THE AGENCY DETERMINATION TO RESOLICIT REASONABLE, SINCE IT ASSERTED THAT AN AWARD UNDER THE ORIGINAL SOLICITATION WOULD NO LONGER MEET ITS NEEDS AND TIGER OPTICAL WOULD HAVE AN OPPORTUNITY TO COMPETE FOR THE RESOLICITATION. WE THEREFORE FOUND THE PROTEST CONCERNING THE EVALUATION UNDER THE ORIGINAL SOLICITATION ACADEMIC.

TIGER OPTICAL HAS REQUESTED A RECONSIDERATION OF OUR DECISION. IT NOW ALLEGES THAT IT SHOULD RECEIVE AN AWARD UNDER THE ORIGINAL SOLICITATION BECAUSE THE RESOLICITATION MAKES NO CHANGE IN THE SPECIFICATIONS AND BECAUSE, ACCORDING TO TIGER OPTICAL, ANY CHANGE IN QUANTITY CAN BE ACCOMMODATED THROUGH USE OF THE OPTION PROVISIONS OF THE ORIGINAL SOLICITATION.

WE ARE AWAITING A REPORT FROM THE AGENCY CONCERNING THESE ALLEGATIONS. WE ANTICIPATE RECEIVING IT AT THE BEGINNING OF JANUARY, AFTER WHICH TIGER OPTICAL WILL HAVE A FURTHER OPPORTUNITY TO SUBMIT COMMENTS. WE WILL ADVISE YOU OF OUR DECISION AFTER FULL CONSIDERATION OF THE MATTER. IN THE MEANWHILE, THE ATTORNEY HANDLING THE MATTER IS PENNY AHEARN, WHO CAN BE REACHED ON (202) 275-9740.