B-228568.2, Nov 30, 1987, 87-2 CPD 528
Highlights
A protest to the General Accounting Office (GAO) alleging an impropriety that was apparent on the face of an invitation for bids that is not filed until after bid opening is untimely. Submission and acceptance of a below-cost bid are not legally objectionable. ACC alleged that the specification package provided with the IFB was not adequate for accurate manufacturing by a contractor who had not previously built the product requested. Our Bid Protest Regulations provide that protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening shall be filed prior to bid opening. 4 C.F.R. The purpose behind this requirement is to allow the contracting agency or our Office to decide a protest issue while it is most practicable to take effective action if warranted.
B-228568.2, Nov 30, 1987, 87-2 CPD 528
PROCUREMENT - Bid Protests - GAO Procedures - Protest Timeliness - Apparent Solicitation Improprieties DIGEST: 1. A protest to the General Accounting Office (GAO) alleging an impropriety that was apparent on the face of an invitation for bids that is not filed until after bid opening is untimely. PROCUREMENT - Contractor qualification - Responsibility - Contracting Officer Findings - Affirmative Determination - GAO Review PROCUREMENT - Sealed Bidding - Below-Cost Bids - Contract Awards - Propriety 2. Submission and acceptance of a below-cost bid are not legally objectionable. Whether a bidder can meet contract requirements in light of its low bid concerns the contract- ing agency's affirmative responsibility determination which GAO generally does not review.
Applied controls Co., Inc.-- Request for Reconsideration:
Applied Controls Company, Inc. (ACC) requests reconsideration of our dismissal of its protest concerning invitation for bids (IFB) No. N00104- 87-B-0105 issued by the Navy for power supplies. We affirm the dismissal of the protest as untimely.
In its protest, ACC alleged that the specification package provided with the IFB was not adequate for accurate manufacturing by a contractor who had not previously built the product requested. While bid opening took place on September 16, 1987, ACC did not file its protest with our Office until October 20.
ACC correctly characterizes its protest as one based on "solicitation defects." Our Bid Protest Regulations provide that protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening shall be filed prior to bid opening. 4 C.F.R. Sec. 21.2(a)(1) (1987). The purpose behind this requirement is to allow the contracting agency or our Office to decide a protest issue while it is most practicable to take effective action if warranted. For example, a protest like ACC's challenging allegedly defective specifications, if filed before bid opening, would allow the IFB to be amended without undue disruption to the procurement, if the protest were found to have merit. Ratcliffe Corp. -- Request for Reconsideration, B-220060.2, Oct. 8, 1985, 85-2 CPD Para. 395. Here, ACC defeated that purpose by not filing its protest until October 20, well after bid opening on September 16. Consequently, the protest properly was dismissed as untimely. Portec-- Request for Reconsideration, B-224537.2, Oct. 27, 1986, 86-2 CPD Para. 480.
In its request for reconsideration, ACC also maintains that the low bidder under the IFB submitted a below-cost bid. There is no legal basis on which to object to the submission or acceptance of a below cost bid. Hercules Painting, B-223647, July 31, 1986, 86-2 CPD Para. 131. To the extent that ACC challenges the low bidder's ability to perform at its bid price, the protest concerns the contracting agency's affirmative responsibility determination, a matter which we will review only in limited circumstances not alleged or evident here. 4 C.F.R. Sec. 21.3(f)(5).
Our prior dismissal is affirmed.