B-183485, APR 8, 1975

B-183485: Apr 8, 1975

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ALLEGATION THAT CONTRACTOR'S BID DID NOT MEET CERTAIN SOLICITATION REQUIREMENTS IS UNTIMELY SINCE PROTEST WAS FILED WITH GAO MORE THAN FIVE DAYS AFTER NOTIFICATION TO PROTESTER OF ADVERSE AGENCY ACTION. 2. ALLEGATIONS OF BIDDER'S NONCOMPLIANCE WITH PROVISIONS OF PRIOR CONTRACTS IS MATTER OF CONTRACT ADMINISTRATION AND NOT FOR DETERMINATION BY GAO. PROTEST OF BIDDER'S PERFORMANCE UNDER PRIOR CONTRACTS RELATES TO BIDDER'S QUALIFICATIONS AS A RESPONSIBLE PROSPECTIVE CONTRACTOR AND IS NOT REVIEWED EXCEPT FOR ALLEGATIONS OF FRAUD BY PROCURING OFFICIALS OR WHERE DEFINITIVE RESPONSIBILITY EVALUATION FACTORS ARE OUTLINED IN SOLICITATION. THE AFFIRMATIVE ACTION PROGRAM AND THE APPRENTICESHIP PROGRAM REQUIREMENTS INCLUDED IN ITS PRIOR CONTRACTS AND THAT IT WILL NOT COMPLY WITH SIMILAR REQUIREMENTS IN THIS CASE.

B-183485, APR 8, 1975

1. ALLEGATION THAT CONTRACTOR'S BID DID NOT MEET CERTAIN SOLICITATION REQUIREMENTS IS UNTIMELY SINCE PROTEST WAS FILED WITH GAO MORE THAN FIVE DAYS AFTER NOTIFICATION TO PROTESTER OF ADVERSE AGENCY ACTION. 2. ALLEGATIONS OF BIDDER'S NONCOMPLIANCE WITH PROVISIONS OF PRIOR CONTRACTS IS MATTER OF CONTRACT ADMINISTRATION AND NOT FOR DETERMINATION BY GAO. PROTEST OF BIDDER'S PERFORMANCE UNDER PRIOR CONTRACTS RELATES TO BIDDER'S QUALIFICATIONS AS A RESPONSIBLE PROSPECTIVE CONTRACTOR AND IS NOT REVIEWED EXCEPT FOR ALLEGATIONS OF FRAUD BY PROCURING OFFICIALS OR WHERE DEFINITIVE RESPONSIBILITY EVALUATION FACTORS ARE OUTLINED IN SOLICITATION.

PAINTER'S DRYWALL FINISHERS & ALLIED TRADES UNION, LOCAL 171:

PAINTER'S DRYWALL FINISHERS AND ALLIED TRADES UNION, LOCAL 171 (UNION) PROTESTS THE AWARD OF A CONTRACT TO SOUTHWEST CONSTRUCTION COMPANY (SOUTHWEST) UNDER IFB NO. F05611-75-09-0239 ISSUED BY THE UNITED STATES AIR FORCE ACADEMY. UNION ALLEGES THAT SOUTHWEST HAS NOT MET THE EQUAL OPPORTUNITY PROGRAM, THE AFFIRMATIVE ACTION PROGRAM AND THE APPRENTICESHIP PROGRAM REQUIREMENTS INCLUDED IN ITS PRIOR CONTRACTS AND THAT IT WILL NOT COMPLY WITH SIMILAR REQUIREMENTS IN THIS CASE. UNION ALSO PROTESTS, ON THE SAME BASIS, POSSIBLE AWARD OF A CONTRACT TO K.K. KONDO PAINTING COMPANY (KONDO) UNDER INVITATION FOR BIDS (IFB) DAKF06-75-B-0068 ISSUED BY THE U.S. ARMY FOR PAINTING SERVICES AT FT. CARSON, COLORADO.

IN CONNECTION WITH THE AIR FORCE PROCUREMENT, UNION RAISED SIMILAR ISSUES IN A LETTER DATED DECEMBER 19, 1974, TO THE SUPERINTENDENT OF THE AIR FORCE ACADEMY. BY LETTER OF DECEMBER 29, 1974, THE CHIEF OF STAFF OF THE ACADEMY REVIEWED UNION'S ALLEGATIONS CONCERNING SOUTHWEST'S AND OTHER CONTRACTORS' ALLEGED FAILURE TO COMPLY WITH THE AFOREMENTIONED CONTRACT REQUIREMENTS BUT CONCLUDED THAT THERE WERE NO VIOLATIONS. CONTRACT AWARD WAS MADE TO SOUTHWEST ON DECEMBER 27, 1974.

OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CODE OF FEDERAL REGULATIONS (C.F.R.) SEC. 20.2(A) (1974 ED.), PROVIDE IN PERTINENT PART THAT:

"*** BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. ***"

UNION'S PROTEST TO THIS OFFICE WAS RECEIVED ON MARCH 21, 1975. SINCE THE PROTEST WAS FILED HERE NEARLY THREE MONTHS AFTER THE DATE OF AWARD AND NOTIFICATION OF ADVERSE ACTION BY THE AIR FORCE ON THE PROTEST, UNION'S PROTEST TO THIS OFFICE IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.

TO THE EXTENT THAT UNION'S PROTEST CONCERNS SOUTHWEST'S ALLEGED NONCOMPLIANCE WITH CONTRACTUAL PROVISIONS, IT INVOLVES A MATTER OF CONTRACT ADMINISTRATION AND IS NOT FOR DETERMINATION BY THIS OFFICE. MOREOVER, SOUTHWEST'S PERFORMANCE IN PREVIOUS CONTRACTS SUBJECT TO THE ABOVE-MENTIONED PROVISIONS RELATES TO THE BIDDER'S QUALIFICATIONS AS A RESPONSIBLE PROSPECTIVE CONTRACTOR; THIS OFFICE DOES NOT REVIEW SUCH BID PROTESTS TO CONTRACTING OFFICERS' AFFIRMATIVE RESPONSIBILITY DETERMINATIONS EXCEPT FOR ALLEGATIONS OF FRAUD BY PROCURING OFFICIALS OR WHERE DEFINITIVE RESPONSIBILITY EVALUATION FACTORS ARE OUTLINED IN THE SOLICITATION. SEE CENTRAL METAL PRODUCTS, INCORPORATED, 54 COMP. GEN. 66 (1974) AND DATA TEST CORPORATION, B-181199(1), DECEMBER 20, 1974, 54 COMP. GEN. .

IN REGARD TO UNION'S PROTEST AGAINST AWARD TO KONDO, WE HAVE BEEN INFORMALLY ADVISED BY THE ARMY THAT KONDO HAS BEEN ALLOWED TO WITHDRAW ITS BID FROM CONSIDERATION UNDER IFB DAKF06-75-B-0068 BECAUSE OF A MISTAKE. THEREFORE, THIS PART OF UNION'S PROTEST IS NOW MOOT.

ACCORDINGLY, WE MUST DECLINE TO CONSIDER THE PROTEST ON ITS MERITS.