B-220824, NOV 5, 1985, 85-2 CPD 527
Highlights
PROTEST IS DISMISSED FOR FAILURE TO SET FORTH A DETAILED STATEMENT OF THE LEGAL AND FACTUAL GROUNDS OF PROTEST WHERE THE PROTESTER MERELY SAYS THAT IT SUBMITTED THE BEST PROPOSAL AND THAT THE AGENCY'S EVALUATION WAS NOT FAIR AND EQUITABLE. IT CAN BE LEARNED IN TIME TO PERMIT PROTESTER TO HAVE THE BENEFIT OF SUSPENSION OF PERFORMANCE REQUIREMENT. THE PROTESTER SAYS IT BELIEVES THAT ITS PROPOSAL WAS THE BEST SUBMITTED BUT THAT THE AGENCY'S EVALUATION OF ITS PROPOSAL WAS NOT FAIR AND EQUITABLE. WE FIND THE PROTESTER'S CONTENTIONS THAT ITS PROPOSAL WAS THE BEST AND THAT THE AGENCY'S EVALUATION WAS NOT FAIR DO NOT MEET THIS STANDARD. WE REALIZE THAT THE PROTESTER APPARENTLY HAS NOT YET HAD THE BENEFIT OF A DEBRIEFING AT WHICH IT PRESUMABLY WOULD LEARN THE SPECIFIC REASONS WHY ITS PROPOSAL WAS NOT SELECTED FOR AWARD.
B-220824, NOV 5, 1985, 85-2 CPD 527
CONTRACTS - PROTESTS - BASIS FOR PROTEST REQUIREMENT DIGEST: 1. PROTEST IS DISMISSED FOR FAILURE TO SET FORTH A DETAILED STATEMENT OF THE LEGAL AND FACTUAL GROUNDS OF PROTEST WHERE THE PROTESTER MERELY SAYS THAT IT SUBMITTED THE BEST PROPOSAL AND THAT THE AGENCY'S EVALUATION WAS NOT FAIR AND EQUITABLE, BUT PROVIDES NO SUPPORTING DETAILS. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DEBRIEFING CONFERENCES - ISSUES PROVIDING PROTEST BASIS 2. IN LIGHT OF THE REQUIREMENT OF THE COMPETITION IN CONTRACTING ACT OF 1984 THAT AN AGENCY SUSPEND PERFORMANCE OF A CONTRACT IF IT RECEIVES NOTICE OF A PROTEST WITHIN 10 DAYS OF THE DATE OF THE CONTRACT AWARD, GAO RECOMMENDS THAT THE FEDERAL ACQUISITION REGULATION BE REVISED TO REQUIRE AGENCIES TO SCHEDULE POST-AWARD DEBRIEFINGS OF UNSUCCESSFUL OFFERORS AS SOON AFTER AWARD AS POSSIBLE, SO THAT IF BASIS FOR PROTEST EXISTS, IT CAN BE LEARNED IN TIME TO PERMIT PROTESTER TO HAVE THE BENEFIT OF SUSPENSION OF PERFORMANCE REQUIREMENT.
GTT INDUSTRIES, INC.:
GTT INDUSTRIES, INC. PROTESTS THE AWARD OF A CONTRACT TO HARRIS CORPORATION UNDER REQUEST FOR PROPOSALS (RFP) NO. N68335-85-R-0814, ISSUED BY THE NAVAL AIR ENGINEERING CENTER, LAKEHURST, NEW JERSEY. THE PROTESTER SAYS IT BELIEVES THAT ITS PROPOSAL WAS THE BEST SUBMITTED BUT THAT THE AGENCY'S EVALUATION OF ITS PROPOSAL WAS NOT FAIR AND EQUITABLE. THE PROTESTER ALSO REQUESTS A DEBRIEFING. WE DISMISS THE PROTEST BECAUSE THE PROTESTER HAS PROVIDED NO DETAILS IN SUPPORT OF ITS ALLEGATIONS.
OUR BID PROTEST REGULATIONS REQUIRE THAT A PROTEST SET FORTH A DETAILED STATEMENT OF THE LEGAL AND FACTUAL GROUNDS OF PROTEST AND INCLUDE COPIES OF RELEVANT DOCUMENTS, 4 C.F.R. SEC. 21.1(C)(4) (1985); THE REGULATIONS PROVIDE FOR DISMISSAL OF ANY PROTEST THAT FAILS TO COMPLY WITH THIS REQUIREMENT. ID. SEC. 21.1(F). THE REGULATIONS CONTEMPLATE A STATEMENT SUFFICIENT TO APPRISE THE AGENCY OF THE SPECIFIC ASPECTS OF THE PROCUREMENT TO WHICH THE PROTESTER OBJECTS, MARINE LOGISTICS CORP., B-218150, MAY 30, 1985, 85-1 CPD PARA. 614, RATHER THAN MERELY A GENERAL EXPRESSION OF DISSATISFACTION OVER NOT RECEIVING AN AWARD. SEE, E.G., ALLIED BENDIX AEROSPACE, B-218869.2, JUNE 6, 1985, 85-1 CPD PARA. 651 (UNEXPLAINED OBJECTION TO AWARD BEING MADE TO ANY OTHER FIRM). IN THIS CASE, WE FIND THE PROTESTER'S CONTENTIONS THAT ITS PROPOSAL WAS THE BEST AND THAT THE AGENCY'S EVALUATION WAS NOT FAIR DO NOT MEET THIS STANDARD.
IN DISMISSING THIS PROTEST FOR LACK OF A DETAILED STATEMENT OF THE GROUNDS FOR THE PROTEST, WE REALIZE THAT THE PROTESTER APPARENTLY HAS NOT YET HAD THE BENEFIT OF A DEBRIEFING AT WHICH IT PRESUMABLY WOULD LEARN THE SPECIFIC REASONS WHY ITS PROPOSAL WAS NOT SELECTED FOR AWARD. IN THIS CONNECTION, THE FEDERAL ACQUISITION REGULATION (FAR) REQUIRES THE CONTRACTING AGENCY (NOT THIS OFFICE) TO DEBRIEF UNSUCCESSFUL OFFERORS CONCERNING THE BASIS FOR THE SELECTION DECISION. 48 C.F.R. SEC. 15.1003(A) (1984). UNDER THE FAR, SCHEDULING OF THE DEBRIEFING IS FOR THE AGENCY TO DETERMINE IN ITS DISCRETION. IF, AS A RESULT OF ANY DEBRIEFING THAT MAY BE HELD IN THIS CASE, THE PROTESTER LEARNS OF DETAILS THAT ESTABLISH A VALID BASIS FOR A PROTEST, IT WOULD BE FREE TO FILE A PROTEST HERE SETTING FORTH A DETAILED STATEMENT OF ITS PROTEST GROUNDS, PROVIDED, OF COURSE, THAT IT DOES SO WITHIN 10 WORKING DAYS OF WHEN IT KNOWS OF THE BASIS FOR THE PROTEST. SEE UNIVERSITY OF THE DISTRICT OF COLUMBIA, B-213747, SEPT. 24, 1984, 84-2 CPD PARA. 330.
THE CIRCUMSTANCES OF THIS CASE, HOWEVER, ILLUSTRATE A POTENTIAL PROBLEM THAT COULD RESULT FROM THE COMBINATION OF THE REQUIREMENT THAT A PROPERLY FILED PROTEST CONTAIN SPECIFIC ALLEGATIONS AND THE DISCRETION VESTED IN THE CONTRACTING AGENCIES UNDER THE CURRENT FAR CONCERNING THE SCHEDULING OF DEBRIEFINGS. SINCE THE COMPETITION IN CONTRACTING ACT OF 1984, 31 U.S.C.A. SEC. 3553(D)(1) (WEST SUPP. 1985), REQUIRES AN AGENCY TO SUSPEND PERFORMANCE OF CONTRACT ONLY WHEN IT RECEIVES NOTICE OF A PROTEST WITHIN 10 DAYS OF THE DATE OF THE CONTRACT AWARD, THE EFFECTIVENESS OF THIS STAY PROVISION COULD BE DIMINISHED CONSIDERABLY IF AGENCIES ROUTINELY SCHEDULE DEBRIEFINGS MORE THAN 10 DAYS AFTER AWARD. WE THEREFORE ARE RECOMMENDING TO THE FAR SECRETARIAT THAT IT CONSIDER AMENDING THE REGULATIONS TO REQUIRE AGENCIES TO SCHEDULE DEBRIEFINGS AS SOON AS POSSIBLE UPON REQUEST SO THAT OFFERORS WILL BE ABLE TO OBTAIN THE BENEFIT OF THE STAY PROVISION.
THE PROTEST IS DISMISSED.