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