B-224395, OCT 6, 1986, 86-2 CPD 398

B-224395, OCT 6, 1986, 86-2 CPD 398

PROCUREMENT - BID PROTEST - MOOT ALLEGATION - GENERAL ACCOUNTING OFFICE REVIEW DIGEST: 1. PROTESTER'S COMPLAINT OF DELAY BY ARMY IN RESPONDING TO QUESTION CONCERNING WHETHER ORGANIZATION WHICH ACCREDITED PROTESTER WAS AN ACCEPTABLE ACCREDITATION ORGANIZATION UNDER THE SOLICITATION FOR EDUCATION SERVICES IS ACADEMIC SINCE THE ARMY AGREED THAT PROTESTER WAS PROPERLY ACCREDITED AND EXTENDED BID OPENING. PROCUREMENT - COMPETITIVE NEGOTIATION - USE - CRITERIA 2. PROTEST THAT PROCUREMENT FOR BASIC SKILL EDUCATION PROGRAM SHOULD HAVE BEEN CONDUCTED BY SOLICITING COMPETITIVE PROPOSALS, RATHER THAN BY SEALED BIDS, IS DENIED SINCE COMPETITION IN CONTRACTING ACT OF 1984 PROVIDES SPECIFIC CRITERIA FOR DETERMINING WHETHER SEALED BIDS OR COMPETITIVE PROPOSALS SHOULD BE SOLICITED, AND IN THE ARMY'S JUDGMENT, CIRCUMSTANCES IN PRESENT CASE DICTATED USE OF SEALED BIDS. PROCUREMENT - SEALED BIDDING - USE - CRITERIA 3. PROTEST THAT PROCUREMENT FOR BASIC SKILL EDUCATION PROGRAM SHOULD HAVE BEEN CONDUCTED BY SOLICITING COMPETITIVE PROPOSALS, RATHER THAN BY SEALED BIDS, IS DENIED SINCE COMPETITION IN CONTRACTING ACT OF 1984 PROVIDES SPECIFIC CRITERIA FOR DETERMINING WHETHER SEALED BIDS OR COMPETITIVE PROPOSALS SHOULD BE SOLICITED, AND IN THE ARMY'S JUDGMENT, CIRCUMSTANCES IN PRESENT CASE DICTATED USE OF SEALED BIDS.

AMERICAN PREPARATORY INSTITUTE OF THE AMERICAN EDUCATIONAL COMPLEX:

THE AMERICAN PREPARATORY INSTITUTE OF THE AMERICAN EDUCATIONAL COMPLEX (API), PROTESTS INVITATION FOR BIDS (IFB) DABT39-86-B-0052, ISSUED BY FORT SILL, OKLAHOMA, FOR A BASIC SKILL EDUCATION PROGRAM TO BE CONDUCTED AT THE FORT.

WE DENY THE PROTEST IN PART AND DISMISS IT IN PART.

THE SOLICITATION, WHICH WAS ISSUED ON MAY 27, 1986, PROVIDED THAT THE CONTRACTOR WOULD HAVE TO BE ACCREDITED BY ONE OF 13 ORGANIZATIONS LISTED IN PARAGRAPH 1-10G OF ARMY REGULATION (AR) 621-5.

ACCORDING TO API, 3 DAYS PRIOR TO THE SCHEDULED BID OPENING DATE OF JUNE 27, IT DELIVERED A LETTER TO THE DIRECTORATE OF CONTRACTING AT FORT SILL, INQUIRING WHETHER AN INSTITUTION ACCREDITED BY THE SOUTHERN ASSOCIATION OF COLLEGES AND SCHOOLS-- COMMISSION ON SECONDARY SCHOOLS (COMMISSION), AN ORGANIZATION WHICH WAS NOT LISTED AS AN ACCREDITING ORGANIZATION IN AR 621 -5, WOULD MEET THE ACCREDITATION REQUIREMENTS. API WAS ACCREDITED BY THE COMMISSION. BY LETTER OF JUNE 26, THE CONTRACTING OFFICER ADVISED API THAT THE COMMISSION WOULD BE AN ACCEPTABLE ACCREDITATION ORGANIZATION. THE CONTRACTING OFFICER ALSO INFORMED API OF THIS BY PHONE ON THE SAME DAY. THE BID OPENING HAS BEEN EXTENDED IDEFINITELY.

API APPEARS TO COMPLAIN ABOUT THE ARMY'S ALLEGED DELAY IN RESPONDING TO ITS INQUIRY. ALSO, API ARGUES THAT THE PROCUREMENT SHOULD BE CONDUCTED BY SOLICITING COMPETITIVE PROPOSALS RATHER THAN SEALED BIDS.

SINCE THE ARMY HAS AGREED WITH API THAT IT HAS THE PROPER ACCREDITATION TO COMPETE UNDER THE SOLICITATION AND HAS EXTENDED THE BID OPENING DATE, THE PROTESTER'S ALLEGATION CONCERNING THE ALLEGED LATENESS OF THE ARMY'S RESPONSE IS ACADEMIC AND NEED NOT BE CONSIDERED. SEE TOWER ENGINEERING AND CONSTRUCTION, B-219630, SEPT. 30, 1985, 85-2 CPD PARA. 357.

IN ANY EVENT, WE NOTE THAT THE AGENCY ONLY TOOK 2 DAYS TO RESPOND TO API'S INQUIRY. ALSO, THE RECORD SHOWS THAT BY LETTER OF JUNE 6, API ASKED THE QUESTIONS CONCERNING OTHER SOLICITATION REQUIREMENTS AND THAT A PRE- BID CONFERENCE WAS HELD ON JUNE 11. IT SEEMS, THEREFORE, THAT API HAD AMPLE OPPORTUNITY TO RAISE THE ISSUE OF ACCREDITATION MUCH EARLIER, BUT DID NOT DO SO.

THE PROTESTER ALSO STATES THAT THE PROCUREMENT SHOULD BE CONDUCTED BY SOLICITING COMPETITIVE PROPOSALS RATHER THAN BY SEALED BIDDING. IN THIS REGARD, THE PROTESTER NOTES THAT THE ARMY FEDERAL ACQUISITION SUPPLEMENT AT SEC. 37.9303(D) PROVIDES THAT IN PROCUREMENTS FOR EDUCATION SERVICES THE AGENCY IS TO REQUIRE OFFERORS TO SUBMIT PERSONNEL QUALIFICATION DATA AND TO EVALUATE THAT DATA IN DETERMINING THE AWARD. IT APPEARS TO BE API'S VIEW THAT THIS REQUIREMENT CAN ONLY BE IMPLEMENTED THROUGH THE USE OF A NEGOTIATED PROCUREMENT.

THE REGULATION CITED BY API ONLY SUGGESTS THAT CONTRACTING OFFICERS USE THE APPROACH LISTED "WHEN APPROPRIATE." IN THIS INSTANCE, THE AGENCY DID NOT BELIEVE THAT THE SERVICES IT NEEDED WERE OF SUFFICIENT COMPLEXITY TO REQUIRE THE SUBMISSION AND EVALUATION OF PERSONNEL DATA. FURTHER, WHILE THE COMPETITION IN CONTRACTING ACT OF 1984 ELIMINATES THE PREFERENCE FOR SEALED BIDS, THE STATUTE PROVIDES SPECIFIC CRITERIA FOR DETERMINING WHETHER SEALED BIDS OR COMPETITIVE PROPOSALS SHOULD BE SOLICITED. U.S.C. SEC. 2304(A)(2)(A) (SUPP. III 1985); THE SAXON CORP., B-221054, MAR. 6, 1986, 86-1 CPD PARA. 225. IN ESSENCE, THE STATUTE REQUIRES THE USE OF SEALED BIDS IF TIME PERMITS, THE AWARD WILL BE MADE ON THE BASIS OF PRICE, IT IS NOT NECESSARY TO CONDUCT DISCUSSIONS AND THERE IS REASONABLE EXPECTATION OF RECEIVING MORE THAN ONE BID. HERE, IN THE AGENCY'S JUDGMENT, THESE FACTORS WERE ALL PRESENT. THERE IS NOTHING IN THE RECORD OR RAISED BY THE PROTESTER WHICH WOULD CAUSE US TO QUESTION THE AGENCY'S DECISION. THE SAXON CORP., B-221054, SUPRA.

FINALLY, API RAISES A NUMBER OF CONTENTIONS THAT ARE EITHER UNTIMELY, IRRELEVANT OR UNSUBSTANTIATED. WE DO NOT CONSIDER SUCH MATTERS.

WE DENY THE PROTEST IN PART AND DISMISS IT IN PART.