B-180777, MAY 13, 1974

B-180777: May 13, 1974

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PROTEST BASED UPON INCLUSION OF ALLEGED RESTRICTIVE MILITARY SPECIFICATIONS IN SOLICITATION IS UNTIMELY UNDER SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS BECAUSE PROTESTER DID NOT RAISE MATTER OF ALLEGED IMPROPRIETY PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS. AWARD WAS MADE TO THE LEWIS ENGINEERING COMPANY ON FEBRUARY 26. MOODY CONCLUDED THAT THE INCLUSION OF THESE MILITARY SPECIFICATIONS IN THE SOLICITATION WAS UNDULY RESTRICTIVE ON COMPETITION IN THAT ONLY THE ORIGINAL MANUFACTURER IS ABLE TO COMPLY WITH THE SPECIFICATIONS. SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS STATES IN PERTINENT 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 ***.".

B-180777, MAY 13, 1974

PROTEST BASED UPON INCLUSION OF ALLEGED RESTRICTIVE MILITARY SPECIFICATIONS IN SOLICITATION IS UNTIMELY UNDER SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS BECAUSE PROTESTER DID NOT RAISE MATTER OF ALLEGED IMPROPRIETY PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS.

TO D. MOODY & CO., INC.:

BY TELEGRAM DATED MARCH 5, 1974, D. MOODY & CO., INC. (MOODY), PROTESTED THE REJECTION OF ITS BID ON SOLICITATION DSA-400-74-R-1714, ISSUED ON AUGUST 15, 1973, BY THE DEFENSE SUPPLY AGENCY, DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA, WITH THE CLOSING DATE FOR RECEIPT OF PROPOSALS SET FOR SEPTEMBER 5, 1973. AWARD WAS MADE TO THE LEWIS ENGINEERING COMPANY ON FEBRUARY 26, 1974.

BY LETTER DATED MARCH 21, 1974, MOODY EXPLAINED THAT ITS PROTEST CONCERNED THE INCLUSION OF MILITARY SPECIFICATIONS MIL-I-7075A AND MIL I- 7070 IN THE SOLICITATION BECAUSE THESE SPECIFICATIONS IMPOSED TEST CONDITIONS WITH WHICH DEALERS OR DISTRIBUTORS, SUCH AS MOODY, FIND IT IMPOSSIBLE TO COMPLY. MOODY CONCLUDED THAT THE INCLUSION OF THESE MILITARY SPECIFICATIONS IN THE SOLICITATION WAS UNDULY RESTRICTIVE ON COMPETITION IN THAT ONLY THE ORIGINAL MANUFACTURER IS ABLE TO COMPLY WITH THE SPECIFICATIONS.

SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS STATES IN PERTINENT 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 ***."

SINCE MOODY DID NOT PROTEST THE ALLEGED IMPROPRIETY PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS, THE PROTEST IS UNTIMELY.

THEREFORE, WE ARE CLOSING OUR FILE ON THE MATTER TODAY.