B-195077, JUL 13, 1979

B-195077, JUL 13, 1979

DIGEST: 1. PROTEST REGARDING NEGOTIATION DATE, FILED MORE THAN 10 DAYS AFTER DATE WAS "UNILATERALLY IMPOSED" BY PROCURING AGENCY, IS UNTIMELY. 2. PROTEST ALLEGING THAT, DURING NEGOTIATIONS, PROCURING AGENCY PLACED "INORDINATE RELIANCE" ON RESPONSES OF ONE INDIVIDUAL IS SUMMARILY DENIED BECAUSE INDIVIDUAL IN QUESTION WAS AUTHORIZED TO NEGOTIATE FOR OFFEROR AND, AT TIME OF EVALUATION, WAS PROPOSED PROJECT DIRECTOR.

THE LOUISIANA CENTER FOR THE PUBLIC INTEREST:

THE LOUISIANA CENTER FOR THE PUBLIC INTEREST (LCPI) PROTESTS THE CANCELLATION OF A REQUEST FOR PROPOSALS FOR BI-REGIONAL ADVOCACY SERVICE BY THE ADMINISTRATION ON AGING, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW). AFTER NEGOTIATING WITH LCPI ON THE BASIS OF A CONDITIONALLY ACCEPTABLE PROPOSAL, WHICH IT DETERMINED COULD NOT BE MADE ACCEPTABLE, HEW CANCELED THE SOLICITATION, NO. 105-79-3007, BECAUSE NO OTHER TECHNICALLY ACCEPTABLE PROPOSALS HAD BEEN SUBMITTED.

LCPI STATES THAT IT RECEIVED NOTICE OF THE CANCELLATION ON MAY 7, 1979; IT IMMEDIATELY INQUIRED ABOUT PROCEDURES FOR APPEALING HEW'S DECISION TO CANCEL AND REQUESTED COPIES OF EVALUATION DOCUMENTS, RECEIVING SOME ON MAY 22, 1979, AND THE REMAINDER ON MAY 31, 1979.

LCPI ALSO PROTESTS THE MANNER IN WHICH NEGOTIATIONS WERE CONDUCTED. SPECIFICALLY, LCPI STATES THAT DISCUSSIONS WERE HELD ON MARCH 21, 1979, A DATE WHEN ITS ATTORNEY COULD NOT ATTEND. THUS, LCPI ARGUES, IT WAS DENIED THE "RIGHT TO BE REPRESENTED BY COUNSEL."

FOR THE FOLLOWING REASONS, WE ARE DISMISSING THE PROTEST IN PART AND SUMMARILY DENYING THE REST.

THE PROTEST REGARDING THE DATE OF NEGOTIATIONS IS UNTIMELY. OUR PROCEDURES REQUIRE THAT PROTESTS BE FILED - DEFINED AS RECEIVED - IN THIS OFFICE WITHIN 10 DAYS AFTER THE BASIS FOR THEM IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 20.2(B)(2) (1979). LCPI DID NOT FILE ITS PROTEST UNTIL JUNE 5, 1979, MORE THAN 10 DAYS AFTER THE NEGOTIATION DATE WAS "UNILATERALLY IMPOSED" BY HEW. WE NOTE, HOWEVER, THAT THERE IS NO RIGHT TO COUNSEL IN NEGOTIATION OF GOVERNMENT CONTRACTS, AND THAT LCPI REJECTED TWO EARLIER DATES SUGGESTED BY HEW.

LCPI FURTHER ALLEGES THAT, DURING NEGOTIATIONS, HEW PLACED "INORDINATE RELIANCE" ON THE RESPONSES OF ITS EXECUTIVE DIRECTOR, THE PROPOSED PROJECT DIRECTOR, AND EITHER EXCLUDED OR MISINTERPRETED REMARKS BY THE PRESIDENT OF THE BOARD. LCPI STATES THAT THE EXECUTIVE DIRECTOR RESIGNED ON MAY 3, 1979; IT THEREFORE URGES THAT THE SOLICITATION BE REINSTATED AND NEGOTIATIONS BE REOPENED, SO THAT LCPI WILL BE ABLE TO "CLARIFY AND CORRECT" ERRONEOUS ASSUMPTIONS MADE BY HEW.

ALTHOUGH WE CONSIDER THIS OBJECTION TIMELY (BECAUSE HEW'S OPINION OF THE PROJECT DIRECTOR MAY NOT HAVE BEEN APPARENT UNTIL LCPI RECEIVED THE EVALUATION DOCUMENTS), WE DO NOT BELIEVE THE ORGANIZATION HAS STATED A VALID GROUND FOR PROTEST. IN ITS PROPOSAL, LCPI LISTED THE EXECUTIVE DIRECTOR, AS WELL AS THE PRESIDENT OF THE BOARD, AS AUTHORIZED TO NEGOTIATE. HEW CAN HARDLY BE FAULTED FOR NEGOTIATING WITH AN AUTHORIZED SPOKESMAN OR FOR EVALUATING HIS ABILITY TO DIRECT A PROJECT WHEN, AT THE TIME OF EVALUATION, HE WAS PROPOSED FOR THAT POSITION. HEW CANCELED THE SOLICITATION ON APRIL 26, 1979, BEFORE THE INDIVIDUAL IN QUESTION RESIGNED.

WE FIND LCPI'S PROTEST IS UNTIMELY IN PART AND WITHOUT LEGAL MERIT OTHERWISE. SEE MURPHY ANDERSON VISUAL CONCEPTS, INC., B-191850, JUNE 15, 1978, 78-1 CPD 438. WE THEREFORE ARE DISMISSING IT IN PART AND SUMMARILY DENYING THE REST WITHOUT BENEFIT OF A FULL REPORT FROM HEW. ID., RECONSIDERATION, JULY 31, 1978, 78-2 CPD 79.