B-190248, NOV 30, 1977
Highlights
PROTEST AGAINST ALLEGED IMPROPRIETIES IN SOLICITATION NOT FILED PRIOR TO BID OPENING DATE IS UNTIMELY. 2. CONTRACT COMPLIANCE IS MATTER OF CONTRACT ADMINISTRATION AND NOT COGNIZABLE UNDER GAO BID PROTEST PROCEDURES. BID OPENING WAS ON SEPTEMBER 15. AWARD WAS MADE TO C.F. INGERSOLL CONTENDS THAT THE PERFORMANCE REQUIRED OF THE AIR DRYING EQUIPMENT IS NOT OBTAINABLE WITH EQUIPMENT AS DESCRIBED IN THE SPECIFICATIONS. INGERSOLL ARGUES THAT THE SPECIFICATIONS ARE EXCLUSIONARY SINCE THEY ONLY DESCRIBE ONE MANUFACTURER'S EQUIPMENT. INGERSOLL NOTES THAT THERE IS OTHER EQUIPMENT AVAILABLE WHICH CAN SATISFY THE PERFORMANCE REQUIREMENTS. REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT.
B-190248, NOV 30, 1977
1. PROTEST AGAINST ALLEGED IMPROPRIETIES IN SOLICITATION NOT FILED PRIOR TO BID OPENING DATE IS UNTIMELY. 2. CONTRACT COMPLIANCE IS MATTER OF CONTRACT ADMINISTRATION AND NOT COGNIZABLE UNDER GAO BID PROTEST PROCEDURES.
INGERSOLL-RAND COMPANY:
INGERSOLL-RAND COMPANY (INGERSOLL) HAS PROTESTED AGAINST THE MAKING OF ANY AWARD UNDER NAVAL FACILITIES ENGINEERING COMMAND (NAVY) INVITATION FOR BIDS (IFB) NO. N62467-77-B-0465, FOR THE INSTALLATION OF COMPRESSED AIR DRYING EQUIPMENT. BID OPENING WAS ON SEPTEMBER 15, 1977, AND ON SEPTEMBER 22, 1977, AWARD WAS MADE TO C.F. MCCRARY COMPANY.
INGERSOLL CONTENDS THAT THE PERFORMANCE REQUIRED OF THE AIR DRYING EQUIPMENT IS NOT OBTAINABLE WITH EQUIPMENT AS DESCRIBED IN THE SPECIFICATIONS. ADDITIONALLY, INGERSOLL ARGUES THAT THE SPECIFICATIONS ARE EXCLUSIONARY SINCE THEY ONLY DESCRIBE ONE MANUFACTURER'S EQUIPMENT. INGERSOLL NOTES THAT THERE IS OTHER EQUIPMENT AVAILABLE WHICH CAN SATISFY THE PERFORMANCE REQUIREMENTS, BUT WOULD NOT COMPLY WITH THE IFB SPECIFICATIONS.
OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.2(B) (1), REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT, AS HERE, PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING. INGERSOLL'S PROTEST WAS RECEIVED BY OUR OFFICE ON SEPTEMBER 28, 1977, WHICH WAS AFTER BID OPENING. ALSO, IT DOES NOT APPEAR THAT INGERSOLL RAISED THIS ISSUE WITH NAVY PRIOR TO BID OPENING.
CONSEQUENTLY, THE PROTEST IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS.
FURTHER, INGERSOLL URGES OUR OFFICE TO INSURE THAT THE CONTRACTOR COMPLIES WITH THE CONTRACT AS AWARDED OR, IN THE ALTERNATIVE, THAT THE CONTRACT BE CANCELED AND THE REQUIREMENT BE REBID. CONTRACT COMPLIANCE IS A MATTER OF CONTRACT ADMINISTRATION WITHIN THE COGNIZANCE OF THE PROCURING ACTIVITY AND NOT FOR CONSIDERATION UNDER OUR BID PROTEST PROCEDURES. ROBERT BURGER ASSOCIATES, INC., B-188450, JUNE 1, 1977, 77-1 CPD 378.