B-181215, MAY 21, 1974

B-181215: May 21, 1974

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PROTESTER'S ALLEGATION THAT PROVISION IN SOLICITATION WHICH EXCLUDED OPTION ITEMS FROM CONSIDERATION FOR BID EVALUATION PURPOSES UNLESS OPTIONS FOR ITEMS WERE EXERCISED SIMULTANEOUSLY WITH AWARD OF CONTRACT COULD BE USED BY GOVERNMENT TO FAVOR ONE CONTRACTOR OVER ANOTHER BY CHOOSING TO SELECT CERTAIN OPTIONS OVER OTHERS AFTER BID OPENING. IS UNTIMELY UNDER 4 CFR 20.2(A) AND IS NOT FOR CONSIDERATION BY GAO. SINCE THIS ALLEGED IMPROPRIETY IN THE SOLICITATION WAS APPARENT BEFORE BID OPENING. VIDEO'S PROTEST ARISES UNDER THE FOLLOWING SOLICITATION PROVISION: "AWARD WILL BE MADE ON THE BASIS OF THE LOWEST AGGREGATE BID RECEIVED FOR THE ITEMS AND QUANTITIES ORDERED. 10 AND 11 WILL NOT BE TAKEN INTO CONSIDERATION FOR BID EVALUATION PURPOSES UNLESS THE GOVERNMENT ELECTS TO EXERCISE THE OPTIONS FOR ITEM NOS. 9.

B-181215, MAY 21, 1974

PROTESTER'S ALLEGATION THAT PROVISION IN SOLICITATION WHICH EXCLUDED OPTION ITEMS FROM CONSIDERATION FOR BID EVALUATION PURPOSES UNLESS OPTIONS FOR ITEMS WERE EXERCISED SIMULTANEOUSLY WITH AWARD OF CONTRACT COULD BE USED BY GOVERNMENT TO FAVOR ONE CONTRACTOR OVER ANOTHER BY CHOOSING TO SELECT CERTAIN OPTIONS OVER OTHERS AFTER BID OPENING, IS UNTIMELY UNDER 4 CFR 20.2(A) AND IS NOT FOR CONSIDERATION BY GAO, SINCE THIS ALLEGED IMPROPRIETY IN THE SOLICITATION WAS APPARENT BEFORE BID OPENING.

TO VIDEO RESEARCH CORPORATION:

BY LETTER OF MAY 3, 1974, VIDEO RESEARCH CORPORATION (VIDEO) PROTESTED THE AWARD OF A CONTRACT TO SANGAMO ELECTRIC CO., UNDER SOLICITATION NO. WA4M-0415B, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION (FAA), AND OPENED ON MARCH 6, 1974.

VIDEO'S PROTEST ARISES UNDER THE FOLLOWING SOLICITATION PROVISION:

"AWARD WILL BE MADE ON THE BASIS OF THE LOWEST AGGREGATE BID RECEIVED FOR THE ITEMS AND QUANTITIES ORDERED. FOR A BID TO BE CONSIDERED RESPONSIVE, IT SHALL CONTAIN QUOTATIONS ON ALL QUANTITIES AND ITEMS. HOWEVER, THE FOLLOWING ITEMS SHALL NOT BE CONSIDERED IN THE EVALUATION FOR PURPOSES OF DETERMINING THE LOWEST BIDDER:

ITEM NO. 3(A)5 - ITEM IDENTIFICATIONS

ITEM NO. 4 (B) - DEPOT SPARES

ITEM NO. 8 A-E - TRAINING

OPTION ITEM NOS. 9, 10 AND 11 WILL NOT BE TAKEN INTO CONSIDERATION FOR BID EVALUATION PURPOSES UNLESS THE GOVERNMENT ELECTS TO EXERCISE THE OPTIONS FOR ITEM NOS. 9, 10 AND 11 SIMULTANEOUSLY WITH AWARD OF CONTRACT, IN WHICH CASE BIDS WILL BE EVALUATED FOR PURPOSES OF AWARD ON THE BASIS OF THE TOTAL PRICE FOR THE BASIC QUANTITY AND THE OPTION QUANTITY EXERCISED WITH AWARD.

"FURTHER, FOR BID EVALUATION PURPOSES ONLY FOR ITEM 5(A), THE ESTIMATED NUMBER OF MAN-DAYS SPECIFIED IN THE SCHEDULE WILL BE THE QUANTITY DEEMED TO BE ORDERED."

VIDEO CONTENDS THAT THE AWARD WAS IMPROPER SINCE, UNDER THE PROVISION, THE FAA WAS ABLE TO FAVOR ONE CONTRACTOR OVER ANOTHER BY CHOOSING TO SELECT CERTAIN OPTIONS AFTER THE BIDS WERE OPENED.

INASMUCH AS VIDEO DID NOT FILE A PROTEST WITH OUR OFFICE IN ACCORDANCE WITH SECTION 20.2(A) OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, REQUIRING THAT A PROTEST BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT BEFORE BID OPENING BE FILED WITH OUR OFFICE BEFORE BID OPENING, WE MUST CONSIDER THE PROTEST AS UNTIMELY RAISED AND, THEREFORE, WILL NOT BE CONSIDERED BY OUR OFFICE.