B-180815, JUN 10, 1974

B-180815: Jun 10, 1974

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PROTEST OF OFFEROR UNDER NEGOTIATED PROCUREMENT AGAINST FAILURE OF CONTRACTING OFFICER TO MAKE IMMEDIATE AWARD UPON RECEIPT OF COC FROM SBA (OFFEROR SUBSEQUENTLY DETERMINED INELIGIBLE FOR AWARD UNDER WALSH HEALEY ACT) IS NOT FOR CONSIDERATION ON MERITS AS RECORD SHOWS THAT INITIAL PROTEST TO AGENCY AND PROTEST TO GAO WERE UNTIMELY UNDER GAO BID PROTEST REGULATIONS. IT IS SETTLED THAT RESPONSIBILITY IN THIS REGARD RESTS WITH AGENCY AND DEPARTMENT OF LABOR AND NOT WITH GAO. ALTHOUGH GSE WAS ULTIMATELY DETERMINED THE LOW OFFEROR. BECAUSE GSE WAS A SMALL BUSINESS CONCERN. THE MATTER OF THE FIRM'S CAPACITY TO PERFORM WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION IN ACCORDANCE WITH PARAGRAPH 1 705.4(C) OF ASPR.

B-180815, JUN 10, 1974

PROTEST OF OFFEROR UNDER NEGOTIATED PROCUREMENT AGAINST FAILURE OF CONTRACTING OFFICER TO MAKE IMMEDIATE AWARD UPON RECEIPT OF COC FROM SBA (OFFEROR SUBSEQUENTLY DETERMINED INELIGIBLE FOR AWARD UNDER WALSH HEALEY ACT) IS NOT FOR CONSIDERATION ON MERITS AS RECORD SHOWS THAT INITIAL PROTEST TO AGENCY AND PROTEST TO GAO WERE UNTIMELY UNDER GAO BID PROTEST REGULATIONS. SEE 4 CFR 20.2(A). MOREOVER, INSOFAR AS PROTEST MAY RELATE TO QUESTION OF GSE'S ELIGIBILITY UNDER WALSH-HEALEY, IT IS SETTLED THAT RESPONSIBILITY IN THIS REGARD RESTS WITH AGENCY AND DEPARTMENT OF LABOR AND NOT WITH GAO.

TO GSE DYNAMICS, INC.:

GSE DYNAMICS, INCORPORATED, SUBMITTED A PROPOSAL IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. DAAH01-73-R-1193, ISSUED BY THE UNITED STATES ARMY MISSILE COMMAND, REDSTONE ARSENAL, ALABAMA, FOR THE PROCUREMENT OF ROLLER TRACKS.

ALTHOUGH GSE WAS ULTIMATELY DETERMINED THE LOW OFFEROR, THE CONTRACTING OFFICER FOUND IT TO BE A NONRESPONSIBLE PROSPECTIVE CONTRACTOR UNDER THE APPLICABLE ARMED SERVICES PROCUREMENT REGULATION. HOWEVER, BECAUSE GSE WAS A SMALL BUSINESS CONCERN, THE MATTER OF THE FIRM'S CAPACITY TO PERFORM WAS REFERRED TO THE SMALL BUSINESS ADMINISTRATION FOR CONSIDERATION IN ACCORDANCE WITH PARAGRAPH 1 705.4(C) OF ASPR. IN THE MEANTIME, THE CONTRACTING OFFICER REQUESTED ADDITIONAL PRICE INFORMATION FROM GSE AND ALSO REQUESTED A PRICE ANALYSIS FROM THE AGENCY'S CONTRACT PRICING BRANCH. SBA ISSUED GSE A CERTIFICATE OF COMPETENCY (COC) ON DECEMBER 10, 1973. ON JANUARY 16, 1974, THE PREVIOUSLY REQUESTED PRICE ANALYSIS WAS RECEIVED AND THE DETERMINATION WAS MADE TO AWARD A CONTRACT TO GSE, SUBJECT TO PRICE NEGOTIATIONS. HOWEVER, IN FEBRUARY THE CONTRACTING OFFICER BECAME AWARE OF CERTAIN DEPARTMENT OF LABOR GUIDELINES WHICH RESULTED IN REJECTION OF GSE'S PROPOSAL BASED UPON HIS DETERMINATION THAT GSE WAS INELIGIBLE FOR AWARD UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT (41 U.S.C. 35-45) AND ASPR 12-603.1. GSE WAS SO ADVISED BY A LETTER DATED FEBRUARY 8, 1974, FROM THE CONTRACTING OFFICER.

BY LETTERS DATED MARCH 8, 1974, TO THE CONTRACTING OFFICER AND TO OUR OFFICE GSE PROTESTED REJECTION OF ITS PROPOSAL, STATING THAT "NO EVIDENCE WAS DISCLOSED IN THE LETTER, SO THAT WE ARE AT A LOSS TO UNDERSTAND HOW THE CONTRACTING OFFICER CAME TO SUCH AN ERRONEOUS CONCLUSION." GSE'S PROTEST TO OUR OFFICE IS BASED UPON THE FAILURE OF THE CONTRACTING OFFICER TO MAKE AN IMMEDIATE AWARD UPON RECEIPT OF THE COC FROM SBA.

OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20.2(A), PROVIDE THAT PROTESTS BASED UPON OTHER THAN ALLEGED IMPROPRIETIES IN A SOLICITATION "SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER." WITH REGARD TO PROTESTS INITIALLY FILED WITH THE AGENCY, THE REGULATION PROVIDES THAT ANY SUBSEQUENT PROTEST TO OUR OFFICE MUST BE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION AND "WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY." ALTHOUGH GSE HAS STATED THAT THE CONTRACTING OFFICER'S LETTER OF FEBRUARY 8, 1974, FAILED TO PROVIDE SUFFICIENT INFORMATION AS TO THE BASIS FOR REJECTION OF ITS PROPOSAL, IT IS OUR VIEW AFTER EXAMINATION OF THIS LETTER UPON RECEIPT OF THE ADMINISTRATIVE REPORT IN MAY 1974, THAT GSE WAS SUFFICIENTLY ADVISED OF THE BASIS FOR REJECTION OF ITS PROPOSAL.

SINCE GSE'S PROTESTS BOTH TO THE AGENCY AND TO OUR OFFICE WERE NOT FILED UNTIL SOME 30 DAYS AFTER FEBRUARY 8, 1974, IT IS OUR CONCLUSION THAT THE PROTESTS WERE UNTIMELY AND ARE NOT THEREFORE FOR CONSIDERATION ON THE MERITS.

INSOFAR AS GSE'S PROTEST MAY RELATE TO DISAGREEMENT WITH THE CONTRACTING OFFICER'S DETERMINATION THAT IT IS INELIGIBLE TO RECEIVE THE AWARD UNDER THE WALSH-HEALEY ACT, IT IS WELL ESTABLISHED THAT THE RESPONSIBILITY IN THIS REGARD RESTS IN THE FIRST INSTANCE WITH THE CONTRACTING AGENCY AND IS SUBJECT TO FINAL REVIEW NOT BY OUR OFFICE BUT BY THE DEPARTMENT OF LABOR. B-179509, B-179518, NOVEMBER 6, 1973. THEREFORE, EVEN A TIMELY PROTEST ON THIS BASIS WOULD NOT BE FOR CONSIDERATION BY OUR OFFICE.