Navajo Nation Oil & Gas Company

B-270723 Apr 15, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest that the Defense Fuel Supply Center improperly excluded from a solicitation issued in fiscal year 1996 a provision giving small disadvantaged preference to Indian Tribal corporations furnishing fuel from small business manufacturers/refiners is denied. Where the provision was contained in the Department of Defense's (DOD) appropriations act for fiscal year 1995. Was non-permanent in nature. No similar provision is contained in the DOD Appropriations Act. NNOGC contends that a provision of the RFP pertaining to the eligibility of small disadvantaged business (SDB) concerns for an evaluation preference is inconsistent with section 8012 of the Department of Defense (DOD) Appropriations Act. View Decision Matter of: Navajo Nation Oil & Gas Company File: B-270723 Date: April 15, 1996 Protest that the Defense Fuel Supply Center improperly excluded from a solicitation issued in fiscal year 1996 a provision giving small disadvantaged preference to Indian Tribal corporations furnishing fuel from small business manufacturers/refiners is denied, where the provision was contained in the Department of Defense's (DOD) appropriations act for fiscal year 1995, DOD Appropriations Act, 1995, Sec. 8012, Pub. L. No. 103-355, 108 Stat. 2599, 2619 (1994), was non-permanent in nature, and no similar provision is contained in the DOD Appropriations Act, 1996, Pub. L. No. 104-61, 109 Stat. 636 (1995). Attorneys DECISION Navajo Nation Oil & Gas Company (NNOGC) protests the terms of request for proposals (RFP) No. SPO600-96-R-0030 (RFP-0030), issued by the Defense Fuel Supply Center (DFSC), Defense Logistics Agency, for fuel. NNOGC contends that a provision of the RFP pertaining to the eligibility of small disadvantaged business (SDB) concerns for an evaluation preference is inconsistent with section 8012 of the Department of Defense (DOD) Appropriations Act, 1995, Pub. L. No. 103-355, 108 Stat. 2599, 2619 (1994). We deny the protest. On March 31, 1995, DFSC issued RFP No. SPO600-95-R-0161 (RFP-0161), which provided for multiple awards of fixed-price indefinite quantity contracts with economic price adjustments for the supply of approximately 1.6 billion gallons of fuel for nearly 200 using activities. [1] The solicitation contained an evaluation preference for SDB concerns applicable to certain items set forth in the solicitation. The RFP also included a clause that set forth certain special standards of responsibility applicable to non-refiner/non-manufacturer offerors. NNOGC, an Indian Tribal Corporation owned and controlled by the Navajo Nation (a federally recognized Native American tribe), filed a protest with our Office on May 8, 1995, contending, among other things, that the agency had no reasonable basis for any of this clause's special standards of responsibility, and that the clause was thus unduly restrictive of competition. In Navajo Nation Oil & Gas Co., B-261329, Sept. 14, 1995, 95-2 CPD para. 133, we sustained NNOGC's protest because the record provided no basis to conclude that the protested clause was reasonably related to the agency's minimum needs. We recommended that the agency determine from the protester which of the line items the protester was interested in competing for under an amended solicitation, refrain from ordering under the existing contracts for these line items any more fuel than was required, resolicit for these line items without the protested clause and in a manner consistent with our decision, and terminate the contract(s) if the current contractor(s) is/are not the successful offeror(s) under the resolicitation. [2] In response to our recommendation, DFSC contacted NNOGC to determine which line items NNOGC was interested in and, on November 24, issued RFP-0030 (which did not include the clause that was the subject of the prior protest) for a total fuel requirement of more than 165 million gallons for 12 using activities. NNOGC protests the inclusion of a provision in RFP-0030, which states that "[SDB] concerns who are not manufacturers of the product offered are reminded that their source refinery must be a [SDB] concern in order for their offer to be eligible" for an SDB concern evaluation preference.