TITLE:  U.S. Reconstruction and Development Corporation, B-296195, June 7, 2005
BNUMBER:  B-296195
DATE:  June 7, 2005
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   Decision

   Matter of: U.S. Reconstruction and Development Corporation

   File: B-296195

   Date: June 7, 2005

   Kyle Sampson for the protester.

   Capt. Sunny S. Ahn, Department of the Army, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Contracting agency properly rejected protester's offer as technically
unacceptable where the solicitation called for diesel generators to be
delivered to Iraq and the protester offered unleaded gasoline generators
to be delivered to Kuwait.

   DECISION

   U.S. Reconstruction and Development Corporation (USRDC) protests the
rejection of its offer under solicitation No. W912D1-05-T-0076, issued by
the U.S. Army Contracting Command Kuwait to supply diesel-powered
generators to be delivered to Camp Bucca, Iraq.

   We deny the protest.

   On January 22, 2005, the U.S. Army Contracting Command Kuwait issued a
solicitation requesting offers to supply 30 diesel-powered generators to
be delivered to Camp Bucca, Iraq.  The solicitation stated that award
would be made to the firm submitting the lowest-priced, technically
acceptable offer.  The Army received nine timely offers.  USRDC submitted
the lowest total price.  However, USRDC proposed an unleaded gasoline
generator that it would deliver to Camp Arifjan, Kuwait.  The contracting
officer noted the deficiencies in generator type and delivery location in
USRDC's offer and rejected it as unacceptable.  On March 20, the
contracting officer awarded the contract to Smart Traders, the firm with
the lowest-priced, technically acceptable offer, and this protest
followed.

   USRDC alleges that its offer mistakenly indicated that it would supply a
gasoline generator, as opposed to the diesel generator the solicitation
required, and that the contracting officer had an obligation to examine
the offers for such apparent mistakes and to seek verification of any
offer containing an apparent mistake.   The agency argues that the
deficiencies in USRDC's offer do not constitute apparent mistakes and that
the offer in fact was technically unacceptable.

   The contracting officer properly rejected USRDC's offer for failing to
conform to the terms of the solicitation.  USRDC offered a
gasoline-powered generator when the solicitation called for a
diesel-powered one, and quoted delivery to Kuwait instead of the specified
location in Iraq.  Accordingly, the contracting officer properly rejected
the offer as technically unacceptable because it took exception to a
material feature of the item itself, as well as to the delivery
requirements in the solicitation.   See American Fuel Cell & Coated
Fabrics Co., B-293001, B-293020, Jan. 12, 2004, 2004 CPD P 13 at 5, Ralph
Constr., Inc., B-222162, June 25, 1986, 86-1 CPD P 592 at 2-4. 

   In support of its argument that the contracting officer had an obligation
to examine USRDC's offer for apparent mistakes and to seek verification of
any offer containing an apparent mistake, USRDC cites Federal Acquisition
Regulation (FAR) S 14.407 and S 15.508; neither provision is applicable
here.  FAR S 14.407 applies to correction of mistakes in the context of
sealed bids; the procurement here was not conducted using sealed bid
procedures.  Similarly, FAR S 15.508 refers to post-award mistakes in a
contractor's proposal and thus likewise is inapplicable here.[1] 

   Finally, the protestor also argues that the contracting officer failed to
indicate whether the awardee met certain registration requirements, such
as having a valid and active DUNS number.  Since USRDC's offer was
properly found unacceptable, and there is another firm besides the awardee
eligible for award, USRDC is not an interested party to raise this
argument.  4 C.F.R. S 21.1(a) (2005); see TRS Research, B-283342, Nov. 4,
1999, 99-2 CPD P 85 at 4.  In any event, we note that the agency reports
that the awardee has complied with all of the registration requirements of
the solicitation.

   The protest is denied.

   Anthony H. Gamboa
General Counsel

   ------------------------

   [1] While in a negotiated procurement a contracting officer generally has
discretion to engage in communications with an offeror to clarify
mistakes, FAR S 15.306(b)(3)(i), there simply was no reason for the
contracting officer to even consider doing so here.  As noted above, USRDC
took exception to two material terms of the solicitation; in no way could
those deficiencies in its proposal be regarded as "mistakes" within the
meaning of any of the FAR provisions discussed above.  See, e.g., U.S.
Facilities, Inc., B-293029, B-293029.2, Jan. 16, 2004, 2004 CPD P 17 at 14
(setting forth circumstances that warranted the use of the provisions in
FAR S 15.306(b)(3)(i), where it appeared to the contracting officer that
an offeror's price might have been generated using an incorrect
multiplier); MKB Constructors, Joint Venture--Recon., B-250413.2, June 8,
1993, 93-1 CPD P 441 at 4 (noting that where bid is otherwise responsive,
and where bid establishes exact nature of error and intended bid, FAR
authorizes correction of an "obvious clerical error" apparent from the
face of the bid); Kentucky Bridge and Dam, Inc., B-235806, July 17,1989,
89-2 CPD P 56 at 3 (noting that correctible mistakes under FAR S 14.407-2
include an obvious misplacement of a decimal point or the use of an
obviously incorrect discount).