Shel-Ken Properties, Inc.; McSwain and Associates,

Shel-Ken Properties, Inc.; McSwain and Associates, BNUMBER: B-261443.3; B-261443.4 DATE: May 20, 1996 TITLE: Shel-Ken Properties, Inc.; McSwain and Associates, Inc.--Requests for Reconsideration ********************************************************************** 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.