BNUMBER: B-261443.3; B-261443.4
DATE: May 20, 1996
TITLE: Shel-Ken Properties, Inc.; McSwain and Associates,
Inc.--Requests for Reconsideration
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Matter of:Shel-Ken Properties, Inc.; McSwain and Associates,
Inc.--Requests for Reconsideration
File: B-261443.3; B-261443.4
Date:May 20, 1996
Charlotte C. Jenkins, and Michael J. McSwain, for the protester.
Robert Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Requests for reconsideration are denied where protesters have not
shown errors of fact or law or information not previously considered
which warrant reversal or modification of earlier decision.
DECISION
Shel-Ken Properties, Inc. and McSwain & Associates, Inc. request
reconsideration of our decision, Shel-Ken Properties., Inc.; McSwain
and Assocs., Inc., B-261443; B-261443.2, Sept. 18, 1995, 95-2
CPD para. 139, dismissing in part and denying in part their protests
against the award of contracts to Intown Properties, Inc. and Prose,
Inc., under request for proposals (RFP) No. 49-94-053, issued by the
Department of Housing and Urban Development (HUD) for real estate
management services (REAMS) in North Carolina.
We deny the requests for reconsideration.
Our earlier decision: (1) dismissed both protesters' allegations that
Intown's post-award subcontracting with former REAMS contractors
participating in the competition indicated the existence of collusive
bidding; (2) dismissed Shel-Ken's allegation that awards were invalid
because the awardees' offers had expired; (3) dismissed a common
allegation that the agency's decision to override the statutory stay
of contract performance was improper; (4) dismissed a common
allegation that the procurement should have been set aside for the
exclusive participation of small business; (5) dismissed McSwain's
allegation that neither awardee possessed a North Carolina real estate
broker's license prior to award; and (6) denied each protester's
allegation that its own proposal was misevaluated.
Common to the requests for reconsideration is an objection to our
treatment of the "collusive bidding" issue; the remaining five parts
of our decision are the subject of individual requests for
reconsideration. Accordingly, we will first consider the common issue
and then do a separate analysis of the individual requests. As
explained below, neither reconsideration request meets the standard
for changing our earlier decision--i.e., neither presents a showing of
errors of fact or law or information not previously considered which
warrant reversal or modification of the decision. Bid Protest
Regulations, 4 C.F.R. sec. 21.12(a) (1995).
"COLLUSIVE BIDDING"
Both protesters alleged that Intown's post-award subcontracting with
former REAMS contractors that participated in the competition was
indicative of an attempt to manipulate the procurement in an improper
manner. We dismissed this allegation because such allegations concern
possible criminal implications which are not for resolution by this
Office; rather, as we noted, if the contracting officer suspected
collusion, the matter was appropriate for referral to the Attorney
General.
In each request for reconsideration, the parties suggest that
"collusion" was not the thrust of their protests; rather, they assert,
their protests involved the possible violation of Federal Acquisition
Regulation (FAR) sec. 52.214-17, a clause which requires "bidders" to
disclose affiliations and is included in solicitations when the
contracting officer deems it necessary to ensure against improper
bidding practices--e.g., collusive bidding.
A review of the issue as raised by each protester during the course of
the protests reveals that neither firm coherently explained how
post-award subcontracting necessarily leads to a conclusion that the
firms were affiliated at the time offers were submitted. Nonetheless,
as we have consistently held, an improper procurement practice such as
collusion is for the contracting officer to consider in determining
responsibility and in deciding whether to refer the matter to the
Department of Justice. Conva-Lance, Inc., B-244578, July 5, 1991,
91-2 CPD para. 31.
SHEL-KEN'S REQUEST FOR RECONSIDERATION
At the outset we note that Shel-Ken states that our analysis of the
evaluation of its own proposal--which led to its elimination from the
competitive range in this negotiated procurement--is "no longer an
issue with our firm." Notwithstanding this position, Shel-Ken takes
further issue with our treatment of two dismissed allegations--i.e.,
the issues involving expired bids and the unrestricted nature of the
procurement.
Expired Bids
Shel-Ken alleged that the awards were invalid because the awardees'
"bids" were allowed to expire prior to the mailing of the notices of
award. The agency responded to this allegation and we found that
Shel-Ken had abandoned the issue for failing to rebut the agency's
position in its comments on the agency report.
Shel-Ken points to certain cryptic remarks contained in a submission
styled a rebuttal to the agency report which is principally a personal
attack on agency counsel. Even if we were to consider these remarks
as a substantive rebuttal, the outcome would not change because where,
as here, companies offer at least the minimum acceptance period set
forth in the RFP, they may unilaterally revive their offers without
any resulting prejudice to other offerors. Rentfrow, Inc., B-243215,
July 5, 1991, 91-2 CPD para. 25.
Failure To Set Aside For Small Businesses
Shel-Ken alleged that the RFP should have been set aside for small
businesses. We dismissed the allegation as untimely because it
involved a challenge to an alleged solicitation impropriety which was
not protested prior to the time set for receipt of initial proposals.
In its request for reconsideration, Shel-Ken characterizes the issue
as a challenge to an undisclosed failure on the part of the
contracting officer to consider past small business participation
before issuing the RFP. This line of argument is not supported by the
record, which indicates that Shel-Ken believed, prior to the time set
for closing, that a set-aside was supportable; Shel-Ken itself
references a 1993 document purporting to underline its position and
refers to its knowledge of expressions of interest from small
businesses to HUD. Thus, there is no basis for disturbing our earlier
decision in this regard.
MCSWAIN REQUEST FOR RECONSIDERATION
Broker's Licenses
McSwain alleged that neither awardee possessed a state broker's
license prior to award and argued that this precluded the acceptance
of their proposals. Noting that the only reference of record to
licensing was contained in pre-bid conference minutes, which were not
incorporated into the RFP, we dismissed the allegation because,
without a specific requirement that a license be obtained prior to
award, the contracting officer was not obligated to consider whether
an offeror had such license as a precondition to award. McSwain
disputes our finding that the minutes were not incorporated into the
RFP and urges that the minutes establish a precondition to award.
Even if the record had established that the minutes were incorporated,
the result would not change. The reference to licenses merely advises
offerors that a broker's license will be required for performance and
that evidence of licensing "should" be submitted with initial offers.
It does not constitute a specific requirement for possession of a
license prior to award. Accordingly, the contracting officer had no
basis to reject the offers as argued by McSwain. Honolulu Marine,
Inc., B-248380, Aug. 6, 1992, 92-2 CPD para. 87.
Stay of Contract Performance
McSwain objected to the agency's decision to override the statutory
stay of contract performance. Citing Harding Lawson Assocs.; ICF
Technology, Inc.--Recon., B-239231.7; B-239231.8, Dec. 4,
1990, 90-2 CPD para. 450, we dismissed the allegation because our
jurisdiction does not encompass the review of such determinations.
McSwain bases its reconsideration request on a reading of that
decision which would first have us find that an agency's determination
to override was proper before we declined to review it; this is simply
a misreading by the protester of our Office's holding in that case.
For an expended statement of the law in this regard, see Mark Group
Partners and Beim & James Properties III, Joint Venture,
B-255762 et al., Mar. 30, 1994, 94-1 CPD para. 224, in which we stated:
"Where an agency determines that urgent and compelling
circumstances require performance notwithstanding the stay
provisions of the Competition in Contracting Act . . ., its
only obligation is to inform our Office of that decision. . .
. There is no requirement that a protester be allowed to
rebut the agency's finding, nor do we review such a
determination."
The requests for reconsideration are denied.
Comptroller General
of the United States