B-246245, Nov 26, 1991

B-246245, Nov 26, 1991

DIGEST: Lowest ranked offeror with highest evaluated cost who does not challenge the evaluation of its own proposal or intervening offerors or seek the award is not an interested party under the Bid Protest Regulations to challenge the award to the highest ranked, low cost offeror, since the protester would not be in line for award even if the protest were sustained. Harold H. Hinesley for the protester. Theresa McKenna, Esq., Department of the Navy, for the agency. Charles W. Morrow, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

Technology Management, Inc.:

Technology Management, Inc. (TMI) protests the award of a contract to Engineering Management Concepts (EMC) under request for proposals (RFP) No. N00123-91-R-0321, a total small business set-aside, issued by the Department of the Navy, for engineering services. TMI objects to the award on the grounds that EMC's proposal allegedly violated the policy designed to prevent wage busting of professional compensation found in Federal Acquisition Regulation Subpart 22.11 and because the agency did not give timely notice of the award so an effective protest could be filed.

We dismiss the protest.

In response to the protest, the Navy reports that TMI is not an interested party under our Bid Protest Regulations because TMI would not be in line for award if its protest were sustained. The Navy reports that, in response to the RFP, the Navy received five proposals, which it evaluated in accordance with the evaluation criteria to determine the "greatest value" to the government. TMI's proposal was ranked last with a weighted technical score of 30.31 out of a possible total of 60 points, while EMC received 60 points and the remaining offerors were ranked in between. TMI's cost was evaluated as the highest cost with a weighted score of 23.91 out of a possible total of 40 points. EMC's lowest cost proposal again received the maximum total cost score of 40, and the remaining offerors' proposals fell in between. TMI does not argue that it would be in line for award if its protest were sustained. Instead, it argues that it is under a duty to report alleged procurement violations as a "prospective offeror," and this makes it an interested party.

Under the Competition in Contracting Act of 1984 (CICA), and our Regulations, a protester must qualify as an interested party before our Office may consider its protest. See 31 U.S.C. Sec. 3553 (1988); 4 C.F.R. Sec. 21.1(a) (1991). An interested party is defined as an "actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by the failure to award the contract." 31 U.S.C. Sec. 3551(2); 4 C.F.R. Sec. 21.0(a). In order to have the requisite economic interest, a protester challenging an award must be in line for award if the protest is sustained. See RRRS Enters., Inc.-- Recon., B-241512.3, June 10, 1991, 91-1 CPD Para. 551.

TMI has neither challenged the agency's technical evaluation of its own proposal or of the intervening offerors' proposals. Indeed, it concedes that its protest does not request the award. While TMI argues that mere participation in the procurement is sufficient to challenge the process, we equate the protest of an unsuccessful offeror, who is not in line for award, to be no greater than that of a taxpayer, an interest not adequate for maintaining a bid protest. See ISC Def. Sys., Inc.-- Recon., B-236597.3, Apr. 5, 1990, 90-1 CPD Para. 360. Under the circumstances, TMI does not have the requisite economic interest to qualify as an interested party.

The protest is dismissed.