B-180464, FEB 15, 1974

B-180464, FEB 15, 1974

BIDDER UNDER TOTAL SMALL BUSINESS SET ASIDE WHO DID NOT PROTEST REJECTION OF BID UNTIL MORE THAN 5 DAYS AFTER NOTICE FROM AGENCY THAT INVITATION WAS CANCELLED AND REQUIREMENTS WOULD BE RESOLICITED ON UNRESTRICTED BASIS BECAUSE OF A MUCH LOWER BID SUBMITTED BY A LARGE BUSINESS IS UNTIMELY UNDER SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS.

TO AUSTIN CARBONIC COMPANY, INC.:

AUSTIN CARBONIC COMPANY, INCORPORATED (AUSTIN CARBONIC) BY LETTER DATED JANUARY 16, 1974, RECEIVED BY OUR OFFICE ON JANUARY 21, 1974, HAS PROTESTED THE ACTION TAKEN BY THE AIR FORCE WITH RESPECT TO INVITATION FOR BIDS (IFB) NO. F 41687-74-09015, ISSUED BY BERGSTROM AIR FORCE BASE, TEXAS. FOR THE REASONS STATED BELOW WE FIND THIS TO BE AN UNTIMELY PROTEST.

THE ABOVE REFERENCED IFB WAS FOR REPAIR OF A FIRE RECORDING SYSTEM AND WAS TOTALLY SET ASIDE FOR PARTICIPATION BY SMALL BUSINESS CONCERNS. BID OPENING WAS HELD ON NOVEMBER 19, 1973, AND 5 BIDS WERE RECEIVED. THE LOW BID AT $6,052 WAS FROM AMERICAN DISTRICT TELEGRAM COMPANY (ADT) AND AUSTIN CARBONIC SUBMITTED THE NEXT LOW BID AT $18,178.75. THE NEXT 3 BIDS, WHICH APPARENTLY WERE FROM SMALL BUSINESS FIRMS, WERE IN THE RANGE OF $22,913 TO $23,389.

BY LETTER OF NOVEMBER 19, 1973, AUSTIN CARBONIC WROTE TO THE PURCHASING ACTIVITY, PROTESTING AN AWARD TO THE LOW BIDDER ON THE BASIS THAT IT WAS A LARGE BUSINESS FIRM AND THAT ADT'S LOW BID EITHER RESULTED FROM A MISTAKE OR THE COMPANY WAS ATTEMPTING "TO RUN EVERYBODY OUT OF BUSINESS." LETTER OF JANUARY 2, 1974, THE AGENCY ADVISED THE PROTESTER THAT THE SOLICITATION HAD BEEN CANCELLED ON THE BASIS THAT ALL RESPONSIVE BIDS WERE UNREASONABLE AS TO PRICE. THE AGENCY FURTHER ADVISED THE PROTESTER THAT BIDS WOULD BE SOLICITED IN THE NEAR FUTURE WITHOUT THE SMALL BUSINESS RESTRICTION. (IT IS REPORTED BY THE AIR FORCE THAT AN UNRESTRICTED SOLICITATION FOR THE REQUIREMENT WAS ISSUED ON JANUARY 25, 1974 AND THAT BID OPENING IS SCHEDULED FOR FEBRUARY 26, 1974.)

SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS 4 CFR 20.2(A), STATES AS FOLLOWS:

"(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."

SINCE AUSTIN CARBONIC AND BERGSTROM AIR FORCE BASE ARE BOTH LOCATED IN THE VICINITY OF AUSTIN, TEXAS, IT SEEMS REASONABLE TO ASSUME THAT AUSTIN CARBONIC RECEIVED THE JANUARY 2, 1974, LETTER FROM THE AIR FORCE WITHIN A FEW DAYS AFTER MAILING BY THE BASE. (A TIME STAMP ON THE LETTER INDICATES RECEIPT ON JANUARY 3, 1974, BUT IT HAS NOT BEEN ESTABLISHED THAT THIS IS AUSTIN CARBONIC'S STAMP.) IN ANY EVENT IT SEEMS CLEAR THAT AUSTIN CARBONIC'S LETTER OF JANUARY 16, 1974, WHICH WAS RECEIVED BY OUR OFFICE ON JANUARY 21, 1974, WAS NOT FILED UNTIL MORE THAN 5 DAYS AFTER AUSTIN CARBONIC RECEIVED THE AGENCY'S LETTER OF JANUARY 2, 1974; THEREFORE, THE PROTEST IS UNTIMELY. THIS RESULT FOLLOWS WHETHER THE AGENCY'S LETTER OF JANUARY 2, 1974, IS CONSIDERED AS ADVERSE AGENCY ACTION ON AUSTIN CARBONIC'S PROTEST OF NOVEMBER 19, 1973, OR AS PROVIDING INFORMATION WHICH RAISED A BASIS FOR PROTEST.

ACCORDINGLY, OUR OFFICE WILL NOT TAKE ANY FURTHER ACTION REGARDING THE MERITS OF THE OBJECTIONS RAISED BY AUSTIN CARBONIC RELATIVE TO THE CANCELLATION OF THE SUBJECT INVITATION.

AUSTIN CARBONIC HAS INFORMALLY ADVISED US THAT IF THE BID PRICES ON THE RESOLICITATION INDICATE THAT THE SET ASIDE WAS UNJUSTIFIABLY CANCELLED IT INTENDS TO RAISE THIS MATTER AT A FUTURE TIME. IT SHOULD BE NOTED THAT ANY SUCH PROTEST UNDER THE RESOLICITATION SHOULD BE FILED IN ACCORDANCE WITH THE ABOVE-CITED TIME LIMITS.