B-233082.2, Nov 16, 1988

B-233082.2, Nov 16, 1988

PROCUREMENT - Bid Protests - Subcontracts - GAO review DIGEST: 1. Under its Bid Protest Regulations, the General Accounting Office (GAO) does not consider protests concerning subcontractor selection except when the selection is made "by or for" the government. PROCUREMENT - Contract Management - Contract administration - Contract terms - Compliance - GAO review 2. Under an existing contract, whether materials supplied will meet contract specifications is a matter of contract administration which the GAO does not review.

The Honorable Tony Coelho

House of Representatives

This is in response to your letter of October 12, 1988, requesting that we advise you of our ruling in the protest filed by Wescot International, Inc., concerning contract No. N62864-85-C-0055 between the Navy Public Works Center, Subic Bay, Philippines, and Anchortech Incorporated for water treatment plant improvements.

Wescot filed a protest here on October 6, 1988, asserting that the Navy had wrongfully disapproved of materials it had contracted to supply to Anchortech, a government prime contractor. We dismissed the protest on October 14, 1988, in accordance with our Bid Protest Regulations, 4 C.F.R. Sec. 21.3(m) (1988), on two grounds.

First, under 4 C.F.R. Sec. 21.3(m)(10) our Office does not consider protests concerning subcontractor selection except when the selection is made "by or for" the government. This regulation is based on the Competition in Contracting Act of 1984, 31 U.S.C. Sec. 3551(1) (Supp. IV 1986), which gives this Office jurisdiction to decide protests involving awards or proposed awards of contracts by federal agencies.

Basically, a subcontract is considered to be "by or for" the government when the prime contractor principally provides large-scale management services to the government and, as a result, generally has ongoing purchasing responsibility. Thus, except where the prime contractor basically is acting as the government's agent, a subcontract awarded by a government contractor in the course of performing a prime contract generally is not considered to be "by or for" the government. Aerospace Corp., B-231414, June 21, 1988, 88-1 CPD Para. 594.

We did not find Wescot's situation to fall within the limited circumstances in which we will review a subcontractor protest. The contact for water treatment plant improvements is for a limited purpose and does not entail ongoing purchasing responsibilities. As Wescot's protest did not establish that the prime contractor is functioning as the government's agent under this contract, we dismissed it.

We also dismissed Wescot's protest because the Navy's decision as to whether materials supplied by the government prime contractor will meet the contract specifications is a matter of contract administration which is not within our protest jurisdiction.