B-175698, AUG 7, 1972

B-175698, AUG 7, 1972

BID PROTEST - UNTIMELY FILING DENIAL OF PROTEST BY HUGH R. NOEL, COMPANY, INC., AGAINST AWARD OF A CONTRACT TO ANOTHER FIRM UNDER AN IFB ISSUED BY THE NAVAL SUPPLY CENTER, NORFOLK, VA. THE INTERIM BID PROTEST PROCEDURES AND STANDARDS AS SET FORTH IN TITLE 4, CFR, REQUIRE THAT A PROTEST BASED ON ALLEGED IMPROPRIETIES IN AN INVITATION WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED WITH GAO PRIOR TO BID OPENING. SINCE BIDS WERE OPENED ON MARCH 31, 1972, AND THE PROTEST WAS DATED APRIL 13, 1972, AND BASED ON THE FACT THAT BOTH MANUFACTURERS AND DEALERS WERE SOLICITED TO BID, GAO MUST CONCLUDE THAT THE PROTEST WAS NOT TIMELY FILED.

TO HUGH R. NOEL COMPANY, INC.:

WE REFER TO YOUR PROTEST AGAINST AWARD TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. N00189-72-B-0117, ISSUED BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA.

YOU STATE THAT YOUR FIRM IS THE VIRGINIA REPRESENTATIVE FOR THE STANDARD CONVEYOR COMPANY, A MANUFACTURER OF CONVEYORS. YOU BASE YOUR PROTEST ON THE FACT THAT A REPRESENTATIVE OF YOUR FIRM VISITED THE NAVAL OPTHALMIC SUPPORT AND TRAINING ACTIVITY (NOSTRA) IN AUGUST 1971, TO ASSIST IN THE DESIGN AND PREPARATION OF SPECIFICATIONS FOR A CONVEYOR SYSTEM, BUT WHEN THE INVITATION FOR BIDS WAS ISSUED, BOTH MANUFACTURERS AND DEALERS WERE PERMITTED TO BID.

YOU DID NOT FILE YOUR PROTEST, HOWEVER, UNTIL AFTER BID OPENING WHEN YOU LEARNED THAT YOUR BID WAS SECOND LOW AND THAT THE LOW BIDDER WAS A MANUFACTURER. YOU REQUEST THAT THE LOW BID BE REJECTED AND THAT NEW BIDS BE OBTAINED FROM DEALERS ONLY.

THE REPORT FROM THE NAVAL SUPPLY SYSTEMS COMMAND STATES THAT IN JUNE AND JULY 1971, STANDARD CATALOG LITERATURE ON CONVEYORS WAS REQUESTED FROM FOUR FIRMS, INCLUDING STANDARD CONVEYOR COMPANY, IN ORDER TO DEVELOP BACKGROUND INFORMATION. THE RESPONSE FROM STANDARD FURNISHING THE LITERATURE REQUESTED ALSO FURNISHED THE NAME, ADDRESS AND TELEPHONE NUMBER OF YOUR COMPANY AS ITS REPRESENTATIVE IN THE AREA. STANDARD STATED THAT YOUR FIRM WOULD FURNISH, WITHOUT OBLIGATION, AN APPROXIMATE COST FIGURE FOR A CONVEYOR SYSTEM SUITABLE TO THE NEEDS OF NOSTRA.

ACCORDING TO A MEMORANDUM FROM THE COMMANDING OFFICER OF NOSTRA, DURING THE TELEPHONE CONVERSATION SETTING UP THE VISIT OF AUGUST 11, 1971, NO COMMITMENT OR OBLIGATION WAS INCURRED. WHEN YOUR REPRESENTATIVE, MR. HUGH R. NOEL, VISITED THE ACTIVITY ON AUGUST 11, IT WAS REITERATED THAT NO OBLIGATION WOULD BE INCURRED ON THE PART OF NOSTRA. IN ADDITION, THE COMMANDING OFFICER SPECIFICALLY ADVISED MR. NOEL THAT THE PROCUREMENT WOULD BE UNDER THE COGNIZANCE OF THE NAVAL SUPPLY CENTER, NORFOLK (NSC NORVA), AND MR. NOEL INDICATED THAT HE WAS FAMILIAR WITH NAVY CONTRACT PROCEDURES, HAVING RECENTLY INSTALLED A CONVEYOR SYSTEM FOR THE NAVY.

WHEN THE INVITATION FOR BIDS WAS ISSUED ON FEBRUARY 23, 1972, BY NSC NORVA, IT WAS TOTALLY SET-ASIDE FOR SMALL BUSINESS PARTICIPATION IN ACCORDANCE WITH ASPR 1-706.5. THE ORIGINAL MAILING LIST OF THIRTY THREE SMALL BUSINESS FIRMS INCLUDED BOTH DEALERS AND MANUFACTURERS. THE INVITATION WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY PURSUANT TO THE PROVISIONS IN ASPR 1-1003 AND THIRTY-THREE ADDITIONAL FIRMS REQUESTED COPIES OF THE INVITATION.

SECTION C.9 ON PAGE 5 OF THE INVITATION PROVIDES AS FOLLOWS:

"SMALL BUSINESS CONCERN

FOR THE PURPOSE OF THIS PROCUREMENT, A SMALL BUSINESS CONCERN WILL BE CONSIDERED TO BE: A MANUFACTURING INDUSTRY WHOSE NUMBER OF EMPLOYEES INCLUDING ITS AFFILIATES, SHALL NOT EXCEED 500 PERSONS.

THE CLASSIFICATION CODE FROM THE STANDARD INDUSTRIAL CLASSIFICATION MANUAL IS 3535."

SECTION C.10, NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE, ALSO CONTAINS A REQUIREMENT THAT A MANUFACTURER OR REGULAR DEALER SUBMITTING BIDS IN HIS OWN NAME MUST AGREE TO FURNISH END ITEMS MANUFACTURED OR PRODUCED BY SMALL BUSINESS CONCERNS.

BIDS WERE RECEIVED FROM TEN SMALL BUSINESS FIRMS (SIX MANUFACTURERS AND FOUR DEALERS), AND WERE OPENED ON MARCH 31, 1972. THE LOW BID WAS SUBMITTED BY SPILLYARD MACHINERY COMPANY, INC., A SMALL MANUFACTURING BUSINESS, IN THE AMOUNT OF $16,387. THE SECOND LOW BID WAS FROM YOUR FIRM IN THE AMOUNT OF $16,450. THE BIDS SUBMITTED BY THE REMAINING EIGHT BIDDERS RANGED FROM $16,500 TO $31,950.50.

THE CONTRACTING OFFICER REQUESTED AND RECEIVED A PREAWARD SURVEY REPORT FROM DCASO, SAN ANTONIO, TEXAS, WHICH REPORT RECOMMENDS A COMPLETE AWARD TO SPILLYARD.

IT IS APPARENT FROM THE INVITATION THAT BIDS WERE SOLICITED FROM BOTH MANUFACTURERS AND DEALERS. THE INTERIM BID PROTEST PROCEDURES AND STANDARDS OF THIS OFFICE, AS SET FORTH IN TITLE 4, CODE OF FEDERAL REGULATIONS, REQUIRE THAT A PRETEST BASED ON ALLEGED IMPROPRIETIES IN AN INVITATION WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED WITH THIS OFFICE PRIOR TO BID OPENING. SINCE BIDS WERE OPENED ON MARCH 31, 1972, AND YOUR PROTEST WAS DATED APRIL 13, 1972, AND BASED ON THE FACT THAT BOTH MANUFACTURERS AND DEALERS WERE SOLICITED TO BID, WE MUST CONCLUDE THAT YOUR PROTEST WAS NOT TIMELY FILED. THERE IS NO PROCEDURE AVAILABLE UNDER WHICH A BIDDER MAY SUBMIT A BID AND THEN, IF UNSUCCESSFUL, FILE A PROTEST AFTER BID OPENING BASED ON ALLEGED IMPROPRIETIES IN THE INVITATION.

WE ARE CONSTRAINED TO OBSERVE, HOWEVER, THAT EVEN IF YOUR PROTEST HAD BEEN TIMELY FILED, IT WOULD HAVE RAISED NO IMPEDIMENT TO AN AWARD TO SPILLYARD, THE LOW BIDDER. YOU HAVE CITED NO STATUTE, REGULATION OR OTHER AUTHORITY, NOR ARE WE AWARE OF ANY, WHICH WOULD PERMIT EXCLUSION OF MANUFACTURERS IN A FORMALLY ADVERTISED PROCUREMENT MERELY BECAUSE YOUR FIRM AND OTHER DEALERS VOLUNTARILY PARTICIPATED IN PREPARATION OF THE SPECIFICATIONS.

FOR THE REASONS STATED, YOUR PROTEST MUST BE DENIED.