B-180219, MAY 23, 1974

B-180219: May 23, 1974

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PROTESTS CHALLENGING CONTRACTING OFFICER'S AUTHORITY TO IMPLEMENT AUTHORIZED REVISIONS TO THE SPECIFICATIONS OR ESTABLISH NEW CLOSING DATES FOR RECEIPT OF PROPOSALS AFTER INITIAL CLOSING DATE HAS PASSED MUST BE FILED BEFORE CLOSING DATE FOR RECEIPT OF PROPOSALS SO THAT PROTEST FILED AFTER NEW CLOSING DATE HAD PASSED IS UNTIMELY. 2. BID PROTESTS UNDER 20.2(A) MUST BE FILED WITHIN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN BY THE PROTESTER. NOT FROM INITIAL DATE PROTESTER'S ATTORNEY WAS ADVISED OF PROTESTER'S COMPLAINT. WAS RECEIVED PRIOR TO THE SOLICITATION'S CLOSING DATE OF JULY 10. THE CATHETERS WERE INITIALLY REQUIRED TO BE SUPPLIED IN ACCORDANCE WITH THE PURCHASE DESCRIPTION NO. 2 DATED OCTOBER 17.

B-180219, MAY 23, 1974

1. UNDER SECTION 20.2(A) OF GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS, PROTESTS CHALLENGING CONTRACTING OFFICER'S AUTHORITY TO IMPLEMENT AUTHORIZED REVISIONS TO THE SPECIFICATIONS OR ESTABLISH NEW CLOSING DATES FOR RECEIPT OF PROPOSALS AFTER INITIAL CLOSING DATE HAS PASSED MUST BE FILED BEFORE CLOSING DATE FOR RECEIPT OF PROPOSALS SO THAT PROTEST FILED AFTER NEW CLOSING DATE HAD PASSED IS UNTIMELY. 2. BID PROTESTS UNDER 20.2(A) MUST BE FILED WITHIN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN BY THE PROTESTER, AND NOT FROM INITIAL DATE PROTESTER'S ATTORNEY WAS ADVISED OF PROTESTER'S COMPLAINT.

TO DOW CORNING CORPORATION:

DOW CORNING CORPORATION (DOW) PROTESTS THE AWARD TO C. R. BARD, INC. (BARD), OF A CONTRACT FOR CATHETERS. THE CONTRACT RESULTED FROM A NEGOTIATED PROCUREMENT UNDER SOLICITATION DSA120-73-R-3751 ISSUED ON JUNE 19, 1973, BY THE DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA. DOW'S PROPOSAL, DATED JULY 7, 1973, WAS RECEIVED PRIOR TO THE SOLICITATION'S CLOSING DATE OF JULY 10, 1973.

BY LETTER DATED JULY 16, 1973, THE CONTRACTING OFFICER REQUESTED PREAWARD SAMPLES. THE SOLICITATION (SECTION "D" 10.93) REQUIRED SAMPLES TO BE SUBMITTED WITHIN 10 DAYS AFTER RECEIPT OF THE GOVERNMENT'S LETTER, AND STATED THAT WRITTEN NOTICE OF EVALUATION WOULD BE FORWARDED TO THE OFFERORS WITHIN 45 DAYS AFTER RECEIPT OF THE SAMPLE.

SUBSEQUENTLY, AMENDMENT 0001, DATED AUGUST 16, 1973, INCREASED THE QUANTITY OF CATHETERS TO BE SUPPLIED AND EXTENDED THE CLOSING DATE TO AUGUST 29, 1973. DOW DID NOT CHANGE ITS ORIGINAL PROPOSAL.

THE CATHETERS WERE INITIALLY REQUIRED TO BE SUPPLIED IN ACCORDANCE WITH THE PURCHASE DESCRIPTION NO. 2 DATED OCTOBER 17, 1972, WHICH STATED THAT MILITARY SPECIFICATION MIL-C-36891, DATED OCTOBER 16, 1972, WOULD CONTROL. HOWEVER, THE CONTRACTING OFFICER OBTAINED APPROVAL FROM THE DEFENSE MEDICAL MATERIAL BOARD TO MAKE REVISIONS IN MIL-C-36891. SUBSEQUENTLY, BY AN OCTOBER 3, 1973, TELEX MESSAGE TO EACH OFFEROR, THE CONTRACTING OFFICER SUBMITTED THE SPECIFICATION REVISIONS AND DIRECTED THAT ANY CHANGES IN THEIR PROPOSALS AS A RESULT THEREOF BE TRANSMITTED TO THE GOVERNMENT BY OCTOBER 5, 1973. THE CONTRACT WAS AWARDED TO BARD ON OCTOBER 10, 1973.

DOW'S PROTEST ASSERTS THAT AFTER THE JULY 10, 1973, CLOSING DATE PASSED, THE CONTRACTING OFFICER HAD NO AUTHORITY UNDER THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) TO ESTABLISH NEW CLOSING DATES OR TO ISSUE REVISIONS TO THE SOLICITATION'S SPECIFICATIONS. DOW ALSO CONTENDS THAT THERE WAS NO INDICATION IF BARD'S PRODUCTS UNDERWENT TESTING SO THAT THEY COULD BE IDENTIFIED BY THE FEDERAL STOCK NUMBERS. IN THIS REGARD, IT IS ARGUED THAT THE CONTRACTING OFFICER HAD NO AUTHORITY TO DEVIATE FROM THE STOCK NUMBERS OR THE MILITARY SPECIFICATION IN AWARDING THE CONTRACT.

SECTION "D" 10.93 OF THE SOLICITATION PROVIDED THAT PREAWARD SAMPLES, TOGETHER WITH AN ANALYSIS THEREOF, NORMALLY WOULD BE REQUESTED OF THE SUCCESSFUL OFFEROR AND THAT, IN THE EVENT OF AN AWARD TO OFFERORS FURNISHING REQUESTED SAMPLES, THE SPECIFICATION WOULD CONTROL OVER DEVIATING SAMPLES. IT WAS FURTHER PROVIDED THAT THE SAMPLES WERE FOR THE PURPOSE OF ESTABLISHING THE OFFEROR'S CAPABILITY TO PRODUCE ITEMS MEETING THE SPECIFICATIONS. WE UNDERSTAND THAT BARD'S SAMPLES WERE ACCEPTABLE UNDER THE REVISED SPECIFICATIONS. IN VIEW OF THESE FACTS, WE FIND NO REASON TO QUESTION THE AGENCY'S ACTIONS IN THIS REGARD.

IT IS QUESTIONABLE WHETHER DOW RECEIVED WRITTEN NOTICE OF THE AWARD TO BARD WHICH THE CONTRACTING OFFICER STATES WAS MAILED ON OCTOBER 10, 1973. HOWEVER, IT IS UNDISPUTED THAT ORAL NOTICE OF THE AWARD WAS GIVEN ON NOVEMBER 13, 1973, TO TWO RANKING DOW EMPLOYEES ACTIVE IN GOVERNMENT PROCUREMENT.

SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS STATES:

"(A) PROTESTORS ARE URGED TO SEEK RESOLUTION OF THEIR COMPLAINTS INITIALLY WITH THE CONTRACTING AGENCY. 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. 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. THE TERM 'FILED' AS USED IN THIS SECTION MEANS RECEIPT IN THE CONTRACTING AGENCY OR IN THE GENERAL ACCOUNTING OFFICE AS THE CASE MAY BE AND PROTESTORS ARE, THEREFORE, CAUTIONED THAT PROTESTS SHOULD BE TRANSMITTED OR DELIVERED IN THAT MANNER WHICH WILL ASSURE EARLIEST RECEIPT."

THE RECORD DEMONSTRATES THAT DOW HAD ADEQUATE NOTICE OF THE POSSIBLE GROUNDS FOR ITS PROTEST. THE NEW CLOSING DATE WAS ESTABLISHED ON AUGUST 16, 1973, AND THE COMPLAINED OF REVISIONS WERE MADE ON OCTOBER 3, 1973. AWARD WAS MADE ON OCTOBER 10, 1973, BUT DOW DID NOT FILE ITS PROTEST WITH OUR OFFICE UNTIL DECEMBER 3, 1973. DOW CONTENDS, HOWEVER, THAT ITS PROTEST SHOULD BE VIEWED AS TIMELY SINCE IT WAS FILED WITHIN 5 DAYS AFTER THE CORPORATION'S ATTORNEY WAS FIRST MADE AWARE OF CIRCUMSTANCES INDICATING POSSIBLE GROUNDS FOR TAKING ACTION. IT IS ALSO URGED THAT IN THE EVENT OF AN ADVERSE RULING ON THE TIMELINESS ISSUE, DOW SHOULD BE GRANTED RELIEF UNDER SECTION 20.2(B) OF OUR RULES WHICH ALLOWS FOR CONSIDERATION BY OUR OFFICE OF UNTIMELY PROTESTS THAT RAISE ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES. WE CONCLUDE THAT CONSIDERATION OF THE PROTEST IS PRECLUDED UNDER SECTION 20.2(A), ABOVE.

FURTHERMORE, THE ISSUES INVOLVED ARE NOT OF A SIGNIFICANT NATURE AS TO WARRANT FURTHER CONSIDERATION UNDER SECTION 20.2(B). SEE 52 COMP. GEN. 20, 23 (1972). NEITHER DO WE SUBSCRIBE TO THE NOVEL VIEW THAT THE 5-DAY FILING LIMITATION BEGINS FROM THE INITIAL DATE OF NOTICE TO THE PROTESTER'S ATTORNEY.

ACCORDINGLY, THE PROTEST WILL NOT BE CONSIDERED BY OUR OFFICE.