Matter of: Monterey Advanced Imaging Center File: B-253152.3 Date: November 19, 1993

Matter of: Monterey Advanced Imaging Center File: B-253152.3 Date: November 19, 1993

PROCUREMENT Sealed Bidding Invitations for bids Competition rights Contractors Exclusion Where protester did not submit a bid because it did not receive solicitation amendment containing revised bid opening date, and nonreceipt was not due to any agency attempt to deliberately exclude the protester, protester was not prejudiced by allegedly improper award to the only bidder; General Accounting Office therefore has no basis to consider merits of protest allegations.

Attorneys

DECISION

We dismiss the protest.

Monterey was the incumbent contractor for MRI services at Fort Ord. In February 1993, Monterey learned that the agency had issued a new solicitation for the services, and requested a copy. Monterey later received amendment No. 0002 to the IFB which extended the bid opening date indefinitely. On March 30, the agency issued amendment No. 0003, which established a new bid opening date of April 12. Monterey never received the amendment, and therefore did not submit a bid. When Monterey learned that it had missed the bid opening, it filed a protest in our Office alleging that the agency had deliberately excluded it from the competition. We denied the protest, concluding that the record did not show that the agency acted deliberately to preclude Monterey from competing, or otherwise violated applicable regulations governing the distribution of amendments. Monterey Advanced Imaging Ctr., B-253152, Aug. 24, 1993, 93-2 CPD Para. 118.

Monterey now protests the proposed award to Alliance, the only firm that submitted a bid, alleging that the company's MRI facility does not meet the requirement for a fixed (as opposed to mobile) facility. Monterey asks that we recommend that the agency cancel the IFB and resolicit the requirement.

Monterey's protest essentially amounts to an allegation that the agency improperly waived an IFB requirement for the awardee. In reviewing such allegations, we examine whether the protester was prejudiced by the alleged waiver; that is, whether the protester would have been in a position to receive the award absent the waiver. See Propper Mfg. Co., Inc., B-245366, Dec. 30, 1991, 92-1 CPD Para. 14. We will sustain the protest only if there is a reasonable possibility that the protester would have been the successful offeror--for example, by offering a lower-cost item--if it had known that the agency would not enforce the stated requirements. See, e.g., Goodyear Tire & Rubber Co., 72 Comp. Gen. 28 (1992), 92-2 CPD Para. 315; see generally Logitek, Inc.--Recon., B-238773.2; B-238773.3, Nov. 19, 1990, 90-2 CPD Para. 401.[1] Under this standard, in order to sustain Monterey's protest and recommend resolicitation of the requirement, we would have to conclude--assuming the agency in fact waived the fixed facility requirement for Alliance--that Monterey would have acted differently had it known that the agency would not enforce the requirement, and that it might then have been in a position to win the award.

We cannot make those conclusions here. Since Monterey did not submit a bid--through no fault of the agency, as our earlier decision held--there is no possibility that Monterey would have acted differently, or been eligible for the award, had it known the agency would waive the fixed facility requirement as alleged. Absent any such prejudice to Monterey, we would have no basis to sustain the protest even if the record established that Alliance's bid was nonresponsive to the requirement. We therefore will not consider the matter further.

The protest is dismissed.

1. We have also sustained protests against alleged waiver or relaxation of solicitation requirements where the record shows that the waiver may have precluded prospective offerors from competing for the requirement. See, e.g., Goodyear Tire & Rubber Co., supra; ManTech Advanced Sys. Int'l, Inc., B-240136, Oct. 26, 1990, 90-2 CPD Para. 336. Nothing in the record suggests that was the case here.