BNUMBER:  B-272126
DATE:  June 24, 1996
TITLE:  PPG Industries, Inc.

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Matter of:PPG Industries, Inc.

File:     B-272126

Date:June 24, 1996

David S. Addington, Esq., Baker, Donelson, Bearman & Caldwell, P.C., 
and Guy A. Zoghby, Esq., for the protester.
Dennis J. Gallagher, Esq., Department of State, for the agency.
Ralph O. White, Esq., and Behn Miller, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protester that would likely participate in a procurement as a 
subcontractor, rather than as a prime contractor, is not an interested 
party to challenge an agency's intent to make a sole source award.  

DECISION

PPG Industries, Inc. protests the proposed award of a sole source 
contract for passport printers, associated printer and document 
consumables and printer maintenance to the Toppan Printing Co., Ltd.  
PPG argues that the agency's decision to purchase only Toppan's Model 
MP-300 photodigital passport printer is improper because the State 
Department wrongly concluded that Toppan is the only responsible 
source of equipment, supplies and services for high-security passport 
production.  PPG also contends that the award of this contract to 
Toppan, a Japanese company, violates report language on the use of 
domestic products for passport production in the Foreign Relations 
Authorization Act for Fiscal Years 1994 and 1995; violates the Buy 
American Act; and contravenes U.S. policy.

We dismiss the protest.

Prior to preparing an agency report, the State Department requested 
dismissal of this protest on the grounds that PPG is not a 
manufacturer of passport printers, and thus is not an interested party 
for purposes of pursuing a protest in this forum.  PPG manufactures a 
synthetic material called Teslin that can be used in lieu of paper in 
the printing of security documents.  The State Department contends 
that while PPG might be a subcontractor or supplier of its product to 
offerors proposing to supply other makes and models of passport 
printers, it would not itself be an offeror.  Alternatively, the State 
Department contends that PPG's letter of interest to the agency in 
response to a February 5, 1996 Commerce Business Daily (CBD) notice of 
intent to make a sole source award was not properly identified as an 
agency-level protest, and was not timely filed in response to the CBD 
notice.[1]

Our authorizing statute, the Competition in Contracting Act of 1984, 
31 U.S.C.  sec.  3551-3556 (1994) provides that only an "interested party" 
may protest a federal procurement.  That is, a protester must be an 
actual or prospective bidder or offeror whose direct economic interest 
would be affected by the award of a contract, or the failure to award 
a contract.  31 U.S.C.  sec.  3551; 4 C.F.R.  sec.  21.0(a) (1996).  

In response to the State Department's contention that PPG does not 
manufacture or sell a printer that makes passports, PPG concedes that 
it currently does not manufacture or sell such printers, and has not 
manufactured or sold them in the past.  However, PPG identifies 
printers manufactured by Ricoh, Canon and Xerox, and states that it 
can purchase such printers and could use one of them to make an offer 
as a prime contractor for such a solicitation.  In addition, PPG cites 
to language in our prior decision in Johnson Controls, Inc., B-243605, 
Aug. 1, 1991, 91-2 CPD  para.  112, wherein we stated: 

     "Where a protester challenges the terms of a solicitation and the 
     remedy sought is the opportunity to compete under a revised 
     solicitation, it is an interested party to pursue the protest 
     regardless of whether or not it submitted--or could have 
     submitted--a bid or offer under the challenged solicitation, so 
     long as the challenged requirement has compromised its 
     competitive position."

The language quoted above is but part of the analysis set forth in the 
Johnson Controls decision, and is not dispositive of the question 
before us in this case.  In that case, a protester challenged as 
overly restrictive specifications incorporated in a solicitation for a 
computer-based management and control system to be installed in a new 
federal building and courthouse.  The protester responded to an 
interested party challenge by showing that it had the necessary 
capacity and experience to bid; that it had bid in the past on similar 
projects; that it had performed similar projects in the past; and that 
it intended to submit a bid under the solicitation  Id. at 3.  Given 
that showing, our Office concluded that the protester established its 
standing to challenge the solicitation even though it might not be 
able to submit a responsive bid or proposal under the specification as 
written.

Here, PPG is unable to show the kind of interest found in the Johnson 
Controls case.  While PPG would like to sell its synthetic product for 
use in making secure passports, PPG does not itself manufacture or 
sell any form of equipment which could prepare passports for the 
Department of State.  Although PPG could clearly purchase such 
equipment from other manufacturers for resale to the Department of 
State, it does not currently sell such equipment, has apparently never 
sold it in the past, and does not clearly indicate that it plans to do 
so in the future--only that it could possibly do so.  Under these 
circumstances, we agree with the Department of State that PPG is not 
an interested party for the purpose of pursuing a protest against the 
intended sole-source purchase of passport printers from Toppan.

The protest is dismissed.

Comptroller General
of the United States

1. Although we conclude that PPG is not an interested party here, we 
disagree that PPG's February 26, 1996 letter to the Department of 
State was not a protest.  The letter clearly objected to the 
acquisition of printers on a sole source basis from Toppan and 
requested the opportunity to sell Teslin to the State Department, even 
though the letter is not captioned as a protest.  American Material 
Handling, Inc., B-250936, Mar. 1, 1993, 93-1 CPD  para.  183.  The State 
Department also incorrectly concludes that a challenge to a proposed 
sole source award is untimely unless filed within 10 days of 
publication of the notice in the CBD.  When an agency publishes a 
notice of intent to make a sole source award in the CBD incorporating 
note 22, offerors are permitted to prepare a statement of their 
ability to participate in the procurement and submit it to the agency 
within 45 days after publication of the notice.  A challenge to an 
intended sole source award is different from the requirement to file a 
timely protest of a CBD notice that otherwise limits an offeror's 
ability to compete.  Compare Chemical Waste Management, Inc., 
B-244443, June 28, 1991, 91-2 CPD  para.  11 and DCC Computers, Inc., 70 
Comp. Gen. 534 (1991), 91-1 CPD  para.  514 (explaining procedure for 
responding to a CBD notice incorporating note 22) with Digicomp 
Research Corp., B-262139, Dec. 1, 1995, 95-2 CPD  para.  246 (CBD notice 
announcing competition among limited pool of prequalified 
offerors--but not incorporating footnote 22 applicable to sole source 
procurements--gave protester notice of its basis for protest, and 
protest was required to be filed within 10 days of such notice).