B-182255, DEC 13, 1974

B-182255: Dec 13, 1974

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WHERE ISSUES BEFORE COURT IN SUIT FILED BY PROTESTER ARE SAME AS INCORPORATED IN PROTEST AND ARE LIKELY TO BE DISPOSED OF BY COURT. NO DECISION WILL BE RENDERED ON PROTEST. 2. ALLEGATION FILED AFTER BID OPENING THAT SPECIFICATIONS ARE IMPROPERLY DRAWN BY REQUIRING CERTAIN METHOD OF CONSTRUCTION IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974) WHICH REQUIRES PROTESTS AGAINST ALLEGED IMPROPRIETIES WHICH ARE APPARENT PRIOR TO BID OPENING BE FILED PRIOR TO BID OPENING. THE PROTEST IS BASED ON TWO CONTENTIONS. THAT THE SPECIFICATIONS DO NOT UTILIZE THE MOST ECONOMICAL METHOD OF CONSTRUCTION AND THAT THE BID BOND OF THE LOW BIDDER WAS DEFECTIVE. THE ARGUMENT THAT THE SPECIFICATIONS WERE IMPROPERLY DRAWN IS UNTIMELY.

B-182255, DEC 13, 1974

1. WHERE ISSUES BEFORE COURT IN SUIT FILED BY PROTESTER ARE SAME AS INCORPORATED IN PROTEST AND ARE LIKELY TO BE DISPOSED OF BY COURT, NO DECISION WILL BE RENDERED ON PROTEST. 2. ALLEGATION FILED AFTER BID OPENING THAT SPECIFICATIONS ARE IMPROPERLY DRAWN BY REQUIRING CERTAIN METHOD OF CONSTRUCTION IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974) WHICH REQUIRES PROTESTS AGAINST ALLEGED IMPROPRIETIES WHICH ARE APPARENT PRIOR TO BID OPENING BE FILED PRIOR TO BID OPENING.

AMCO CONSTRUCTION COMPANY, INC.:

BY LETTER OF SEPTEMBER 12, 1974, AMCO CONSTRUCTION COMPANY, INC. (AMCO), PROTESTED TO OUR OFFICE THE AWARD OF A CONTRACT BY THE BOARD OF SUPERVISORS, HANCOCK COUNTY, MISSISSIPPI, PRUSUANT TO A GRANT BY THE FEDERAL HIGHWAY ADMINISTRATION FOR EMERGENCY RELIEF PROJECT NO. ER 65(5.

THE PROTEST IS BASED ON TWO CONTENTIONS; NAMELY, THAT THE SPECIFICATIONS DO NOT UTILIZE THE MOST ECONOMICAL METHOD OF CONSTRUCTION AND THAT THE BID BOND OF THE LOW BIDDER WAS DEFECTIVE.

THE ARGUMENT THAT THE SPECIFICATIONS WERE IMPROPERLY DRAWN IS UNTIMELY. UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. PART 20 (1974)), PROTESTS AGAINST ALLEGED IMPROPRIETIES WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING (4 C.F.R. SEC. 20.2(A)). AS BIDS WERE OPENED ON AUGUST 15, 1974, AND THE PROTEST LETTER OF SEPTEMBER 12, 1974, WAS NOT RECEIVED IN OUR OFFICE UNTIL SEPTEMBER 19, 1974, IT IS UNTIMELY AND WILL NOT BE CONSIDERED FURTHER.

ON DECEMBER 2, 1974, WE WERE INFORMED THAT AMCO HAS FILED A COMPLAINT (NO. 6294) IN THE CIRCUIT COURT OF HANCOCK COUNTY, MISSISSIPPI, AGAINST THE HANCOCK COUNTY BOARD OF SUPERVISORS REQUESTING THAT THE AWARD BE SET ASIDE.

THE COMPLAINT IN THE COURT ACTION PUTS IN ISSUE THE OTHER BASIS OF AMCO'S BID PROTEST, THE VALIDITY OF THE BID BOND OF THE LOW BIDDER. IT IS CONTRARY TO THE POLICY OF OUR OFFICE TO RENDER A DECISION ON A PROTEST WHERE THE MATERIAL ISSUES ARE ALSO INVOLVED IN LITIGATION PENDING BEFORE A COURT OF COMPETENT JURISDICTION AND ARE LIKELY TO BE DISPOSED OF BY THE COURT. MATTER OF NARTRON CORPORATION, B-178224, B 179173, MARCH 29, 1974, AND 4 C.F.R. SEC. 20.11 (1974).

THEREFORE, AS THE FIRST BASIS OF PROTEST IS UNTIMELY AND THE SECOND ISSUE IS PRESENTLY IN COURT, WE ARE CLOSING OUR FILE ON THE MATTER WITHOUT FURTHER ACTION.