B-182242, MAR 5, 1975

B-182242: Mar 5, 1975

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PROTEST BY 8(A) MINORITY CONTRACTOR AGAINST COMPETITIVE SOLICITATION ON BASIS THAT IT (THE PROTESTER) HAD BEEN PROMISED AWARD ON SOLE-SOURCE BASIS IS UNTIMELY UNDER 4 C.F.R. ALLOWING CONSIDERATION OF UNTIMELY PROTESTS WHERE GOOD CAUSE IS SHOWN OR SIGNIFICANT LEGAL ISSUES ARE RAISED. SINCE MISUNDERSTANDING OF PROTEST PROCEDURES IS NOT CONSIDERED GOOD CAUSE AND NO SIGNIFICANT LEGAL ISSUE FOUND SINCE NEITHER THE LAW GOVERNING 8(A) PROCUREMENTS. THERE IS MORE THAN ONE QUALIFIED 8(A) FIRM AND REVIEW OF RECORD INDICATES NO ACTION. WHICH WAS INCONSISTENT WITH OR CONTRARY TO GOVERNMENT'S POLICIES FOR 8(A) PROCUREMENTS. DATA TRANSFORMATION INFERRED THAT THE ISSUANCE OF THE SOLICITATION ON A COMPETITIVE BASIS WAS INCONSISTENT WITH THE POLICIES OF THE GOVERNMENT FOR 8(A) PROCUREMENTS.

B-182242, MAR 5, 1975

1. PROTEST BY 8(A) MINORITY CONTRACTOR AGAINST COMPETITIVE SOLICITATION ON BASIS THAT IT (THE PROTESTER) HAD BEEN PROMISED AWARD ON SOLE-SOURCE BASIS IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974), SINCE PROTESTER KNEW OF AWARD TO ANOTHER FIRM NO LATER THAN AUGUST 20 BUT DID NOT FILE PROTEST WITH GAO UNTIL SEPTEMBER 17, 1974. 2. PROTEST NOT FOR CONSIDERATION UNDER SEC. 20.2(B) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2(B) (1974), ALLOWING CONSIDERATION OF UNTIMELY PROTESTS WHERE GOOD CAUSE IS SHOWN OR SIGNIFICANT LEGAL ISSUES ARE RAISED, SINCE MISUNDERSTANDING OF PROTEST PROCEDURES IS NOT CONSIDERED GOOD CAUSE AND NO SIGNIFICANT LEGAL ISSUE FOUND SINCE NEITHER THE LAW GOVERNING 8(A) PROCUREMENTS, 15 U.S.C. SEC. 637(A) (1970), NOR IMPLEMENTING REGULATIONS, 13 C.F.R. SEC. 124.8-1 AND 2 (1974), PRECLUDE COMPETITIVE PROCUREMENTS WHERE, AS IN PRESENT CASE, THERE IS MORE THAN ONE QUALIFIED 8(A) FIRM AND REVIEW OF RECORD INDICATES NO ACTION, BY EITHER AEC OR SBA, WHICH WAS INCONSISTENT WITH OR CONTRARY TO GOVERNMENT'S POLICIES FOR 8(A) PROCUREMENTS.

DATA TRANSFORMATION CORP.:

BY LETTER OF AUGUST 2, 1974, TO THE CHIEF OF THE PROCUREMENT AND CONTRACTING SECTION, DIVISION OF HEADQUARTERS SERVICE, UNITED STATES ATOMIC ENERGY COMMISSION, DATA TRANSFORMATION CORP. PROTESTED THE POSSIBLE AWARD OF A CONTRACT TO DUDLEY GILL ASSOCIATES UNDER A COMPETITIVE SOLICITATION (NO. WS-74-784) SET ASIDE FOR MINORITY BUSINESS ENTERPRISES AND ISSUED BY THE ATOMIC ENERGY COMMISSION (AEC) IN CONJUNCTION WITH THE SMALL BUSINESS ADMINISTRATION (SBA). DATA TRANSFORMATION BASES ITS PROTEST ON THE ALLEGATION THAT AEC, RATHER THAN MAKING THE AWARD TO DATA TRANSFORMATION ON A SOLE-SOURCE BASIS AS IT HAD PROMISED TO DO, ISSUED THE SOLICITATION ON A COMPETITIVE BASIS. ALSO, DATA TRANSFORMATION INFERRED THAT THE ISSUANCE OF THE SOLICITATION ON A COMPETITIVE BASIS WAS INCONSISTENT WITH THE POLICIES OF THE GOVERNMENT FOR 8(A) PROCUREMENTS.

THIS OFFICE RECEIVED AN INFORMATION COPY OF THE ABOVE-MENTIONED LETTER ON AUGUST 8, 1974. SBA ALSO RECEIVED AN INFORMATION COPY OF THE LETTER. THE RECORD INDICATES THAT BY LETTER OF AUGUST 12, 1974, AEC REPLIED TO DATA TRANSFORMATION'S AUGUST 2 LETTER, EXPLAINING WHY DUDLEY GILL WAS RECOMMENDED FOR AWARD. WE WERE ADVISED THAT DATA TRANSFORMATION RECEIVED AEC'S AUGUST 12 LETTER ON AUGUST 14, 1974. THE RECORD ALSO INDICATES THAT SBA, BY AN UNDATED LETTER, RESPONDED TO DATA TRANSFORMATION'S AUGUST 2 LETTER. HOWEVER, IT WAS NOT UNTIL JANUARY 17, 1975, DURING A MEETING BETWEEN REPRESENTATIVES OF DATA TRANSFORMATION AND THIS OFFICE, THAT WE WERE ADVISED THAT DATA TRANSFORMATION HAD RECEIVED SBA'S RESPONSE ON AUGUST 20, 1974.

BY LETTER OF AUGUST 15, 1974, THIS OFFICE ACKNOWLEDGED RECEIPT OF DATA TRANSFORMATION'S LETTER OF AUGUST 2 AND ADVISED DATA TRANSFORMATION THAT IF IT WISHED TO FILE A PROTEST WITH THE GENERAL ACCOUNTING OFFICE (GAO), IT MUST DO SO WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION AND THAT THE COMMUNICATION MUST SPECIFICALLY REQUEST A RULING BY THE COMPTROLLER GENERAL. IT WAS NOT UNTIL SEPTEMBER 17, 1974, THAT OUR OFFICE RECEIVED A LETTER DATED SEPTEMBER 16, 1974, FROM DATA TRANSFORMATION STATING THAT IT WISHED TO CONTINUE ITS PROTEST, WHICH IN FACT IT HAD NOT YET FILED WITH GAO, AGAINST AWARD TO DUDLEY GILL. WE NOTE THAT THERE APPEARS TO HAVE BEEN SOME MISUNDERSTANDING ON THE PART OF DATA TRANSFORMATION AS TO THE COMPTROLLER GENERAL'S ROLE IN OUR BID PROTEST PROCEDURES, AS EVIDENCED BY THE STATEMENT IN ITS LETTER OF SEPTEMBER 16 THAT "YOUR LETTER OF AUGUST 15, 1974, STATES THAT A PROTEST MUST RECEIVE A RULING BY THE COMPTROLLER GENERAL. WE ARE STILL AWAITING SAID RULING ***." HOWEVER, OUR LETTER OF AUGUST 15, 1974, SPECIFICALLY ADVISED DATA TRANSFORMATION THAT PURSUANT TO SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, A COPY OF WHICH WAS FURNISHED IN THE AUGUST 15 LETTER, ANY PROTEST TO GAO MUST BE MADE WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION.

THE RECORD INDICATES THAT DATA TRANSFORMATION KNEW AS EARLY AS AUGUST 14, 1974, WHEN IT RECEIVED AEC'S AUGUST 12 LETTER, THAT DUDLEY GILL HAD BEEN RECOMMENDED FOR AWARD AND CERTAINLY IT KNEW NO LATER THAN AUGUST 20, 1974, WHEN IT RECEIVED SBA'S LETTER, THAT IT WOULD NOT RECEIVE THE AWARD. ITS LETTER OF SEPTEMBER 16, 1974, DATA TRANSFORMATION STATES THAT IT WAS NOT SHOWN HOW OR WHY ITS PROPOSAL WAS INFERIOR TO THE PROPOSAL SUBMITTED BY DUDLEY GILL. THE RECORD INDICATES THAT THIS QUESTION WAS RAISED FOR THE FIRST TIME IN THE SEPTEMBER 16 LETTER. DATA TRANSFORMATION COULD HAVE RAISED THIS QUESTION AS EARLY AS AUGUST 2. SINCE THE PERIOD FROM AUGUST 20 TO SEPTEMBER 16 EXCEEDS 5 DAYS, DATA TRANSFORMATION'S PROTEST MUST BE CONSIDERED AS BEING UNTIMELY.

UNDER SECTION 20.2(B) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, THE COMPTROLLER GENERAL, MAY FOR GOOD CAUSE SHOWN, OR WHERE HE DETERMINES THAT A PROTEST RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES, CONSIDER ANY PROTEST WHICH IS NOT FILED TIMELY. HOWEVER, WE DO NOT BELIEVE THE PRESENT PROTEST CAN BE CONSIDERED UNDER EITHER EXCEPTION. A MISUNDERSTANDING OF OUR RELATIVELY SIMPLE PROTEST PROCEDURES IS NOT "GOOD CAUSE" FOR NOT FILING A TIMELY PROTEST. NEITHER DO WE THINK THAT THE PROTEST RAISES SIGNIFICANT LEGAL ISSUES SINCE NEITHER THE LAW, 15 U.S.C. SEC. 637(A) (1970), NOR IMPLEMENTING REGULATIONS, 13 C.F.R. SEC. 124.8-1 AND 2 (1974), PRECLUDE COMPETITIVE PROCUREMENTS WHERE, AS IN THE PRESENT CASE, THERE IS MORE THAN ONE QUALIFIED 8(A) FIRM AND A REVIEW OF THE RECORD INDICATES NO ACTION, BY EITHER AEC OR SBA, WHICH WAS INCONSISTENT WITH OR CONTRARY TO THE GOVERNMENT'S POLICIES FOR 8(A) PROCUREMENTS.

ACCORDINGLY, THE PROTEST WILL NOT BE CONSIDERED UPON THE MERITS.