B-188768, AUGUST 12, 1977

B-188768, AUGUST 12, 1977

WHERE AGENCY CONDUCTED TWO PREAWARD SURVEYS OF BIDDER'S FACILITIES, AND CONDUCTED LENGTHY DISCUSSION WITH PROTESTER CONCERNING DOUBTS AS TO CAPACITY TO PERFORM, PROTEST CONCERNING REJECTION OF PROTESTER'S LOW BID FILED WITH GAO MORE THAN 10 DAYS AFTER RECEIPT OF AGENCY'S WRITTEN NOTICE OF AWARD, TO SECOND LOW BIDDER IS UNTIMELY AND NOT FOR CONSIDERATION ON MERITS.

LION RECORDING SERVICES, INC.:

LION RECORDING SERVICES, INC. (LION), PROTESTS THE AWARD OF CONTRACT NO. IA-18257-22 BY THE UNITED STATES INFORMATION AGENCY (USIA) TO RODEL AUDIO SERVICES (RODEL) FOR SOUND RECORDING,TRANSFER AND MIXING SERVICES AND MATERIALS FOR THE PERIOD MARCH 11, 1977, THROUGH MARCH 10, 1978, RESULTING FROM INVITATION FOR BIDS (IFB) NO. 29-22-7.

USIA ISSUED THE IFB ON JANUARY 4, 1977. BID OPENING WAS HELD ON FEBRUARY 3, 1977; THREE BIDS WERE RECEIVED, AND LION WAS THE APPARENT LOW BIDDER. ON FEBRUARY 22, 1977, USIA PERSONNEL CONDUCTED A PREAWARD OF LION'S FACILITIES, PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1- 1.1205-4 (1964 ED.AMEND. 95). THE SURVEY TEAM FOUND THE PROTESTER'S PREMISES DEFICIENT WITH REGARD TO THE ISOLATED, SOUNDPROOF CONTROL ROOM FOR FILM MIXING AND THE NUMBER OF 16 M.M. DUBBERS REQUIRED BY THE IFB SPECIFICATIONS, AND SUGGESTED THAT THE BASIS OF THESE DEFICIENCIES THAT LION COULD NOT ACCOMMODATE SOME OF USIA'S FILM MIX REQUIREMENTS. WHEN USIA'S CONTRACTING OFFICER TELEPHONICALLY INFORMED THE PROTESTER OF THE SURVEY FINDINGS ON THE FOLLOWING DAY, LION DENIED THE DEFICIENCIES. SECOND SURVEY WAS, THEREFORE, CONDUCTED ON FEBRUARY 24, 1977, WHICH THE AGENCY ASSERTS CONFIRMED THE DEFICIENCIES PREVIOUSLY NOTED. AS A RESULT, THE SECOND SURVEY REPORT CONCLUDED THAT AWARD TO LION WOULD NOT BE IN USIA'S BEST INTEREST. THE CONTRACT WAS AWARDED TO RODEL, THE SECOND LOW BIDDER, ON MARCH 4, 1977. THE PROTESTER WAS ADVISED BY LETTER OF THE SAME DATE, AS FOLLOWS:

"THANK YOU YOU FOR SUBMITTING A BID IN RESPONSE TO THE REFERENCED SOLICITATION. WE REGRET THAT WE CANNOT BRING GOOD NEWS OF A CONTRACT AWARD TO EVERY FIRM THAT RESPONDS. FOR THIS SOLICITATION, THE CONTRACT WAS AWARDED TO RODEL AUDIO SERVICES.

YOUR INTEREST IN THE AGENCY'S REQUIREMENT IS GREATLY APPRECIATED."

LION RECEIVED THE AGENCY'S NOTICE OF AWARD ON MARCH 5, 1977. WITHOUT FURTHER CONTACTING USIA, LION, BY LETTER OF MARCH 9, 1977, REQUESTED AN EXPLANATION FOR THE REJECTION OF THE FIRM'S BID FROM ITS CONGRESSIONAL REPRESENTATIVE. USIA REPLIED TO THE CONGRESSMAN'S INQUIRY BY LETTER OF MARCH 29, 1977, STATING THAT AWARD WAS NOT MADE TO LION ON THE BASIS OF THE FINDINGS OF THE SECOND PREAWARD SURVEY. A COPY OF USIA'S RESPONSE WAS FORWARDED TO LION AND WAS RECEIVED BY THE PROTESTER ON APRIL 4, 1977.

LION FILED ITS PROTEST WITH OUR OFFICE ON APRIL 5, 1977. COUNSEL FOR THE PROTESTER CONTENDS THAT LION'S FACILITIES MEET THE REQUIREMENTS SPECIFIED IN THE IFB, THAT AS THE LOW, RESPONSIVE, RESPONSIBLE BIDDER AWARD SHOULD HAVE BEEM MADE TO LION, THAT THE CONTRACTING OFFICER'S ACTION IN FAILING TO MAKE AWARD TO LION WAS ARBITRARY AND CAPRICIOUS, AND THAT AWARD TO A HIGHER-PRICED BIDDER WAS VIOLATIVE OF FPR SEC. 1 2.407-1(A) (1964 ED.AMEND. 139).

"USIA ASSERTS THAT THE PROTEST IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS, CITING OUR BID PROTEST PROCEDURES, 4 C.F.R.,PART 20 (1976 ED.), SPECIFICALLY SUBSECTION 20.2(B)(2), WHICH REQUIRES THAT:

" * * * BID PROTESTS SHALL BE FILED NOT LATER THAN 10 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER."

THE AGENCY CONTENDS THAT AS A RESULT OF THE FEBRUARY 23, 1977, TELEPHONE CALL TO MR. LION CONCERNING THE DEFICIENCIES OBSERVED DURING THE FIRST PREAWARD SURVEY AND AS A RESULT OF THE CONVERSATION AGENCY PERSONNEL HAD WITH MR. LION DURING THE SECOND SURVEY LION KNEW, OR SHOULD HAVE KNOWN, THE BASIS FOR THE PROTEST WHEN THE FIRM RECEIVED THE AGENCY'S NOTICE OF AWARD TO ANOTHER FIRM ON MARCH 5, 1977.

COUNSEL FOR THE PROTESTER, HOWEVER, ASSERTS THAT BECAUSE MR. LION BELIEVED THAT HE HAD ADEQUATELY ANSWERED THE USIA SURVEY TEAM'S INQUIRIES DURING THE SECOND PREAWARD SURVEY,THE PROTESTER HAD NO REASON TO ASSUME UPON NOTICE OF AWARD THAT THE DEFICIENCIES PREVIOUSLY MENTIONED WERE THE REASONS FOR REJECTION OF THE BID.

WHILE LION WAS NOT ADVISED IN THE NOTICE OF AWARD THAT AWARD WAS NOT MADE TO THE FIRM BECAUSE OF THE PREAWARD SURVEY FINDINGS, THE FACT THAT USIA SURVEYED THE PREMISES TWICE WAS A CLEAR INDICATION TO LION THAT THE AGENCY HAD DOUBTS AS TO LION'S CAPACITY TO PERFORM THE CONTRACT. FURTHER, IT IS REPORTED THAT DURING THE SECOND SURVEY THERE "TRANSPIRED A LENGTHY DISCUSSION OF THE FAILURE OF LION TO HAVE A SEPARATE BOOTH FOR VOICE RECORDING AND THE SIX-DUBBER CAPABILITY." WHILE MR. LION REPORTEDLY THOUGHT HE HAD SATISFIED THE DOUBTS CONCERNING CAPACITY, WE BELIEVE THAT UPON RECEIVING NOTICE OF AWARD TO THE SECOND LOW BIDDER MR. LION REASONABLY KNEW OR SHOULD HAVE KNOWN THAT THE FIRM DID NOT RECEIVE THE AWARD BECAUSE THE DOUBTS CONCERNING CAPACITY HAD NOT IN FACT BEEN SATISFIED.

SINCE LION'S PROTEST WAS FILED WITH OUR OFFICE MORE THAN 10 WORKING DAYS AFTER THE BASIS FOR THE PROTEST WAS, OR SHOULD HAVE BEEN, KNOWN, THE PROTEST IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS.

WE NOTE, HOWEVER, THAT ALTHOUGH LION IS APPARENTLY A SMALL BUSINESS CONCERN, USIA DID NOT COMPLY WITH REQUIREMENT OF FPR SEC. 1-1.708-2(A) (1964 ED.AMEND 71), WHICH REQUIRES REFERRAL OF NONRESPONSIBILITY DETERMINATIONS BASED UPON LACK OF CAPACITY TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION. WE ARE CALLING THIS MATTER TO THE ATTENTION OF THE DIRECTOR OF USIA TO PREVENT A RECURRENCE IN FUTURE PROCUREMENTS.