M & M Filipino Cuisine; Gloria's Runway Cafe

Matter of: M & M Filipino Cuisine; Gloria's Runway Cafe File: B-253576; B-253576.2 Date: July 2, 1993

PROCUREMENT Bid Protests Prime contractors Contract awards Subcontracts GAO review Protest challenging award of subcontract by Department of Housing and Urban Development prime contractor is dismissed as outside General Accounting Office bid protest jurisdiction where subcontractor selection was not made "by or for" the government.

Attorneys

DECISION M & M Filipino Cuisine and Gloria's Runway Cafe protest the award of a contract to La Lorenz under request for proposals (RFP) No. RM- 016F-RD, issued by Republic Management Services, Inc. (RMS) for food services at the Lorenz Hotel in Redding, California, a multi-family housing project owned by the Department of Housing and Urban Development (HUD).

We dismiss the protest.

RMS manages the Lorenz Hotel under a contract with HUD in which it serves as project manager. Under the contract, RMS is responsible for conducting the day-to-day management duties necessary to operate, repair, and properly maintain the Lorenz Hotel; these duties include subcontracting for such services as may be necessary. Pursuant to this responsibility, RMS prepared the RFP here for a subcontract for food services, and submitted it to HUD for approval. Among the offerors were M & M Filipino Cuisine, Gloria's Runway Cafe, and La Lorenz. Upon learning that RMS had selected La Lorenz for the award, both M & M Filipino Cuisine and Gloria's Runway Cafe filed protests. Both protesters essentially object to the award decision on the basis that the awardee is not qualified for award, and that their proposals satisfied the RFP requirements at a much lower cost.

Under the Competition in Contracting Act of 1984 (CICA), our Office has jurisdiction to resolve bid protests concerning solicitations and contract awards that are issued "by a federal agency." 31 U.S.C. Sec. 3551(1) (1988). In the context of subcontractor selections, we interpret the Act to authorize our Office to review protests only where, as a result of the government's involvement in the award process or the contractual relationship between the prime contractor and the government, the subcontract in effect is awarded on behalf of the government, that is, where the subcontract is awarded "by or for" the government. See Ocean Enters., Ltd., 65 Comp.Gen. 585 (1986), 86-1 CPD Para. 479, aff'd, 65 Comp.Gen. 683 (1986), 86-2 CPD Para. 10. For example, we have considered subcontractor selections to be "for" the government where they concern: (1) subcontracts awarded by prime contractors operating and managing certain Department of Energy facilities; (2) purchases of equipment for government-owned, contractor-operated plants; and (3) procurements by construction management prime contractors. See id. In each of these situations, the prime contractor principally provides large-scale management services to the government and, as a result, generally has an ongoing purchasing responsibility. In effect, the prime contractor acts as a middleman, or conduit, between the government and the subcontractor and, as a result, the subcontract is said to be awarded "for" the government. Id. We have considered subcontractor selections to have been made "by" the government where the agency's involvement in the selection process was so pervasive as to amount to a procurement by the government. See University of Michigan; Indus. Training Sys. Corp., 66 Comp.Gen. 538 (1987), 87-1 CPD Para. 643.

The subcontract award here does not meet either of these standards. First, there is no indication that RMS is merely acting as a middleman or conduit between the government and the subcontractor. While RMS does provide management services for a government-owned facility, it is not performing the type of large-scale governmental operations resulting in ongoing purchasing responsibility that would render its subcontract awards "for" the government. In this regard, although RMS is responsible for day- to-day management functions, HUD retains responsibility for maintenance, repair and construction needs. Moreover, while the Lorenz Hotel is owned by the government, it is not a "government facility" as defined by the Federal Acquisition Regulation (FAR). The FAR defines a government facility in the context of a management and operating contract as a "research, development, special production, or testing establishment." FAR Sec. 17.601. Thus, a Department of Energy research and testing facility qualifies as a government facility for the purpose of applying the "by or for" exception to a subcontract awarded by the prime contractor that manages and operates the facility. A HUD multi-family housing project, on the other hand, does not.

Further, the subcontract is not one essentially awarded "by" the government. HUD was not involved in the development of the solicitation requirements or award criteria, nor was it involved in the evaluation of proposals. The agency's only role in the selection process here was to approve the RFP that RMS had prepared, and to approve RMS' selection of La Lorenz once RMS had completed the evaluation.[1] The mere selection does not amount to the active and direct participation required for us to find that a procurement essentially has been conducted by the government. Royal Investigation and Patrol, Inc., B-250690, Feb. 17, 1993, 93-1 CPD Para. 149; Edison Chouest Offshore, Inc.; Polar Marine Partners, B-230121.2; B-230121.3, May 19, 1988, 88-1 CPD Para. 477.

M & M Filipino Cuisine finally contends that the contract was awarded "by" HUD because the prior contract for these services, held by M & M Filipino Cuisine, was apparently issued and administered by HUD. However, the fact that HUD may have issued and administered the prior contract has no bearing on this procurement, as each procurement is a separate transaction and agency action under one procurement does not affect the propriety of the agency's action under a different procurement. See Dr. Loyd J. Kiernan, B-250300, Dec. 30, 1992, 92-2 CPD Para. 455.

We conclude that RMS' award to La Lorenz is not a subcontract award "by or for" the government. Accordingly, we are without jurisdiction to review the matter.

The protest is dismissed.

1. Both protesters argue that HUD was in fact responsible for the evaluation, since the solicitation stated that, for evaluation purposes, "the government" would consider the proposed prices in determining the proposal most advantageous to "the government." We disagree. Solicitations must be interpreted as a whole, construing them in a reasonable manner that gives effect to all of their provisions. See Lithos Restoration, Ltd., 71 Comp.Gen. 367 (1992), 92-1 CPD Para. 379; Target Corp., B-205283.2, Aug. 24, 1982, 82-2 CPD Para. 170. We find that the language to which the protesters refer is "boiler plate" and of little effect in view of the specific language of the RFP's Standard Form 1442, which clearly states not only that RMS issued the RFP, but also that offers should be addressed to RMS. See Target Corp., supra.