B-180483, FEB 27, 1974

B-180483, FEB 27, 1974

BIDDER WHO FILED PROTEST AGAINST ALLEGED SPECIFICATION IMPROPRIETY AFTER BID OPENING IS UNTIMELY UNDER 4 CFR 20.2(A) NOTWITHSTANDING FACT THAT ALLEGED IMPROPRIETIES WERE ORALLY DISCUSSED WITH CONTRACTING OFFICER PRIOR TO BID OPENING AND BIDDER WAS ADVISED TO SUBMIT BID IN ACCORDANCE WITH SPECIFICATION REQUIREMENTS.

TO APPLIED RESEARCH LABORATORIES (ARL):

ARL HAS PROTESTED THE PROPOSED AWARD OF A CONTRACT TO CAMECA INSTRUMENTS, INCORPORATED, UNDER INVITATION FOR BIDS (IFB) N00164-74-B 0058, ISSUED BY THE UNITED STATES NAVAL AMMUNITION DEPOT, CRANE, INDIANA, FOR AN ION MICROPROBE OR A DIRECT IMAGING MASS ANALYZER.

BIDS WERE OPENED UNDER THE SUBJECT SOLICITATION ON NOVEMBER 30, 1973. DECEMBER 10, 1973, ARL FILED A WRITTEN PROTEST WITH THE CONTRACTING OFFICER ALLEGING THAT THE SOLICITATION SPECIFICATION WAS HIGHLY IRREGULAR AND UNFAIR DUE TO THE FACT THAT IT CALLED FOR DIFFERENT PERFORMANCE CRITERIA, DEPENDING UPON THE TYPE OF MASS ANALYZER OFFERED. IT STATED THAT THIS TYPE OF SPECIFICATION APPLIED A "DOUBLE STANDARD" WHICH WAS PREJUDICIAL TO CERTAIN BIDDERS.

THE CONTRACTING OFFICER DENIED THE PROTEST IN A DETAILED LETTER DATED JANUARY 9, 1974, WHICH WAS RECEIVED BY ARL ON JANUARY 15, 1974. THE LETTER ALSO ADVISED ARL THAT ITS PROTEST SHOULD HAVE BEEN SUBMITTED PRIOR TO BID OPENING.

ARL SUBSEQUENTLY PROTESTED TO THE GENERAL ACCOUNTING OFFICE BY MAIL GRAM DATED JANUARY 22, 1974. IT CLAIMS THAT ITS DISSATISFACTION WITH THE SPECIFICATION WAS BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER PRIOR TO BID OPENING, AND THAT IT WAS INFORMED THAT ITS BID WOULD BE NONRESPONSIVE IF NOT SUBMITTED IN ACCORDANCE WITH THE PROVISIONS OF THE INVITATION. ARL COMPLAINS THAT IT WAS THREATENED BY SUCH INSTRUCTIONS WHICH CARRIED THE "STRONG IMPLICATION THAT *** (IT) WOULD HAVE LOST THE AWARD ON POSSIBLE TECHNICALITIES."

SECTION 20.2(A) OF OUR INTERIM PROTEST PROCEDURES AND STANDARDS PROVIDES IN PART:

"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. *** 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."

SINCE ARL PROTESTS AN ALLEGED IMPROPRIETY IN THE SPECIFICATIONS WHICH WAS APPARENT PRIOR TO BID OPENING IT WAS REQUIRED TO FILE SUCH PROTEST EITHER WITH THIS OFFICE OR THE CONTRACTING AGENCY PRIOR TO BID OPENING. WHILE ARL DISCUSSED THE SPECIFICATION WITH THE CONTRACTING OFFICER PRIOR TO BID OPENING, THIS DISCUSSION APPARENTLY WAS NOT UNDERSTOOD BY EITHER THE CONTRACTING OFFICER OR ARL TO BE A PROTEST REQUIRING RESOLUTION. MOREOVER, WE DO NOT THINK IT WAS REASONABLE FOR ARL TO HAVE BEEN INTIMIDATED BY THE CONTRACTING OFFICER'S ADVICE THAT ARL'S BID WOULD BE NONRESPONSIVE IF NOT SUBMITTED IN ACCORDANCE WITH THE INVITATION PROVISIONS. IN THE CIRCUMSTANCES, SUCH ADVICE WAS APPROPRIATE AND WAS APPARENTLY INTENDED TO BE HELPFUL TO ARL.

FOR THE ABOVE REASONS, WE FIND THE PROTEST TO BE UNTIMELY FILED AND WE WILL TAKE NO FURTHER ACTION IN THE MATTER.