B-189858, JAN 4, 1978

B-189858, JAN 4, 1978

WHERE ALLEGED IMPROPRIETY IN SOLICITATION IS APPARENT PRIOR TO BID OPENING, BUT PROTEST IS NOT FILED UNTIL TWELVE DAYS AFTER BID OPENING, PROTEST IS DISMISSED AS UNTIMELY PURSUANT TO 4 C.F.R. SEC. 20.2(B) (1) (1977).

DAY'S CLEANING SERVICE:

DAY'S CLEANING SERVICE (DAY'S) PROTESTS THE AWARD OF A CONTRACT TO SPACE SERVICES OF GEORGIA, INC. (SPACE), FOR JANITORIAL SERVICES TO BE PERFORMED UNDER A REQUIREMENTS-TYPE CONTRACT AT FORT HUACHUCA, ARIZONA.

THE BASIS OF THE PROTEST IS AS FOLLOWS. THE SOLICITATION CALLED FOR BIDS ON TWENTY-FOUR (24) SEPARATE LINE ITEMS. THE ESTIMATED QUANTITIES FOR LINE ITEMS ONE THROUGH EIGHTEEN, INCLUSIVE, WERE FOR RELATIVELY FIRM CURRENTLY ANTICIPATED REQUIREMENTS. THE REMAINING LINE ITEMS, NINETEEN THROUGH TWENTY-FOUR, WERE IN THE CATEGORY OF "ON CALL" SERVICES, WITH THE QUANTITIES BEING GOVERNMENT ESTIMATES BASED UPON THE EXPERIENCE OF THE GOVERNMENT DURING PREVIOUS YEARS, UPDATED BY REASONABLE PROJECTIONS FOR FUTURE YEARS. DAY'S ARGUES THAT INCLUSION OF THESE "ON CALL" SERVICES IN THE SOLICITATION PROVIDES AN UNFAIR ADVANTAGE TO THE INCUMBENT FIRM. ITS LETTER OF AUGUST 12, 1977, DAY'S STATES IN PART:

"IT IS MY FEELING THAT THE AWARD OF THE CONTRACT SHOULD HAVE BEEN BASED UPON THE REQUEST FOR DIFINITE SERVICES WHICH CONSTITUTES THE GREATEST PORTION OF THE CONTRACT RATHER THAN THE REQUEST FOR ON-CALL SERVICES. REASONING IS THAT BY THE NATURE OF THE CONTRACT THE INCUMBENT FIRM IS AT A DISTINCT ADVANTAGE OVER ITS COMPETITOR SINCE IT KNOWS FROM PAST EXPERIENCE JUST HOW MUCH OF THE ON CALL SERVICES WILL BE REQUESTED. THUS, THE INCUMBENT FIRM CAN UNDERBID THIS SECTION KNOWING THAT THE AMOUNT STATED IN THE BID PROPOSAL WILL NOT BE REQUESTED."

GAO'S BID PROTEST PROCEDURES (4 C.F.R. PART 20 (1977)) PROVIDE (AT 4 C.F.R. SEC. 20.2(B) (1)) THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR INITIAL PROPOSALS.

THE BIDS WERE OPENED ON AUGUST 4, 1977, AWARD WAS MADE ON AUGUST 8, 1977, AND THE PROTEST WAS NOT RECEIVED UNTIL AUGUST 16, 1977.

UPON RECEIPT OF THE AGENCY'S REPORT ON OCTOBER 17, 1977, AND DAY'S REBUTTAL THERETO ON NOVEMBER 14, 1977, IT BECAME EVIDENT THAT DAY'S PROTEST RELATED TO PROVISIONS OF THE SOLICITATION AND NO PROTEST HAD BEEN LODGED PRIOR TO BID OPENING. FURTHERMORE, IT IS CLEAR THAT THE IMPROPRIETY ALLEGED BY DAY'S (INCLUSION OF THE "ON CALL" SERVICES IN THE SOLICITATION) WAS APPARENT PRIOR TO BID OPENING. THE "ON CALL" SERVICES WERE PLAINLY LISTED, AND THE METHOD OF EVALUATION WAS STATED IN THE SOLICITATION. SECTION D OF THE SOLICITATION, ENTITLED EVALUATION FACTORS FOR AWARD, PROVIDED, "AWARD WILL BE MADE TO THE CONFORMING RESPONSIBLE BIDDER SUBMITTING THE LOWEST AGGREGATE BID FOR THE TWELVE (12) MONTH PERIOD."

ACCORDINGLY, SINCE THE ALLEGED IMPROPRIETY WAS APPARENT PRIOR TO BID OPENING, BUT THE PROTEST WAS NOT FILED UNTIL TWELVE DAYS AFTER, THE PROTEST OF DAY'S CLEANING SERVICE IS DISMISSED AS UNTIMELY.