B-175623, AUG 17, 1972

B-175623: Aug 17, 1972

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IT IS GAO'S POSITION THAT PROTESTS AGAINST THE SPECIFICATIONS AND CONDITIONS OF AN IFB MUST BE FILED BEFORE OPENING OF BIDS. A BIDDER WHO PARTICIPATES IN A PROCUREMENT THROUGH BID OPENING WITHOUT OBJECTION IS CONSIDERED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS OF THE IFB. ITS PROTEST IS UNTIMELY. THE SEVEN ITEMS IN THE IFB WERE SOLICITED BY CITING SCIENTIFIC CAGES. STATED ON THE BID SCHEDULE THAT IT WAS NOT BIDDING ITEMS 1 AND 2 INSTALLED. SEVEN DAYS AFTER THE BIDS WERE OPENED. AWARD WAS MADE TO SCIENTIFIC CAGES ON MARCH 27. THE PRINCIPAL BASES OF YOUR PROTEST ARE THAT THE VA PREVENTED COMPETITION BY USING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION OF PRODUCTS THAT ARE NOT PUBLISHED IN CATALOGS OR OTHER DESCRIPTIVE LITERATURE AVAILABLE TO OTHER FIRMS.

B-175623, AUG 17, 1972

BID PROTEST - UNTIMELY PROTEST DENIAL OF PROTEST BY RESEARCH EQUIPMENT CO., INC., AGAINST THE TERMS OF AN IFB ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, LITTLE ROCK, ARK., FOR HOSPITAL LABORATORY EQUIPMENT. IT IS GAO'S POSITION THAT PROTESTS AGAINST THE SPECIFICATIONS AND CONDITIONS OF AN IFB MUST BE FILED BEFORE OPENING OF BIDS. A BIDDER WHO PARTICIPATES IN A PROCUREMENT THROUGH BID OPENING WITHOUT OBJECTION IS CONSIDERED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS OF THE IFB. SEE 50 COMP. GEN. 193 (1970). SINCE RESEARCH EQUIPMENT SUBMITTED A BID AND DID NOT PROTEST THE PROPRIETY OF THE INVITATION TERMS UNTIL SEVEN DAYS AFTER THE OPENING OF BIDS, ITS PROTEST IS UNTIMELY.

TO RESEARCH EQUIPMENT CO., INC.:

WE REFER TO YOUR LETTERS OF MARCH 31 AND APRIL 28, 1972, PROTESTING AGAINST THE TERMS OF INVITATION FOR BIDS (IFB) 598-70-72, ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL (VA), LITTLE ROCK, ARKANSAS, FOR HOSPITAL LABORATORY EQUIPMENT.

THE SEVEN ITEMS IN THE IFB WERE SOLICITED BY CITING SCIENTIFIC CAGES, INC., MODEL NUMBERS OR EQUAL. SCIENTIFIC CAGES BID THE BRAND NAME EQUIPMENT AT AN AGGREGATE COST OF $20,955. RESEARCH EQUIPMENT CO., INC., BID EQUIPMENT OF ITS OWN MANUFACTURE AT AN AGGREGATE COST OF $21,224,50, AND STATED ON THE BID SCHEDULE THAT IT WAS NOT BIDDING ITEMS 1 AND 2 INSTALLED, AS REQUIRED UNDER THE IFB, BECAUSE IT HAD NOT INSPECTED THE SITE OF INSTALLATION. ON MARCH 17, 1972, SEVEN DAYS AFTER THE BIDS WERE OPENED, YOU PROTESTED THE PROPRIETY OF THE INVITATION TERMS FOR THE FIRST TIME. AWARD WAS MADE TO SCIENTIFIC CAGES ON MARCH 27, 1972. THEREAFTER, BY LETTER OF MARCH 31, 1972, YOU PROTESTED TO OUR OFFICE.

THE PRINCIPAL BASES OF YOUR PROTEST ARE THAT THE VA PREVENTED COMPETITION BY USING A BRAND NAME OR EQUAL PURCHASE DESCRIPTION OF PRODUCTS THAT ARE NOT PUBLISHED IN CATALOGS OR OTHER DESCRIPTIVE LITERATURE AVAILABLE TO OTHER FIRMS; THAT THE IFB DID NOT PROVIDE DRAWINGS OR DIMENSIONS OF THE ROOMS IN WHICH INSTALLATION WAS TO BE MADE; THAT THE IFB FAVORED THE BID WITH THE LOWEST AGGREGATE PRICE INSTEAD OF ITEM BID PRICES; AND THAT ADEQUATE TIME WAS NOT PROVIDED FOR THE PREPARATION OF BIDS SINCE THE IFB WAS NOT PUBLISHED IN THE COMMERCE BUSINESS DAILY UNTIL MARCH 2, 1972.

IT IS THE POSITION OF OUR OFFICE THAT PROTESTS AGAINST THE SPECIFICATIONS AND CONDITIONS OF AN IFB MUST BE FILED BEFORE OPENING OF BIDS. A BIDDER WHO PARTICIPATES IN A PROCUREMENT THROUGH BID OPENING WITHOUT OBJECTION IS CONSIDERED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS OF THE IFB. SEE 50 COMP. GEN. 193 (1970) AND B-173879, OCTOBER 1, 1971. FURTHER, UNDER PARAGRAPH 3 OF STANDARD FORM 33A OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, YOU COULD HAVE REQUESTED EXPLANATION AND CLARIFICATION OF THE IFB PRIOR TO BIDDING. SEE ALSO SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS PROVIDING THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION APPARENT PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING. HOWEVER, YOU RAISED NO OBJECTION AGAINST THE IFB UNTIL AFTER THE OPENING OF BIDS AND YOU DID NOT PROTEST TO OUR OFFICE UNTIL AFTER AWARD HAD BEEN MADE.

ACCORDINGLY, UNDER THESE CIRCUMSTANCES, THE PROTEST IS DENIED.