B-180434, APR 12, 1974, 53 COMP GEN 771

B-180434: Apr 12, 1974

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CONTRACTS - PROTESTS - TIMELINESS - SOLICITATION IMPROPRIETIES PROTEST BASED ON ALLEGED IMPROPRIETIES IN INVITATION WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED WITH GAO PRIOR TO BID OPENING OR WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION ON PROTEST. AS PROTESTER IS ONLY PROTECTING ITS POSITION. CONTRACTS - SPECIFICATIONS - DELIVERY PROVISIONS - SUFFICIENCY PREPARATION AND ESTABLISHMENT OF DELIVERY PROVISIONS TO REFLECT NEEDS OF GOVERNMENT ARE MATTERS PRIMARILY WITHIN JURISDICTION OF PROCURING AGENCY. REQUIREMENTS - CONFLICT CONFLICT BETWEEN "REQUIREMENTS" GENERAL PROVISION AND "INDEFINITE QUANTITY" GENERAL PROVISION WAS NOT PREJUDICIAL TO PROTESTER. AS PROTESTER WAS AWARE OF AGENCY POSITION PRIOR TO BID OPENING AND PREPARED ITS BID IN ACCORDANCE WITH THIS POSITION.

B-180434, APR 12, 1974, 53 COMP GEN 771

CONTRACTS - PROTESTS - TIMELINESS - SOLICITATION IMPROPRIETIES PROTEST BASED ON ALLEGED IMPROPRIETIES IN INVITATION WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED WITH GAO PRIOR TO BID OPENING OR WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION ON PROTEST; HOWEVER, SUBMISSION OF BID DURING THIS PERIOD DOES NOT AMOUNT TO WAIVER OF RIGHT TO PROTEST AFTER BID OPENING, AS PROTESTER IS ONLY PROTECTING ITS POSITION, NOT HAVING RECEIVED WRITTEN FINAL DECISION FROM PROCURING AGENCY ON ALL ISSUES PROTESTED. CONTRACTS - SPECIFICATIONS - DELIVERY PROVISIONS - SUFFICIENCY PREPARATION AND ESTABLISHMENT OF DELIVERY PROVISIONS TO REFLECT NEEDS OF GOVERNMENT ARE MATTERS PRIMARILY WITHIN JURISDICTION OF PROCURING AGENCY, SUBJECT TO QUESTION BY GAO ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. CONTRACTS - REQUIREMENTS - INDEFINITE QUANTITY V. REQUIREMENTS - CONFLICT CONFLICT BETWEEN "REQUIREMENTS" GENERAL PROVISION AND "INDEFINITE QUANTITY" GENERAL PROVISION WAS NOT PREJUDICIAL TO PROTESTER, AS PROTESTER WAS AWARE OF AGENCY POSITION PRIOR TO BID OPENING AND PREPARED ITS BID IN ACCORDANCE WITH THIS POSITION; THEREFORE FAILURE TO ISSUE AMENDMENT TO CLARIFY CONFLICT DOES NOT AFFECT THE LEGALITY OF THE PROCUREMENT.

IN THE MATTER OF EAST BAY AUTO SUPPLY, INC.; SAM'S AUTO SUPPLY, APRIL 12, 1974:

ON JANUARY 15, 1974, EAST BAY AUTO SUPPLY, INC (EAST BAY) PROTESTED ANY AWARD UNDER INVITATION FOR BIDS (IFB) NO. F26600-74-09006. THE PROTEST WAS BASED ON THE ALLEGATIONS THAT (A) THE IFB REQUIRED UNREALISTIC AND OBJECTIVELY IMPOSSIBLE DELIVERY FRAMES WHICH WERE NOT THE GOVERNMENT'S MINIMUM REQUIREMENTS, AND (B) THE IFB, WITH ITS FIVE MODIFICATIONS, WAS CONFUSING AND MISLEADING TO PROSPECTIVE BIDDERS. THE IFB WAS ISSUED ON NOVEMBER 12, 1973, AT NELLIS AIR FORCE BASE, NEVADA.

EAST BAY PROTESTED TO THE AIR FORCE PRIOR TO BID OPENING ON DECEMBER 4, 1973, THAT THE SPECIFICATIONS, AS STATED, WERE UNDULY RESTRICTIVE, UNREALISTIC AND CONFUSING. THE AIR FORCE, ALTHOUGH MODIFYING THE IFB BY AMENDMENT NUMBER MO-5, OPENED THE BIDS NOTWITHSTANDING EAST BAY'S PROTEST. WHEN BIDS WERE OPENED ON JANUARY 8, 1973, AND ADJUSTED TO COMPLY WITH AMENDMENT MO-5, SAM'S AUTO SUPPLY HAD SUBMITTED THE LOW BID OF $274,932.61. EAST BAY'S BID OF $279,050.62 WAS THE THIRD LOW BID. IT WAS AT THIS POINT IN TIME THAT EAST BAY PROTESTED TO OUR OFFICE. AWARD WAS MADE TO SAM'S AUTO SUPPLY ON MARCH 1, 1974.

THE INTERIM BID PROTEST PROCEDURES AND STANDARDS OF THIS OFFICE, AS SET FORTH IN TITLE 4, CODE OF FEDERAL REGULATIONS (CFR), REQUIRE THAT A PROTEST BASED ON ALLEGED IMPROPRIETIES IN AN INVITATION WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING. THE OPENING OF THE BIDS BY THE PROCURING ACTIVITY, WITHOUT TAKING COMPLETE CORRECTIVE ACTION ON THE PROTESTED ITEMS, IS DEEMED BY OUR OFFICE TO BE THE "ADVERSE AGENCY ACTION" FROM WHICH TIME A PARTY HAS 5 WORKING DAYS TO FILE ITS PROTEST BEFORE OUR OFFICE. AS BIDS WERE OPENED ON JANUARY 8, 1974, EAST BAY WOULD HAVE HAD 5 WORKING DAYS, OR UNTIL JANUARY 15, 1974, TO FILE ITS PROTEST. SINCE EAST BAY DID PROTEST ON JANUARY 15, ITS SUBMISSION WOULD APPEAR TO HAVE BEEN TIMELY FILED.

HOWEVER, WE ARE FACED WITH THE PROBLEM THAT EAST BAY HAS SUBMITTED A BID UNDER THE IFB. THERE IS DICTA IN OUR OPINION B-175698, AUGUST 7, 1972, THAT 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. IT MAY HAVE APPEARED THAT OUR OFFICE WAS OF THE OPINION THAT BY SUBMITTING A BID UNDER AN ALLEGEDLY IMPROPER IFB, THE PARTY SUBMITTING THE BID WOULD BE, IN EFFECT, WAIVING ANY RIGHTS IT MAY HAVE TO LATER PROTEST THE SPECIFICATIONS OF THE IFB. HOLD OTHERWISE MIGHT BE TANTAMOUNT TO ALLOWING A PARTY "TWO BITES AT THE APPLE" IN THAT IT COULD FIRST DETERMINE WHETHER OR NOT IT HAD RECEIVED THE AWARD UNDER THE IFB AND IF NOT, THEN PROTEST AWARD TO ANY FIRM BASED ON THE DEFECTIVE SPECIFICATIONS.

HOWEVER, THE ABOVE DECISION CAN BE DISTINGUISHED FROM THE PRESENT SITUATION. IN B-175698, SUPRA, THE PROTESTER HAD NOT INITIALLY FILED ITS PROTEST WITH THE AGENCY INVOLVED. INSTEAD, A PROTEST WAS FILED 13 DAYS AFTER BID OPENING DIRECTLY WITH OUR OFFICE. THE PROTEST WAS DENIED AS BEING UNTIMELY FILED. IN THE PRESENT SITUATION, THE INITIAL PROTEST WAS LODGED WITH THE AIR FORCE 5 WEEKS BEFORE BID OPENING. ARMED SERVICES PROCUREMENT REGULATION 2-407.8(A)(1) REQUIRES THAT "THE PROTESTER SHALL BE NOTIFIED IN WRITING OF THE FINAL DECISION ON THE WRITTEN PROTEST." WRITTEN FINAL DECISION OF THIS NATURE CONCERNING ALL ISSUES PROTESTED WAS NOT UNDERTAKEN ON EAST BAY'S PROTEST. THEREFORE, EAST BAY SHOULD NOT BE PENALIZED FOR PROTECTING ITSELF BY SUBMITTING A BID WHEN IT HAD NO WAY OF DETERMINING THE FINAL STATUS OF ALL ISSUES PROTESTED UNTIL THE TIME WHEN THE BIDS WERE ACTUALLY OPENED. ACCORDINGLY, IT IS OUR OPINION THAT EAST BAY HAS NOT WAIVED ITS RIGHT TO PROTEST THIS PROCUREMENT BY SUBMITTING A BID, AND IS ENTITLED TO A DECISION ON THE MERITS OF THOSE ISSUES RAISED IN A TIMELY MANNER.

AS INDICATED ABOVE, EAST BAY'S FIRST CONTENTION CHALLENGES THE VALIDITY OF THE SOLICITATION SPECIFICATIONS WITH RESPECT TO DELIVERY REQUIREMENTS. THE PROCUREMENT OFFICIALS HAVE DETERMINED THAT THE MANNER OF DELIVERY SPECIFIED IN THE SOLICITATION IS SUFFICIENT TO MEET THE GOVERNMENT'S MINIMUM NEEDS. IN THIS REGARD, OUR OFFICE HAS CONSISTENTLY TAKEN THE POSITION THAT THE PREPARATION AND ESTABLISHMENT OF SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCUREMENT AGENCY, TO BE QUESTIONED BY OUR OFFICE ONLY WHEN NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. 38 COMP. GEN. 190 (1958); 37 ID. 757 (1958); 17 ID. 554 (1938); B-176420, JANUARY 4, 1973. WE RECOGNIZE THAT GOVERNMENT PROCUREMENT OFFICIALS, WHO ARE FAMILIAR WITH THE CONDITIONS UNDER WHICH SUPPLIES OR EQUIPMENT HAVE BEEN DELIVERED IN THE PAST, ARE GENERALLY IN THE BEST POSITION TO KNOW THE GOVERNMENT'S NEEDS AND BEST ABLE TO DRAFT APPROPRIATE SPECIFICATIONS. THUS, WE HAVE HELD THAT THE GOVERNMENT CANNOT BE PLACED IN THE POSITION OF ALLOWING BIDDERS TO DICTATE SPECIFICATIONS WHICH WOULD HAVE THE EFFECT OF REQUIRING DELIVERY SCHEDULES NOT MEETING THE CONSIDERED NEEDS OF THE PROCUREMENT AGENCY.

BASED ON THE RECORD BEFORE US, WE FIND THAT DUE CONSIDERATION HAD BEEN GIVEN TO THE FACT THAT EACH OF THE PRECEDING INVITATIONS HAD REQUIRED DELIVERY WITHIN 3 WORK DAYS, WHEREAS THE PRESENT INVITATION ALLOWS 4. THERE IS NO RECORD OF ANY PROTEST FROM ANY OTHER BIDDERS CONCERNING THE PRIOR DELIVERY SPECIFICATIONS AND REQUESTING RELIEF FROM THIS TIME FRAME. MOREOVER, EAST BAY HAS BEEN AWARDED FOUR SUCCESSIVE COPARS CONTRACTS, EACH AT NELLIS AFB, AND EACH WITH TERMS THE SAME AS THOSE IN THE SOLICITATION IN QUESTION. NONE OF THE PREVIOUS DELIVERY REQUIREMENTS WAS EVER FORMALLY PROTESTED BY EAST BAY. THEREFORE, WE BELIEVE THAT THE PROCURING AGENCY PROPERLY EXERCISED ITS DISCRETION IN DRAFTING THE SPECIFICATIONS AND WE WILL NOT QUESTION THIS DETERMINATION.

EAST BAY NEXT CONTENDS THAT THE SOLICITATION WAS CONFUSING AND MISLEADING, ESPECIALLY AS TO WHAT QUANTITIES MIGHT BE INVOLVED UNDER THIS PROCUREMENT. EAST BAY STATES THAT THERE WAS A CONFLICT BETWEEN GENERAL PROVISION 49 ("REQUIREMENTS"), AND GENERAL PROVISION 50 ("INDEFINITE QUANTITY"). THIS POINT WAS BROUGHT TO THE ATTENTION OF THE PROCURING ACTIVITY ON DECEMBER 4, 1973. THE RECORD DISCLOSES THAT MR. LOBENBERG OF EAST BAY TELEPHONED TSGT EVERETT TO CLARIFY THIS POINT. AT 0945 HOURS THAT SAME DATE, TSGT EVERETT RETURNED MR. LOBENBERG'S CALL AND THE "MEMO FOR RECORD" STATES AS FOLLOWS:

*** I PHONED MR. LOBENBERG, INFORMED HIM THAT MRS. HILLHOUSE WAS IN AGREEMENT WITH HIM, THAT THE INDEFINITE QUANTITY CLAUSE SHOULD HAVE NOT BEEN INCLUDED IN THE GENERAL PROVISIONS AND THAT IT WOULD BE DELETED BY A SUBSEQUENT AMENDMENT TO THE IFB.

/S/ HERMAN L. EVERETT, TSGT

HOWEVER, AN AMENDMENT TO THIS EFFECT WAS NOT ISSUED BY THE PROCURING ACTIVITY. THE AIR FORCE RECOGNIZES THAT IT WOULD HAVE BEEN PREFERABLE TO DELETE THE "INDEFINITE QUANTITY" PROVISION PRIOR TO BID OPENING, BUT ARGUES THAT THE FAILURE TO DO SO IS NOT OF SUFFICIENT CONSEQUENCE TO REQUIRE CANCELLATION OF THE IFB AND READVERTISEMENT. WE ARE OF THE SAME OPINION. EAST BAY WAS ON NOTICE AS A RESULT OF THE DECEMBER 4, 1973 CONVERSATION AS TO THE PROCURING AGENCIES VIEW ON THE CONFLICT BETWEEN THE GENERAL PROVISIONS. GIVEN THIS FACT, EAST BAY PREPARED ITS BID AS IF THE IFB CALLED FOR A REQUIREMENTS CONTRACT. WHILE IT MAY BE TRUE THAT EAST BAY WOULD HAVE OFFERED THE GOVERNMENT A BETTER DISCOUNT ON PARTS IF THIS WERE AN INDEFINITE QUANTITY REQUIREMENT, WE HAVE ALREADY STATED THAT IT IS THE GOVERNMENT AND NOT THE BIDDER THAT DICTATES THE SPECIFICATIONS. THEREFORE, SINCE THIS WAS IN FACT A REQUIREMENTS CONTRACT AND EAST BAY FORMULATED ITS BID ON THIS BASIS, WE FAIL TO FIND ANY PREJUDICE TO EAST BAY THROUGH THE FAILURE TO ISSUE THE AMENDMENT.

AS CONCERNS THE GENERAL CONTENTION THAT THE IFB WAS CONFUSING AND AMBIGUOUS, WE FIND THIS ALLEGATION TO HAVE BEEN RAISED IN AN UNTIMELY MANNER. ANY AMBIGUITIES OR UNCERTAINTIES IN REGARD TO THE SOLICITATION SHOULD HAVE BEEN RAISED WITH THE PROCURING ACTIVITY PRIOR TO BID OPENING, AS REQUIRED BY 4 CFR 20.2(A). THOSE NOT SO RAISED MAY NOT BE RAISED BEFORE OUR OFFICE SUBSEQUENT TO BID OPENING. THIS GENERAL ALLEGATION WAS NOT RAISED IN THE DECEMBER 4 LETTER TO THE PROCURING ACTIVITY, NOR DO WE FIND ANY OTHER EVIDENCE OF THIS POINT BEING RAISED PRIOR TO BID OPENING. AS THIS POINT WAS NOT RAISED IN A TIMELY FASHION, WE DECLINE TO CONSIDER THIS GENERAL ALLEGATION ON ITS MERITS.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.