B-242858.3, Aug 29, 1991

B-242858.3, Aug 29, 1991

DIGEST

Attorneys

The Montgomery Companies:

The Montgomery Companies protest the lease awarded to the Paragon Group, Inc. under a solicitation for offers (SFO) issued by the United States Department of Agriculture (USDA) for 37,800 to 39,800 square feet of net usable office space in Lexington, Kentucky. /1/

The protest is dismissed.

Montgomery argues that after the contract was awarded USDA officials discovered that Paragon had miscalculated the space it proposed and, as a result, proposed less space than required by the solicitation. Montgomery bases this allegation on affidavits submitted by its president and its maintenance manager. These individuals explain that they were told by the regional director of USDA's Agricultural Marketing Service that Paragon failed to consider in its calculation of the proposed space certain corridors, entrances and exterior hallways required to be included by the solicitation and, as a result, its proposed space did not meet the minimum solicitation requirement. Montgomery argues that the agency does not understand what the SFO required to be deducted from gross space to determine net usable space and that the agency has not explained how Paragon's proposed space was evaluated.

To the extent that Montgomery argues that Paragon's offer proposed less space than required by the SFO, this contention is untimely. In this respect, under our Bid Protest Regulations, protests not based on improprieties in a solicitation must be filed not later than 10 working days after the protester knew or should have known the basis for protest, whichever is earlier. 4 C.F.R. Sec. 21.2(a)(2) (1991).

In one of our earlier decisions, The Montgomery Companies, B-242858, June 10, 1991, 91-1 CPD Para. 554, we dismissed as untimely Montgomery's contention that the lease with Paragon was for greater square footage than required by the SFO since that allegation, although based on documents received by March 14 at the latest, was not raised until April 19. Montgomery has not requested reconsideration of that decision or otherwise disputed our conclusion that on March 14, it had in its possession documents, including Paragon's proposal, which indicated the net square footage proposed by Paragon. Under the circumstances, we do not see how the current protest, which was filed on May 16, and which alleges that the space proposed by Paragon was too small, can be timely when the earlier allegation that the space was too large was untimely when filed on April 19. The fact that someone alleges after award that the space delivered is too small does not, under these circumstances, reopen the issue of whether the offer submitted was compliant. In any event, Paragon's offer proposed 37,940 square feet of net usable space, which met the requirement of the SFO.

To the extent that Montgomery argues that the actual space in the awardee's building, which is the subject of the awarded lease, does not consist of 37,800 to 39,800 net square feet as the solicitation required, this is an issue that we do not review. The acceptance of Paragon's offer obligated the firm to provide office space in its building in accordance with the SFO requirements. Whether the offeror in fact complies with this obligation is a matter of contract administration which we do not review. 56 Fed.Reg. 3,759 (1991) (to be codified at 4 C.F.R. Sec. 21.3(m)(1)); Trados GmbH-Second Recon., B-237919.3, Jan. 12, 1990, 90-1 CPD Para. 53.

We dismiss the protest.

/1/ Montgomery filed two previous protests of the award to Paragon. denied in part and dismissed in part one of those protests, The Montgomery Companies, B-242858, June 10, 1991, 91-1 CPD Para. 554, and we dismissed the other, The Montgomery Companies, B-242858.2, Apr. 25, 1991, 91-1 CPD 2 410.