BNUMBER: B-274272; B-274342; and B-274343.
DATE: August 29, 1996
TITLE: Total Procurement Services, Inc.
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Matter of:Total Procurement Services, Inc.
File: B-272343.2 et al.[1]
Date:August 29, 1996
Richard Snyder for the protester.
Rowena H. Conkling, Esq., Department of Transportation, and Michael
Colvin, Department of Health and Human Services, for the agencies.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Value-Added Network (VAN) is not an interested party under the Bid
Protest Regulations eligible to protest the purchase item descriptions
contained in request for quotations (RFQ) issued through the Federal
Acquisition Computer Network where there is no evidence that the VAN
does or intends to do anything other than provide communication
services, and the remote possibility that it might or could submit
quotes does not make it an actual or prospective offeror with a
sufficiently direct interest in the RFQs to be considered an
interested party.
DECISION
Total Procurement Services, Inc. (TPS) protests a number of requests
for quotations (RFQ) issued by the John A. Volpe National
Transportation Systems Center, United States Department of
Transportation (DOT), and the National Institutes of Health (NIH) of
the Department of Health and Human Services (HHS). The HHS RFQs are
for various medical and other equipment for use at NIH and the DOT
RFQs are for a variety of computer equipment and supplies. TPS
alleges that the RFQs contain inadequate and/or defective purchase
item descriptions.
We dismiss the protests because the protester is not an interested
party.
These RFQs were issued through the Federal Acquisition Computer
Network (FACNET). FACNET is a government-wide electronic data
interchange systems architecture that provides for electronic data
interchange of acquisition information between the government and the
private sector, employs nationally and internationally recognized data
formats, and provides universal user access. 41 U.S.C. sec. 426(a),
(b)(3) (1994); Federal Acquisition Regulation (FAR) sec. 4.501. It
creates an electronic market place for procuring supplies and services
in which agencies can post notices of and receive responses to
solicitations, post notices of contract awards, and issue orders where
practicable; and private sector users can access notice of
solicitations, receive orders, and access information on contract
awards. 41 U.S.C. sec. 426(b)(1), (2).
A contracting agency enters solicitation data into FACNET through a
business application program on its computer. The data is then
electronically transmitted to a government gateway, which is a
computer/communications system performing a variety of data management
functions, such as converting business application program data into
the proper data format for subsequent transmission. After processing
by the gateway, the information is transmitted to a network entry
point, which is also government operated, and relayed to Value-Add
Networks (VAN).[2] VANs, which are private sector entities, then
provide information obtained from FACNET to their customers, who have
registered to do business with the government and are known as trading
partners. Trading partners can submit quotations through FACNET to
the contracting agency in reverse order to that described above.
Both DOT and HHS contend that TPS does not qualify as an interested
party eligible to maintain these protests because it is not an actual
or prospective supplier or trading partner that could or would submit
quotes on its own behalf in response to the RFQs, but rather is a VAN
used to submit quotes by trading partners via FACNET. In this regard,
DOT notes that TPS has not previously submitted quotes on its own
behalf to the Volpe Center for computer equipment or supplies and
there is no suggestion that TPS intends to do so here. HHS also notes
that TPS has not registered as a trading partner to submit quotes via
FACNET, as required by FAR sec. 4.503(a), which suggests that TPS does
not intend to submit quotes on its own behalf via FACNET. DOT further
asserts, and has provided documentation that evidences, that TPS is
not a manufacturer or vendor of computer equipment or supplies, and
that it lacks the capacity and experience to bid and supply the
computer equipment to be acquired under the RFQs. Pursuant to section
21.3(c) of our Bid Protest Regulations, 4 C.F.R. sec. 21.3(c) (1996), DOT
requested that the protester furnish documentation, such as a
description of its capabilities as a responsible vendor of computer
equipment and the names of references that can provide past
performance information on similar procurements, establishing that it
is an interested party with capability to provide the solicited items.
We found the request appropriate and requested TPS to comply.
Under the bid protest provisions of the Competition in Contracting Act
of 1984, 31 U.S.C. sec. 3551-3556 (1994), only an "interested party" may
protest a federal procurement. That is, a protester must be an actual
or prospective supplier whose direct economic interest would be
affected by the award of a contract or the failure to award a
contract. 4 C.F.R. sec. 21.0 (a). Our Regulations therefore require
that a protest set forth all information establishing that the
protester is an interested party for the purpose of filing a protest.
4 C.F.R. sec. 21.1(c)(5). Whether a party is interested involves
consideration of a variety of factors, including the nature of issues
raised, the benefit of relief sought by the protester, and the party's
status in relation to the procurement. Black Hills Refuse Serv., 67
Comp. Gen. 261 (1988), 88-1 CPD para. 151.
In response to the dismissal requests, TPS does not assert that it
intends to submit responses on its own behalf to the RFQs or that it
had the capability of fulfilling the agencies requirements. Instead,
TPS states that there is no requirement that it have previously
submitted quotes to be considered an interested party. For example,
while TPS does not deny that it has not registered as a trading
partner as contemplated by FAR sec. 4.503(a), it claims that this would
not preclude it from submitting a quote if it chose to do so. TPS
further explains that although it is a VAN, which develops and markets
its own electronic data interchange software,[3] VANs are not
prohibited from becoming trading partners that could submit quotes on
their own behalf. TPS also claims that it is an authorized
distributor of PKZIP (compression software) for mid-range and
mainframe computers, which it has marketed to the Defense Logistics
Agency and other clients and has offered in response to several
electronic data interchange and "regular" RFQs for computer hardware
and software issued by agencies other than HHS and DOT. However, TPS
does not allege that it has previously offered or supplied the items
solicited by these RFQs, or that it has the capability, desire, or
intent of doing so. Nor has TPS provided any documentation showing
that its business includes supplying the items called for by these
RFQs, despite being requested to respond to the agency request for
such information to substantiate TPS' interested party status.[4]
As indicated, a protester has the burden of setting forth all
information establishing that it is an interested party for the
purpose of filing a protest. 4 C.F.R. sec. 21.1(c)(5). Where, as here,
a protester's interested party status is in question, the protester
may not simply assert that it might take steps to become a party that
would be considered interested; instead, the protester generally must
show that it intends to compete under the solicitation, and, where
appropriate, that it has the necessary capacity and experience to
compete; that it has competed in the past on similar projects; or that
it has performed similar projects in the past. See PPG Indus., Inc.,
B-272126, June 24, 1996, 96-1 CPD para. 285; Bulloch Int'l, B-265982, Dec.
26, 1995, 96-1 CPD para. 5.
Here, as indicated, TPS' response to the agency assertions that TPS
has neither the intent or the capability to supply the solicited items
is simply to state that it could submit a quote if it chose to do so,
without any indication that TPS intends or intended to do so, or that
it has the capability of satisfying the requirements of the RFQs if it
did do so. Nor does TPS assert that it is acting as an authorized
agent of an actual or prospective bidder (trading partner). Under
such circumstances, we do not believe that TPS has established that it
is a "prospective bidder or offeror" with a sufficiently "direct
economic interest" in these RFQs to be considered an interested party.
TPS also asserts that VANs have a direct economic interest in the
government issuing clear and concise RFQs because VANs disseminate
RFQs by federal supply class (FSC), and that when the government
incorporates an erroneous FSC the wrong potential trading partners
receive the RFQ and blame the VAN for providing useless quotes to them
for a fee. This economic interest, even if true, is not that of an
actual or prospective bidder, but that of a VAN, and thus is not
sufficient to qualify TPS as an interested party. See Bulloch Int'l,
supra. While we have allowed VANs to protest the terms of their
license agreement to provide VAN services,
TPS has not presented that case here. See Total Procurement Servs.,
Inc., B-255934.3, Aug. 16, 1994, 94-2 CPD para. 74.
The protest is dismissed.
Comptroller General
of the United States
1. B-272344.2; B-272345.2; B-272347.2; B-272348.2; B-272349.2;
B-272453; B-272512; B-272513; B-272514; B-272515; B-272516;
B-272517; B-272566, B-272813; B-272814; B-272815; B-272890; B-272891;
B-272892; B-272900; B-272901; B-272902; B-272903; B-272904;
B-272923; B-272941; B-274082; B-274174; B-274270; B-274271;
B-274272; B-274342; and B-274343.
2. A VAN, typically a commercial information service, provides access
to FACNET as well as communications services, electronic mailboxes and
other services for electronic data interchange transmissions. See FAR sec.
4.501.
3. TPS states that it sells computers, modems, ancillary equipment,
accessories and supplies to potential trading partners who are
interested in conducting business with the government via electronic
data interchange. FACNET contemplates Value-Added Services, which can
provide services beyond communications to customers, ranging from
translation and segregation of data to complete turn-key business
systems support for customers. FAR sec. 4.501.
4. The only documentary support submitted was in the form of a TPS
invoice reflecting a transaction with an unidentified nongovernment
customer for "insect repellant," "inspect repellant," TPS electronic
data interchange software lease, electronic mail box rental, delivery
charge and a fastract modem.