B-221710, FEB 20, 1986, OFFICE OF GENERAL COUNSEL

B-221710, FEB 20, 1986, OFFICE OF GENERAL COUNSEL

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - CONGRESSIONAL TRANSMITTAL OF PROTEST DIGEST: BID PROTEST REGULATIONS REGARDING TIMELINESS OF PROTESTS AND KINDS OF PROTESTS THAT GAO WILL CONSIDER APPLY EVEN IF PROTEST IS FILED BY OR REFERRED TO GAO BY A MEMBER OF CONGRESS.

THE HONORABLE TIMOTHY J. PENNY:

HOUSE OF REPRESENTATIVES

IN YOUR LETTER OF JANUARY 14, 1986, YOU REQUEST THAT OUR OFFICE INVESTIGATE THE PROTEST OF THE OWATONNA BUS COMPANY (OWATONNA) AGAINST ALLEGED IRREGULARITIES UNDER INVITATION FOR BIDS (IFB) NO. DAKF23-85-B 0071 ISSUED BY THE DEPARTMENT OF THE ARMY FOR THE TRANSPORTATION OF DEPENDENT SCHOOL CHILDREN AT FORT CAMPBELL, KENTUCKY.

ESSENTIALLY, OWATONNA CONTENDS THAT THE SPECIFICATIONS INCORPORATING THE "KENTUCKY MINIMUM SPECIFICATIONS FOR SCHOOL BUSES" WERE UNDULY RESTRICTIVE, PREVENTING IT FROM COMPETING, AND THAT THE SUCCESSFUL BIDDER SHOULD NOT HAVE BEEN AWARDED THE CONTRACT BECAUSE ITS BUSES WOULD NOT CONFORM TO THE SPECIFICATIONS.

WE ARE UNABLE TO CONSIDER THIS MATTER ON THE MERITS.

FIRST, ALTHOUGH OWATONNA WAS TOLD BEFORE BIDDING THAT THE SPECIFICATIONS WOULD NOT BE AMENDED, OWATONNA DID NOT PROTEST THE REFUSAL UNTIL AFTER BID OPENING. OUR BID PROTEST REGULATIONS REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING BE FILED PRIOR TO THAT TIME. 4 C.F.R. SEC. 21.2(A)(1) (1985). EVEN IF THE REFUSAL TO AMEND THE SPECIFICATIONS IS CONSIDERED A DENIAL OF A TIMELY PROTEST BY OWATONNA AGAINST THE SPECIFICATIONS, THE PROTEST TO OUR OFFICE IS UNTIMELY. OUR BID PROTEST REGULATIONS REQUIRE THAT, IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO OUR OFFICE BE FILED WITHIN 10 DAYS OF INITIAL ADVERSE AGENCY ACTION. 4 C.F.R. SEC. 21.2(A)(3) (1985). A PROTEST FILED HERE NOW SEVERAL MONTHS AFTER THE INITIAL ADVERSE AGENCY ACTION WOULD NOT MEET THE 10-DAY REQUIREMENT.

SECOND, WHETHER THE SUCCESSFUL BIDDER HAS THE CAPACITY TO PROVIDE BUSES THAT WILL CONFORM TO THE SPECIFICATIONS IS A MATTER OF RESPONSIBILITY. GENERALLY DO NOT REVIEW AN AFFIRMATIVE DETERMINATION OF RESPONSIBILITY ABSENT A SHOWING OF BAD FAITH OR THAT DEFINITIVE RESPONSIBILITY CRITERIA IN THE SOLICITATION WERE NOT MET. BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F)(5); AUL INSTRUMENTS, INC., B-220228, SEPT. 27, 1985, 85-2 CPD PARA. 351. THUS, TO THE EXTENT THAT OWATONNA MAY BE QUESTIONING THE RESPONSIBILITY OF THE SUCCESSFUL BIDDER, IT IS NOT FOR OUR CONSIDERATION. IF, ON THE OTHER HAND, OWATONNA BELIEVES THAT THE RESPONSIBILITY DETERMINATION WAS MADE IN BAD FAITH OR IN VIOLATION OF SOME DEFINITIVE RESPONSIBILITY CRITERIA, THE PROTEST COMING NOW WHEN THE AWARD WAS MADE ON OCTOBER 28, 1985, IS UNTIMELY. IN THAT REGARD, OUR BID PROTEST REGULATIONS REQUIRE THAT A PROTEST BE FILED NOT LATER THAN 10 DAYS AFTER THE BASIS OF PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 21.2(A)(2) (1985).

OUR REGULATIONS REGARDING THE TIMELINESS OF PROTESTS AND THE KINDS OF PROTESTS THAT WE WILL CONSIDER APPLY REGARDLESS OF THE SOURCE OF THE PROTEST, INCLUDING PROTESTS FILED BY OR REFERRED TO OUR OFFICE BY MEMBERS OF CONGRESS. AS INDICATED IN OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F)(5) (1985), WE DO NOT ORDINARILY REVIEW AFFIRMATIVE DETERMINATIONS OF RESPONSIBILITY BECAUSE A DETERMINATION THAT A BIDDER IS CAPABLE OF PERFORMING A CONTRACT IS BASED IN LARGE MEASURE ON SUBJECTIVE JUDGMENTS WHICH GENERALLY ARE NOT READILY SUSCEPTIBLE OF REASONED REVIEW. FURTHER, WHERE WE DO NOT REVIEW THE SUBJECT OF THE PROTEST, IN ORDER FOR THE BID PROTEST PROCESS TO BE MEANINGFUL, OUR OFFICE MUST HAVE THE OPPORTUNITY TO CONSIDER THE PROTEST WHILE IT IS STILL POSSIBLE TO TAKE EFFECTIVE ACTION WITH RESPECT TO THE PROCUREMENT WHEN THE CIRCUMSTANCES WARRANT IT. IT THEREFORE IS ESSENTIAL THAT WE ADHERE TO THE TIMELINESS REQUIREMENTS OF OUR REGULATIONS. MOREOVER, IF OUR OFFICE WERE TO CONSIDER ON THE MERITS WHEN SUBMITTED BY A MEMBER OF CONGRESS AN UNTIMELY PROTEST OR ONE THAT OUR REGULATIONS PROVIDE WE WILL NOT CONSIDER, THIS WOULD SUGGEST TO THE PROCUREMENT COMMUNITY THAT OUR REGULATIONS COULD BE CIRCUMVENTED BY SUBMITTING A PROTEST THROUGH A MEMBER OF CONGRESS.

WHILE OUR BID PROTEST REGULATIONS PROVIDE AT 4 C.F.R. SEC. 21.2(C) (1985) THAT, FOR GOOD CAUSE SHOWN OR WHERE THERE ARE ISSUES SIGNIFICANT TO THE PROCUREMENT SYSTEM, OUR OFFICE MAY CONSIDER ANY PROTEST WHICH IS NOT TIMELY FILED, WE DO NOT FIND THESE EXCEPTIONS APPLICABLE HERE. SEE JARRETT S. BLANKENSHIP CO., B-211139, APR. 13, 1983, 83-1 CPD PARA. 401. THEREFORE, THIS PROTEST CANNOT BE CONSIDERED ON THE MERITS.

FOR YOUR INFORMATION, WE ENCLOSE A COPY OF OUR PUBLICATION, BID PROTESTS AT GAO A DESCRIPTIVE GUIDE, WHICH CONTAINS A COPY OF OUR BID PROTEST REGULATIONS AND INFORMATION CONCERNING GAO'S BID PROTEST FUNCTION.