B-181917, NOV 14, 1974

B-181917, NOV 14, 1974

WHERE PROTESTER WAS INFORMED BY LETTER DATED JULY 9, RECEIVED BY PROTESTER JULY 10, THAT ITS BID WAS BEING REJECTED AS NONRESPONSIVE BECAUSE IT WAS CONSIDERED TO BE QUALIFIED, PROTEST RECEIVED BY GAO ON JULY 29, IS UNTIMELY AND WILL NOT BE CONSIDERED SINCE, UNDER 4 C.F.R. SEC. 20.2(A) (1974) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS, PROTEST MUST BE FILED WITHIN 5 DAYS AFTER BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. FURTHERMORE, ISSUES RAISED ARE NOT SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES AND PROTEST WILL NOT BE CONSIDERED UNDER 4 C.F.R. SEC. 20.2(B) (1974).

COMMUNICATIONS CONTRACTORS, INC.:

ON JUNE 3, 1974, THE UNITED STATES ATOMIC ENERGY COMMISSION (AEC) ISSUED INVITATION FOR BIDS (IFB) NO. 291-74-33 FOR AN AUTOMATED COOLING WATER TREATMENT CONTROL SYSTEM. THE BID OPENING DATE WAS JUNE 25, 1974, AT 2:00 P.M. THE LOW BID RECEIVED WAS FROM COMMUNICATIONS CONTRACTORS, INC. (CCI).

HOWEVER, INSERTED WITH CCI'S BID WAS A SUPPLIER DELIVERY CLAUSE WHICH STATED AS FOLLOWS:

"IN VIEW OF THE 120 DAY COMPLETION CLAUSE, COMMUNICATIONS CONTRACTORS, INC. WILL MAKE EVERY EFFORT TO EXPEDITE ALL MATERIALS FROM EACH SUPPLIER. HOWEVER, IN THE EVENT THERE ARE EQUIPMENT DELAYS BEYOND OUR CONTROL, WE CAN NOT BE HELD RESPONSIBLE FOR ANY DELAY IN CONTRACT COMPLETION DUE TO THESE FACTORS."

UPON DISCOVERY OF THIS INSERTION, AEC ADVISED CCI THAT THE CLAUSE CONSTITUTED A QUALIFYING STATEMENT WHICH WAS A MATERIAL DEVIATION FROM THE GENERAL PROVISIONS SUFFICIENT TO WARRANT REJECTION OF THE BID. CCI, BY LETTER OF JULY 3, OFFERED TO WITHDRAW THE CLAUSE FROM THE BID. AEC, HOWEVER, REFUSED CCI'S OFFER BY LETTER OF JULY 9, RECEIVED BY CCI ON JULY 10, WHICH FORMALLY REJECTED CCI'S BID AS NONRESPONSIVE AND INFORMED CCI OF ITS RIGHT TO PROTEST FURTHER TO OUR OFFICE. CCI THEN PROTESTED TO OUR OFFICE ON JULY 24, SUBJECT PROTEST BEING RECEIVED ON JULY 29. IN A SUBSEQUENT LETTER DATED JULY 25, CCI ACKNOWLEDGED THAT ITS PROTEST WAS UNTIMELY FILED UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2(A) (1974), BUT REQUESTED THAT ITS PROTEST BE HEARD IN COMPLIANCE WITH 4 C.F.R. SEC. 20.2(B) (1974).

THERE APPEARS TO BE NO DISPUTE AS CONCERNS THE UNTIMELY FILING OF CCI'S PROTEST. WITH REGARD TO THE PROTEST BEING CONSIDERED UNDER SEC. 20.2(B) (1974), THIS SECTION STATES THAT FOR "GOOD CAUSE SHOWN," OR WHERE SIGNIFICANT ISSUES TO PROCUREMENT PRACTICES OR PROCEDURES ARE RAISED, THIS OFFICE MAY CONSIDER ANY PROTEST WHICH IS OTHERWISE UNTIMELY. ALTHOUGH CCI URGES THAT WE CONSIDER THE PROTEST UNDER THIS PROVISION, WE DO NOT BELIEVE ANY BASIS HAS BEEN STATED FOR INVOKING EITHER EXCEPTION. THE QUESTION OF QUALIFICATION OF A BID HAS BEEN BEFORE OUR OFFICE SEVERAL TIMES IN THE PAST. SEE MATTER OF C. RAY BEEBE & ASSOCIATES, B-179435, OCTOBER 15, 1974; MATTER OF E. M. GOSTOVICH CONSTRUCTION COMPANY, B-180362, FEBRUARY 14, 1974; AND B 160698, FEBRUARY 28, 1967. THEREFORE, WE ARE OF THE VIEW THAT THE ISSUES RAISED BY THIS PROTEST ARE NOT SIGNIFICANT TO GENERAL PROCUREMENT PRACTICES OR PROCEDURES.

ACCORDINGLY, WE MUST DECLINE TO CONSIDER THEM ON THE MERITS.