B-176717(1), FEB 8, 1973

B-176717(1): Feb 8, 1973

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PROTESTS REGARDING THE ADEQUACY OF THE SOLICITATION PROVISIONS WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED WITH GAO BEFORE SUCH DATE. 4 CFR 20.2(A). INC.: THIS IS IN REPLY TO YOUR LETTERS DATED DECEMBER 22 AND 26. IF A DECISION BY THIS OFFICE IS DESIRED. SENT YOUR FIRM AN UNDATED LETTER (A COPY WAS RECEIVED IN THIS OFFICE ON NOVEMBER 27. THIS LETTER ALSO NOTES THAT THE CONTRACTOR'S PERFORMANCE AT THAT TIME WAS REPORTED TO BE SATISFACTORY. TO PROVIDE A MORE DETAILED REVIEW OF THE MATTER AND TO RESPOND TO CERTAIN SPECIFIC CONTENTIONS WHICH YOU FELT WERE LEFT UNANSWERED. STANDARDS APPLICABLE TO THE TIMELINESS OF PROTESTS ARE PROVIDED IN SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.2(A)) IN PERTINENT PART.

B-176717(1), FEB 8, 1973

BID PROTEST - TIMELINESS DECISION DENYING THE PROTEST OF MINNESOTA (3M) GRAPHIC SERVICE, INC., AGAINST AWARD OF A CONTRACT TO T&D ENTERPRISES UNDER AN RFP ISSUED BY THE U.S. ARMY PROCUREMENT AGENCY, VIETNAM. PROTESTS CONCERNING THE CONTRACTOR'S RESPONSIBILITY MUST BE FILED WITH GAO WITHIN 5 DAYS AFTER NOTIFICATION OF ADVERSE AGENCY ACTION. 4 CFR 20.2(A). ALSO, PROTESTS REGARDING THE ADEQUACY OF THE SOLICITATION PROVISIONS WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS MUST BE FILED WITH GAO BEFORE SUCH DATE. 4 CFR 20.2(A).

TO MINNESOTA (3M) GRAPHIC SERVICE, INC.:

THIS IS IN REPLY TO YOUR LETTERS DATED DECEMBER 22 AND 26, 1972, RELATIVE TO YOUR PROTEST AGAINST AWARD OF CONTRACT DAJB11-72-C-0331 TO T&D ENTERPRISES, BY THE U.S. ARMY PROCUREMENT AGENCY, VIETNAM.

BY LETTER OF JULY 28, 1972, THIS OFFICE ACKNOWLEDGED RECEIPT OF THE INFORMATION COPY OF THE PROTEST DATED JULY 10, 1972, WHICH YOUR COMPANY FILED WITH THE U.S. ARMY PROCUREMENT AGENCY, VIETNAM, AND WE TRANSMITTED TO YOU A COPY OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20. IT SHOULD BE NOTED THAT THESE REGULATIONS REQUIRE PROTESTORS TO SPECIFICALLY REQUEST A RULING BY THE COMPTROLLER GENERAL, IF A DECISION BY THIS OFFICE IS DESIRED. THEREAFTER, WE RECEIVED AN INFORMATION COPY OF YOUR PROTEST LETTER DATED NOVEMBER 13, 1972, TO HEADQUARTERS U.S. ARMY, PACIFIC, WHICH YOU APPARENTLY SENT TO HIGHER AUTHORITY IN AN EFFORT TO OBTAIN A PROMPT RESOLUTION OF THE MATTER BY THE ARMY.

OUR RECORDS SHOW THAT THE CHIEF, PROCUREMENT DIVISION, HEADQUARTERS U.S. ARMY, PACIFIC, SENT YOUR FIRM AN UNDATED LETTER (A COPY WAS RECEIVED IN THIS OFFICE ON NOVEMBER 27, 1972) DENYING YOUR PROTEST FOR THE REASON THAT A REVIEW OF THE MATTER DID NOT INDICATE THAT THE CONTRACTING OFFICER ABUSED HIS DISCRETIONARY AUTHORITY OR ACTED ARBITRARILY OR CAPRICIOUSLY IN DETERMINING THE SUCCESSFUL OFFEROR TO BE A RESPONSIBLE POTENTIAL CONTRACTOR. THIS LETTER ALSO NOTES THAT THE CONTRACTOR'S PERFORMANCE AT THAT TIME WAS REPORTED TO BE SATISFACTORY. UPON RECEIPT OF THIS PROTEST DENIAL YOU REQUESTED HEADQUARTERS U.S. ARMY, PACIFIC, BY LETTER DATED NOVEMBER 30, 1972, TO PROVIDE A MORE DETAILED REVIEW OF THE MATTER AND TO RESPOND TO CERTAIN SPECIFIC CONTENTIONS WHICH YOU FELT WERE LEFT UNANSWERED.

YOU ADVISED THIS OFFICE BY LETTER DATED DECEMBER 22, 1972, OF YOUR OBJECTION TO THE ARMY'S DELAY IN PROVIDING YOU A COMPREHENSIVE RESPONSE TO YOUR PROTEST AND YOU REQUESTED A REPLY BY THIS OFFICE IN THE MATTER. THEREAFTER, YOU APPARENTLY RECEIVED THE ARMY'S LETTER DATED DECEMBER 20, 1972, WHICH GIVES A MORE DETAILED RESPONSE AND REAFFIRMS THE PRIOR DENIAL OF YOUR PROTEST. YOUR LETTER OF DECEMBER 26, 1972, TO THIS OFFICE OFFERS COMMENTS ON THE ARMY'S REPLY OF DECEMBER 20, AND SOLICITS OUR ADVICE IN THE MATTER.

ESSENTIALLY, YOUR PROTEST RAISES QUESTIONS GENERALLY AS TO THE ADEQUACY OR PROPRIETY OF THE SOLICITATION PROVISIONS AND THE RESPONSIBILITY OF THE SUCCESSFUL OFFEROR.

STANDARDS APPLICABLE TO THE TIMELINESS OF PROTESTS ARE PROVIDED IN SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.2(A)) IN PERTINENT PART, AS FOLLOWS:

"(A) *** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IN OTHER CASES, BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. ***"

REGARDING YOUR PROTEST AGAINST THE CONTRACTING OFFICER'S DETERMINATION THAT THE CONTRACTOR WAS A RESPONSIBLE OFFEROR, WE HAVE NOTED THAT YOUR REQUEST FOR CONSIDERATION BY THIS OFFICE, DATED DECEMBER 22, 1972, WAS RECEIVED HERE ON DECEMBER 29, 1972, APPROXIMATELY ONE MONTH AFTER YOU HAD BEEN NOTIFIED OF THE ADVERSE ACTION ON YOUR PROTEST BY HEADQUARTERS U.S. ARMY, PACIFIC (A COPY OF THE UNDATED LETTER FROM THE ARMY WHICH DENIED YOUR PROTEST WAS RECEIVED IN THIS OFFICE ON NOVEMBER 27). WE ARE AWARE OF NO JUSTIFICATION FOR YOUR FAILURE TO COMPLY WITH THE FIVE-DAY FILING REQUIREMENT AFTER NOTIFICATION OF ADVERSE AGENCY ACTION. WHILE WE THEREFORE DECLINE TO CONSIDER THE MERITS OF YOUR STATEMENTS REGARDING THE CONTRACTOR'S RESPONSIBILITY (52 COMP. GEN. , B-175779, JULY 13, 1972), WE HAVE TAKEN NOTE OF THE SIGNIFICANCE YOU ATTACH TO YOUR BELIEF THAT THE CONTRACTOR LACKED SUFFICIENT SPARE PARTS AND EXPERIENCED PERSONNEL PRIOR TO AWARD. IN THIS CONNECTION WE WISH TO BRING TO YOUR ATTENTION THE PROVISIONS IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-900 ET SEQ., RELATIVE TO THE REQUIREMENTS AND PROCEDURES FOR DETERMINATIONS OF RESPONSIBILITY OF PROSPECTIVE CONTRACTORS. YOUR PARTICULAR ATTENTION IS DIRECTED TO ASPR 1-903.2 WHICH REQUIRES CONSIDERATION OF THE PROSPECTIVE CONTRACTOR'S "ABILITY TO OBTAIN" THE NECESSARY EXPERIENCE, SKILLS, TECHNICAL EQUIPMENT, ETC., WHERE HE DOES NOT IN FACT POSSESS SUCH REQUIREMENTS AT THE TIME THE DETERMINATION IS MADE.

THE REMAINING ARGUMENTS RAISED BY YOUR PROTEST RELATE TO THE ADEQUACY OF THE SOLICITATION PROVISIONS AND WE BELIEVE YOUR OBJECTIONS IN THIS REGARD SHOULD HAVE BEEN APPARENT PRIOR TO JUNE 13, 1972, THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SINCE PROTESTS BASED ON SUCH MATTERS ARE REQUIRED TO BE FILED BEFORE THE CLOSING DATE FOR RECEIPT OF PROPOSALS AND YOU MADE NO ATTEMPT TO DO SO UNTIL JULY 10, 1972, NO ACTION MAY BE TAKEN ON THIS ASPECT OF YOUR PROTEST. B-175814, AUGUST 24, 1972.

AS TO THE DELAY YOU ENCOUNTERED IN OBTAINING A REPLY FROM THE ARMY, THERE IS ENCLOSED A COPY OF OUR LETTER OF TODAY TO THE SECRETARY OF THE ARMY RECOMMENDING CORRECTIVE ACTION IN THIS REGARD.