[Protest of GPO Purchase Order for CD-ROM Mastering and Replication]
Highlights
A firm protested a Government Printing Office (GPO) purchase order for CD-ROM mastering and replication, contending that GPO should have rejected the awardee's bid as nonresponsive, since the: (1) bid was missing required information; and (2) the bid was not signed by the proper authority. GAO held that: (1) GPO reasonably accepted the awardee's bid as responsive despite missing information on copies of the bid, since the original bid was properly completed; and (2) the awardee properly submitted evidence of the signing agent's authority after bid opening. Accordingly, the protest was denied.
B-186164, MAY 9, 1977
1. ALTHOUGH PROTEST IS FILED WITHIN 10 DAYS OF AGENCY DEBRIEFING, WHERE GROUNDS FOR PROTEST WERE KNOWN MORE THAN A MONTH PRIOR TO DEBRIEFING, PROTEST FILED MORE THAN 10 DAYS AFTER THOSE GROUNDS BECAME KNOWN IS UNTIMELY. 2. WHILE RECORD INDICATES THAT OFFEROR WITH BENCHMARK DEFICIENCY WAS PERMITTED TO SUBMIT BEST AND FINAL OFFER AND PROTESTER, WHOSE BENCHMARK WAS ALSO DEFICIENT, WAS EXCLUDED FROM FURTHER NEGOTIATIONS, FACTS ARE NOT PREJUDICIAL TO PROTESTER AS AWARD WAS MADE TO THIRD OFFEROR WHO SUCCESSFULLY PASSED BENCHMARK.
COMPU-SERV:
ON NOVEMBER 18, 1975, THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) ISSUED REQUEST FOR PROPOSALS (RFP) NO. 25-75-HEW-OS FOR COMPUTER SERVICES FOR AN AUTOMATED CORRESPONDENCE CONTROL SYSTEM.
ON THE CLOSING DATE FOR RECEIPT OF PROPOSALS, FEBRUARY 11, 1976, FIVE PROPOSALS WERE RECEIVED BY HEW. FOLLOWING AN INITIAL EVALUATION IN WHICH ALL PROPOSALS WERE FOUND TECHNICALLY ACCEPTABLE, THE FIVE OFFERORS WERE SUBJECTED TO A BENCHMARK DEMONSTRATION OUTLINED IN THE RFP. AFTER EVALUATION OF THE DATA GENERATED BY THE BENCHMARKS, AWARD OF THE CONTRACT WAS MADE TO ON-LINE SYSTEMS.
THIS AWARD HAS BEEN PROTESTED TO OUR OFFICE BY COMPU-SERV ON THE BASIS THAT ALL OFFERORS WERE NOT TREATED EQUALLY DURING THE CONDUCT OF THE BENCHMARK.
BEFORE REACHING THE MERITS OF THE PROTEST, SINCE HEW HAS RAISED THE ISSUE OF THE TIMELINESS OF COMPU-SERV'S PROTEST, THAT ISSUE MUST BE DISCUSSED.
HEW'S ALLEGATION THAT THE PROTEST IS UNTIMELY IS BASED ON THE FACT THAT FOLLOWING THE NOTICE OF WARD TO ON-LINE SYSTEMS, COMPU-SERV REQUESTED A DEBRIEFING BY THE CONTRACTING OFFICER. BY LETTER OF JUNE 22, 1976, THE CONTRACTING OFFICER ADVISED COMPU-SERV OF THE REASONS WHY ITS PROPOSAL WAS NOT SUCCESSFUL AND THAT DUE TO THE WORKLOAD IN THE OFFICE, AN ORAL DEBRIEFING COULD NOT BE SCHEDULED. ON JULY 9, 1976, COMPU-SERV AGAIN REQUESTED AN ORAL DEBRIEFING TO DISCUSS THE POINTS RAISED IN THE JUNE 22, 1976, LETTER. AN ORAL DEBRIEFING WAS HELD ON JULY 29, 1976, AND ON AUGUST 11, 1976, COMPU-SERV PROTESTED THE AWARD TO OUR OFFICE. BASED ON THESE FACTS, HEW CONCLUDES THAT AS COMPU-SERV KNEW THE REASONS FOR ITS PROTEST UPON RECEIPT OF THE JUNE 22, 1976, LETTER AND SINCE IT DID NOT PROTEST TO THE CONTRACTING OFFICER WITHIN 5 WORKING DAYS THEREOF, AS REQUIRED BY HEW PROCUREMENT REGULATIONS, THE PROTEST SUBSEQUENTLY SUBMITTED TO OUR OFFICE IS UNTIMELY.
FROM OUR REVIEW OF THE RECORD, IT APPEARS THAT COMPU-SERV KNEW OF THE BASES OF ITS PROTEST, WITH THE EXCEPTION OF ONE WHICH WILL BE DISCUSSED INFRA, UPON RECEIPT OF THE JUNE 22, 1976, LETTER. THEREFORE, WE FIND THAT PORTION OF THE PROTEST BASED ON INFORMATION CONTAINED IN THE JUNE 22 LETTER TO BE UNTIMELY. WE CONTINUE TO BELIEVE THAT A PROTESTER MAY WITHHOLD FILING A PROTEST WITH THIS OFFICE PENDING AN IMMINENT DEBRIEFING TO LEARN WHY ITS PROPOSAL WAS NOT FAVORABLY CONSIDERED FOR AWARD. SEE LAMBDA CORPORATION, 54 COMP.GEN. 468(1974), 74-2 CPD 312. HOWEVER, WHERE A WOULD-BE PROTESTER IS SUFFICIENTLY APPRISED OF A BASIS FOR PROTEST PRIOR TO SUCH A DEBRIEFING, IT WOULD BE INAPPROPRIATE TO PERMIT MORE THAN A MODEST DELAY IN FILING THE PROTEST PENDING THE DEBRIEFING. POWER CONVERSION, INC., B-186719, SEPTEMBER 20, 1976, 76-2 CPD 256.
THE ONE TIMELY GROUND OF COMPU-SERV'S PROTEST IS THAT ANOTHER FIRM'S BENCHMARK RESULTS, WHILE FOUND TO BE ACCEPTABLE BY HEW, CONTAINED MISSING DATA SIMILAR TO THAT WHICH RESULTED IN COMPU-SERV'S BENCHMARK BEING CONSIDERED UNACCEPTABLE. THE FIRM, TYMSHARE, WAS THE OFFEROR OTHER THAN ON-LINE SYSTEMS WHICH PASSED THE BENCHMARK AND SUBMITTED A BEST AND FINAL OFFER.
HEW HAS RESPONDED THAT DURING THE EVALUATION OF TYMSHARE'S BENCHMARK DATA, NO DATA WAS FOUND TO BE MISSING. HOWEVER, AFTER THE SUBMISSION OF BEST AND FINAL OFFERS AND THE AWARD TO ON-LINE SYSTEMS, HEW, IN PREPARING FOR COMPU-SERV'S DEBRIEFING, DID DISCOVER THAT THERE WAS ONE ITEM OF INFORMATION MISSING FROM TYMSHARE'S BENCHMARK. HEW CONTENDS THE MISSING INFORMATION WAS TRIVIAL AND PROBABLY CAUSED BY OPERATOR ERROR, RATHER THAN A FAULTY PROGRAM, AND NOT OF THE SAME TYPE OR NUMBER WHICH WAS MISSING IN COMPU-SERV'S BENCHMARK. THEREFORE, THIS INFORMATION WAS NOT KNOWN BY EITHER PARTY UNTIL AFTER THE JUNE 22 LETTER.
HEW STATES IT INTENDED NOT TO ALLOW ANY FIRM TO HAVE MISSING DATA AND STILL BE CONSIDERED ACCEPTABLE FOR BEST AND FINAL OFFERS. FROM THE RECORD BEFORE OUR OFFICE, IT APPEARS THAT TYMSHARE WAS IMPROPERLY PERMITTED TO SUBMIT A BEST AND FINAL OFFER, BUT WE DO NOT FIND THIS FAILURE TO DISCOVER THE ONE ITEM OF MISSING DATA IN TYMSHARE'S BENCHMARK UNTIL AFTER THE AWARD TO BE PREJUDICIAL TO COMPU-SERV. IF THE MISSING DATA HAD BEEN DISCOVERED EARLIER, IT WOULD MERELY HAVE PRECLUDED TYMSHARE FROM FURTHER DISCUSSIONS, NOT ALLOWED COMPU-SERV TO BE FOUND ACCEPTABLE. MOREOVER, TYMSHARE WAS NOT THE SUCCESSFUL OFFEROR. THEREFORE, WE FIND NO PREJUDICE TO THE OTHER OFFERORS OR AN IMPROPRIETY IN THE AWARD TO ON-LINE SYSTEMS RESULTING FROM THIS OVERSIGHT.
ACCORDINGLY, THE PROTEST IS DENIED.