B-183210, MAR 12, 1975

B-183210: Mar 12, 1975

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IS NOT TIMELY FILED. SINCE 4 C.F.R. 20.2(A) REQUIRES PROTESTS AGAINST SOLICITATION DEFECTS TO BE FILED PRIOR TO CLOSING DATE OR WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION IF PROTEST WAS INITIALLY FILED WITH AGENCY. ACT OF RECEIVING AND CONSIDERING PROPOSALS IS DEEMED ADVERSE AGENCY ACTION. POQUITO-LONGWOOD AREA CIVIC ASSOCIATION INC.: REQUEST FOR PROPOSALS (RFP) F08651-75-R-0527 WAS ISSUED NOVEMBER 25. CLOSING DATE FOR RECEIPT OF PROPOSALS WAS JANUARY 28. PROPOSALS SUBMITTED PURSUANT THERETO ARE CURRENTLY BEING EVALUATED BY THE CONTRACTING AGENCY. WHICH WAS RECEIVED IN OUR OFFICE ON FEBRUARY 11. THERE IS NO AUTHORITY FOR US TO PROVIDE AN ADVANCE DECISION TO PRIVATE PARTIES SUCH AS THE ASSOCIATION.

B-183210, MAR 12, 1975

PROTEST BY CIVIC ASSOCIATION AGAINST USE OF NEGOTIATION AND SOLICITATION DEFECTS RECEIVED BY GAO 2 WEEKS FOLLOWING CLOSING DATE FOR RECEIPT OF PROPOSALS, IS NOT TIMELY FILED, SINCE 4 C.F.R. 20.2(A) REQUIRES PROTESTS AGAINST SOLICITATION DEFECTS TO BE FILED PRIOR TO CLOSING DATE OR WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION IF PROTEST WAS INITIALLY FILED WITH AGENCY. UNDER CIRCUMSTANCES HEREIN, ACT OF RECEIVING AND CONSIDERING PROPOSALS IS DEEMED ADVERSE AGENCY ACTION.

POQUITO-LONGWOOD AREA CIVIC ASSOCIATION INC.:

REQUEST FOR PROPOSALS (RFP) F08651-75-R-0527 WAS ISSUED NOVEMBER 25, 1974, BY THE AIR FORCE PROCUREMENT OFFICE, EGLIN AIR FORCE BASE, FLORIDA, FOR THE CONSTRUCTION OF MILITARY HOUSING UNITS. CLOSING DATE FOR RECEIPT OF PROPOSALS WAS JANUARY 28, 1975, AND PROPOSALS SUBMITTED PURSUANT THERETO ARE CURRENTLY BEING EVALUATED BY THE CONTRACTING AGENCY.

BY LETTER OF FEBRUARY 8, 1975, WHICH WAS RECEIVED IN OUR OFFICE ON FEBRUARY 11, 1975, THE POQUITO-LONGWOOD AREA CIVIC ASSOCIATION INC., SHALIMAR, FLORIDA, A CIVIC ASSOCIATION OF PRIVATE HOME-OWNERS RESIDING ON LAND CONTIGUOUS TO THE BASE, ALLEGED VARIOUS IMPROPRIETIES IN THE RFP AND QUESTIONED THE USE OF NEGOTIATION PROCEDURES RATHER THAN FORMAL ADVERTISING. THE ASSOCIATION SPECIFICALLY REQUESTED AN "ADVANCE DECISION WITH RESPECT TO THE PROPRIETY OF NEGOTIATIONS."

PURSUANT TO 31 U.S.C. 74, THIS OFFICE CONSIDERS REQUESTS FOR ADVANCE DECISIONS FROM GOVERNMENT CERTIFYING OFFICIALS AND HEADS OF EXECUTIVE AGENCIES. HOWEVER, THERE IS NO AUTHORITY FOR US TO PROVIDE AN ADVANCE DECISION TO PRIVATE PARTIES SUCH AS THE ASSOCIATION. IT APPEARS THAT THE ASSOCIATION'S REQUEST IS ACTUALLY A PROTEST AGAINST THE PROCEDURES UTILIZED BY THE AIR FORCE IN THIS PROCUREMENT FOR TURNKEY HOUSING UNITS. SUCH PROTESTS ARE GOVERNED BY THE STANDARDS AND PROCEDURES SET FORTH AT 4 C.F.R. PART 20, WHICH PROVIDES IN PART THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATIONS WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO THAT DATE. 4 C.F.R. 20.2(A).

THAT SECTION FURTHER PROVIDES THAT IN INSTANCES IN WHICH A PROTEST HAS BEEN FILED INITIALLY WITH THE AGENCY, A PROTEST MUST BE FILED WITH OUR OFFICE WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION IN ORDER TO BE CONSIDERED TIMELY.

HERE IT APPEARS THAT THE ASSOCIATION REGISTERED WITH THE AIR FORCE ITS OBJECTIONS TO THE PROPOSED LOCATION OF THE HOUSING UNITS IN THE SUMMER OF 1974. SUBSEQUENTLY, AS INDICATED ABOVE, THE AIR FORCE ISSUED THE SOLICITATION IN NOVEMBER 1974. THE RECORD IS NOT CLEAR AS TO WHETHER THE ASSOCIATION'S SPECIFIC OBJECTIONS TO THE RFP WERE ALSO BROUGHT TO THE ATTENTION OF THE AIR FORCE. IF THEY WERE, THE PROTEST HERE IS UNTIMELY BECAUSE IT WAS NOT FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION. IN THIS REGARD, WE HAVE STATED THAT SUCH "ADVERSE AGENCY ACTION MAY CONSIST OF A PROCUREMENT ACTION SUCH AS THE AWARD OF A CONTRACT, 52 COMP. GEN. 20 (1972), OR THE OPENING OF BIDS. SEE 52 COMP. GEN. 821 (1973)." MATTER OF SQUARE DEAL TRUCKING COMPANY, INC., B-182436, FEBRUARY 19, 1975. SIMILARLY, WE WOULD VIEW THE RECEIPT AND CONSIDERATION OF PROPOSALS BY THE AIR FORCE, IN THE FACE OF OBJECTIONS FILED AGAINST THE RFP, AS ADVERSE AGENCY ACTION. IF, ON THE OTHER HAND, THE ASSOCIATION DID NOT PROTEST THE SOLICITATION TO THE AIR FORCE, THEN ITS PROTEST HERE IS UNTIMELY BECAUSE IT WAS NOT FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS.

ACCORDINGLY, THE PROTEST WILL NOT BE CONSIDERED.