B-182318, JAN 27, 1975

B-182318, JAN 27, 1975

1. PROTEST CONCERNING THE NONCOMPETITIVE NATURE OF A PROCUREMENT FILED MORE THAN 30 DAYS AFTER NOTICE OF THE CONTRACT AWARD WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY IS UNTIMELY UNDER 4 C.F.R. 20.2(A). 2. UNTIMELY PROTEST WHICH RAISES ISSUES OF PROPRIETY OF DELAYED ANNOUNCEMENT OF CONTRACT AWARD AND SOLE-SOURCE NATURE OF PROCUREMENT WILL NOT BE CONSIDERED UNDER 4 C.F.R. 20.2(B) (1974) SINCE MATTER DOES NOT INVOLVE A PRINCIPLE OF WIDESPREAD PROCUREMENT INTEREST.

DEL NORTE TECHNOLOGY, INC.:

ON NOVEMBER 21, 1974, OUR OFFICE ISSUED A DECISION WITH REGARD TO DEL NORTE'S PROTEST OF THE NAVY SUPPLY CENTER'S AWARD OF CONTRACT NO. N00406- 75-C-2072 ON A SOLE-SOURCE BASIS TO MOTOROLA, INC. IN THAT INITIAL DECISION, DEL NORTE WAS FOUND TO HAVE EXCEEDED THE FIVE-DAY PERIOD FOR PROTESTING PROVIDED IN OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. 20.2(A), ON THE BASIS THAT DEL NORTE ACTUALLY BECAME AWARE OF THE AWARD THROUGH NOTICE OF AWARD LISTED IN THE AUGUST 27, 1974, ISSUE OF COMMERCE BUSINESS DAILY, BUT FILED ITS PROTEST WITH THIS OFFICE MORE THAN 30 DAYS THEREAFTER.

DEL NORTE NOW CONTENDS THAT THE NAVY SUPPLY CENTER ENGAGED IN A CONCERTED EFFORT TO PREVENT IT FROM BIDDING ON THE SUBJECT PROCUREMENT BY FOLLOWING IMPROPER PROCUREMENT PROCEDURES. THE PROTESTER STATES THAT THE PERIOD OF A MONTH AND 3 DAYS WHICH ELAPSED FROM THE DATE OF THE AWARD TO ITS PUBLICATION IN THE COMMERCE BUSINESS DAILY CONSTITUTED AN UNREASONABLE DELAY AND IS SUBJECT TO QUESTION. DEL NORTE, A SMALL BUSINESS CONCERN, SUGGESTS THAT IT SHOULD NOT BE HELD TO A GREATER BURDEN OF TIMELINESS THAN THE GOVERNMENT SINCE IT PROMPTLY FILED ITS PROTEST AFTER BECOMING AWARE OF THE AWARD. IN ADDITION THE PROTESTER STATES THAT IT HAD FORMALLY NOTIFIED THE PURCHASING OFFICER ON FEBRUARY 6, 1974, OF THE PROTESTER'S COMPETING SYSTEM AND HAD REQUESTED TO BE PLACED ON THE BIDDER'S LIST FOR FUTURE PROCUREMENTS. THE PROTESTER CONTENDS THAT IN SUCH CIRCUMSTANCES IT SHOULD NOT HAVE BEEN HELD TO THE NOTICE PUBLICIZED IN THE "CONTRACTS AWARDED" SECTION OF THE COMMERCE BUSINESS DAILY, BUT THAT ITS ONLY OBLIGATION WAS TO LOOK UNDER THE "INVITATION FOR BID" SECTION OF THAT PUBLICATION. WHILE FOR THE ABOVE REASONS DEL NORTE BELIEVES THAT IT DID PROTEST IN A TIMELY MANNER, IN ANY EVENT IT CONTENDS THAT THIS CASE RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES AND PROCEDURES AND SHOULD BE CONSIDERED PURSUANT TO 4 C.F.R. 20.2(B), EVEN IF IT IS UNTIMELY FILED.

WHILE OUR BID PROTEST FORUM IS DESIGNED TO AFFORD AGGRIEVED BIDDERS AND OTHER INTERESTED PARTIES THE OPPORTUNITY TO CHALLENGE ALLEGED IRREGULARITIES BY PROCURING AGENCIES IN AWARDING CONTRACTS, WE REQUIRE THAT PROTESTS BE FILED PROMPTLY IN ORDER TO INSURE THAT THE GOVERNMENT'S PROCUREMENT PROCESS IS NOT BURDENED BY UNTIMELY PROTESTS. ACCORDINGLY 4 C.F.R. 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVIDES IN PART THAT PROTESTS SHOULD BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. HERE THE PROTEST CONCERNS THE AGENCY'S FAILURE TO SOLICIT THE PROTESTER FOR THE SUBJECT PROCUREMENT AND THE NONCOMPETITIVE NATURE OF THE PROCUREMENT ITSELF. THE PROTESTER STATES THAT IT FIRST BECAME AWARE OF THE INSTANT PROCUREMENT MORE THAN 30 DAYS AFTER NOTICE OF AWARD WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY AND THEN THE PROTEST WAS IMMEDIATELY FILED. OUR OPINION THE BASIS OF THE PROTEST SHOULD HAVE BEEN KNOWN TO THE PROTESTER, WITHIN THE MEANING OF 4 C.F.R. 20.2(A), WHEN NOTICE OF AWARD WAS PUBLISHED IN THE COMMERCE BUSINESS DAILY.

IN REACHING THIS CONCLUSION WE NOTE THAT IT IS THE STATUTORY DUTY OF THE SECRETARY OF COMMERCE TO PUBLICIZE PROCUREMENT INFORMATION IN THE COMMERCE BUSINESS DAILY. 15 U.S.C. 637(E) (1970). MOREOVER, INFORMATION RELEVANT TO PROCUREMENT AND CONTRACT AWARDS GENERALLY IS REQUIRED BY REGULATION TO BE SYNOPSIZED AND FORWARDED FOR PUBLICATION ON A DAILY BASIS. SEE ARMED SERVICES PROCUREMENT REGULATION 1 1005.1(A) AND (B) (1974 ED.). THEREFORE, WE REGARD PUBLICATION OF AWARD INFORMATION IN THE COMMERCE BUSINESS DAILY AS CONSTITUTING NOTICE OF SUCH INFORMATION TO ALL CONCERNED. OTHERWISE PROTESTS SUCH AS THE INSTANT ONE COULD BE FILED AT ANY TIME AFTER AWARD, CONTRARY TO THE INTENT OF OUR PROTEST STANDARDS.

THE FACT THAT THE ANNOUNCEMENT OF AWARD IN THE COMMERCE BUSINESS DAILY WAS DELAYED DID NOT PREVENT THE FILING OF A TIMELY PROTEST ONCE THE AWARD WAS ANNOUNCED. ALSO, THE FACT THAT A POTENTIAL BIDDER OR OFFEROR MAY HAVE HAD REASON TO BELIEVE THAT IT WAS ON THE APPLICABLE BIDDER'S LIST AND THEREFORE WOULD BE SOLICITED DOES NOT, IN OUR OPINION, RELIEVE THE BIDDER FROM THE EFFECT OF NOTIFICATION IN THE AWARDS SECTION OF THE COMMERCE BUSINESS DAILY. IN THIS CONNECTION WE NOTE THAT IT MAY BE APPROPRIATE FOR AN AGENCY TO SOLICIT ONLY A PORTION OF THE FIRMS APPEARING ON A PARTICULAR BIDDER'S MAILING LIST AND THERE MAY ALSO BE CIRCUMSTANCES IN WHICH PUBLICATION OF A PROPOSED PROCUREMENT NORMALLY IS NOT REQUIRED PRIOR TO AWARD.

WHILE SECTION 20.2(B) OF OUR BID PROTEST PROCEDURES PROVIDES FOR CONSIDERATION OF ANY PROTEST CONTAINING SIGNIFICANT ISSUES EVEN WHERE THE PROTEST IS UNTIMELY, WE HAVE HELD THAT THIS EXCEPTION TO THE TIMELINESS RULE HAS REFERENCE TO THE PRESENCE OF A PRINCIPLE OF WIDESPREAD PROCUREMENT INTEREST. 52 COMP. GEN. 20 (1972). THE ISSUES HERE RELATE TO WHETHER ANNOUNCEMENT OF CONTRACT AWARD IN THE COMMERCE BUSINESS DAILY WAS IMPROPERLY DELAYED AND TO THE SOLE-SOURCE NATURE OF A PARTICULAR GOVERNMENT PROCUREMENT. IN OUR OPINION THESE ISSUES, VIEWED SINGLY OR TOGETHER, DO NOT RISE TO THE REQUIRED LEVEL OF WIDESPREAD PROCUREMENT INTEREST AND ARE NOT SIGNIFICANT.

ACCORDINGLY, OUR DECISION OF NOVEMBER 21, 1974, IS AFFIRMED.