Southeast Technical Services--Entitlement to Costs

B-272374.2 Mar 11, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST General Accounting Office will not recommend payment of the costs of filing and pursuing a protest where the agency did not unduly delay taking corrective action once the issue of whether it had properly considered the use of simplified acquisition procedures had been put squarely in dispute. Since the government estimate was less than $25. The protester submitted a bid which did not include the required bid bond and was therefore nonresponsive. The FAR was being revised to conform to the provisions of the Federal Acquisition Streamlining Act of 1994 (FASA). Was issued to implement the simplified acquisition procedures called for by FASA. The government estimate was under $50. The revised Part 13 noted that the Miller Act payment and performance bonds were no longer required for purchases below the simplified acquisition threshold. View Decision Matter of: Southeast Technical Services--Entitlement to Costs File: B-272374.2 Date: March 11, 1997 DIGEST Attorneys DECISION Southeast Technical Services requests that our Office recommend that the Department of Veterans Affairs (VA) pay it the reasonable costs of filing and pursuing its protest. We deny the request. On May 8, 1995, the agency issued a solicitation for a firm, fixed-price contract to provide labor, equipment, and material necessary to remove and dispose of existing soil and install new ethylene propylene diene monomer waterproofing material, a concrete paver and pedestal system, a new wall, and an athletic turf system in courtyard 2G of building 110 at the VA medical center in Augusta, Georgia. Since the government estimate was less than $25,000, the agency issued the solicitation as a set-aside for emerging small businesses. See Federal Acquisition Regulation (FAR) Subpart 19.10. The agency received two offers, both of which exceeded $25,000. The agency dissolved the set-aside and revised its estimate. On August 3, the agency issued a new solicitation, adding a bonding requirement, in accordance with the then-current FAR implementation of the Miller Act, 40 U.S.C. Sec. 270a (1994), which essentially required a contractor to provide bid, performance, and payment bonds for any construction requirement in excess of $25,000. See FAR Sec. 28.102-1 (FAC 90-32). The agency received no responses. On February 28, 1996, the agency issued a new solicitation, again including the bond requirement, with a higher government estimate-- $35,000--and received four bids. The protester submitted a bid which did not include the required bid bond and was therefore nonresponsive. The other bids substantially exceeded the government estimate. The agency canceled the solicitation because it did not consider the bid prices reasonable. On May 24, the agency reissued the solicitation, with the bond requirement, setting a date of June 24 for bid opening. Six hours before the scheduled bid opening time, Southeast Technical Services filed a protest with this Office, essentially objecting to the bonding requirement. During the time of this procurement, the FAR was being revised to conform to the provisions of the Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. No. 103-355, 108 Stat. 3243, 3342 (1994). On July 3, 1995, prior to the issuance of the second solicitation here, Federal Acquisition Circular (FAC) 90-29, an interim rule revising Part 13 of the FAR, was issued to implement the simplified acquisition procedures called for by FASA. The revised, interim rules mandated the use of simplified acquisition procedures "to the maximum extent practicable" where, as here, the government estimate was under $50,000. Further, the revised Part 13 noted that the Miller Act payment and performance bonds were no longer required for purchases below the simplified acquisition threshold. However, FAR Part 28 continued to require such bonds until June 20, 1996, 4 days prior to the fourth and final bid opening here, and the filing of the protest. See FAC 90-39. Final rules for Part 13 were published on July 26, 1996, during the pendency of the protest; the interim rules for Part 28 are still in effect.) In its protest, Southeast raised a number of contentions, most of which were without merit or not for consideration by our Office. Southeast complained of discrimination, arguing generally that the bonding requirement discriminated against minority and nonminority contractors, and that it was discriminatory to require a bond of bidders not allowed to compete under a prior version of the solicitation that did not require a bond. Southeast argued that the initial emerging small business set-aside had discriminated against nonlocal firms (presumably only Georgia firms submitted proposals for the initial solicitation.).