B-195401.2,L/M, MAY 20, 1980

B-195401.2,L/M: May 20, 1980

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THE FIRST OF THESE ALLEGATIONS IS THAT SOME OF THE COMPETITORS OF MGR ARE SUBMITTING LOW BID PRICES WITH NO INTENTION OF SUPPLYING ITEMS IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH IN THE PARTICULAR SOLICITATION. DLA400-79 C-2085 IS CITED. WHETHER OR NOT A CONTRACTOR IS PERFORMING IN ACCORDANCE WITH THE CONTRACT SPECIFICATIONS. IS A MATTER OF CONTRACT ADMINISTRATION. WHICH IS DEALT WITH BY THE CONTRACTING AGENCY. ARE RESERVED FOR CONSIDERING WHETHER AN AWARD OR PROPOSED AWARD IS IN COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. RESOLUTION OF THIS QUESTION IS FOR THE CONTRACTING AGENCY IN THE FIRST INSTANCE. MGR HAD BEEN INFORMED ON FEBRUARY 15 OF THE AWARD TO ANOTHER BIDDER AND APPARENTLY WAS TOLD THAT IF IT DISAGREED WITH THE NAVY'S DECISION TO REJECT ITS BID.

B-195401.2,L/M, MAY 20, 1980

OFFICE OF GENERAL COUNSEL

JOHN W. WYDLER, HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR COMMUNICATIONS FORWARDING CORRESPONDENCE FROM MGR EQUIPMENT CORP. (MGR) ALLEGING IRREGULARITIES IN VARIOUS GOVERNMENT PROCUREMENTS.

THE FIRST OF THESE ALLEGATIONS IS THAT SOME OF THE COMPETITORS OF MGR ARE SUBMITTING LOW BID PRICES WITH NO INTENTION OF SUPPLYING ITEMS IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH IN THE PARTICULAR SOLICITATION, THUS UNDERBIDDING FIRMS WHICH BID WITH THE INTENTION OF COMPLYING WITH THE SPECIFICATIONS. AS AN EXAMPLE, DEFENSE GENERAL SUPPLY CENTER (DGSC), DEFENSE LOGISTICS AGENCY, CONTRACT NO. DLA400-79 C-2085 IS CITED, ALONG WITH AN MGR PROTEST TO THE CONTRACTING AGENCY AGAINST THE POSSIBLE WAIVER OF THE SPECIFICATIONS FOR THE AWARDEE.

THE MATTER OF CONTRACT COMPLIANCE, WHETHER OR NOT A CONTRACTOR IS PERFORMING IN ACCORDANCE WITH THE CONTRACT SPECIFICATIONS, IS A MATTER OF CONTRACT ADMINISTRATION, WHICH IS DEALT WITH BY THE CONTRACTING AGENCY. OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980), ARE RESERVED FOR CONSIDERING WHETHER AN AWARD OR PROPOSED AWARD IS IN COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. SMI (WATERTOWN), INC., B-188174, FEBRUARY 8, 1977, 77-1 CPD 98; SCHOOL TRANSPORTATION CO., INC., B-192799, JANUARY 10, 1979, 79-1 CPD 12.

IN ADDITION TO THE ABOVE GENERAL ALLEGATION, MGR PROTESTED TO THE CONTRACTING AGENCY THAT THE CONTRACTOR UNDER THE DGSC CONTRACT HAD BID IN VIOLATION OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. SEC. 85, ET SEQ. (1976). RESOLUTION OF THIS QUESTION IS FOR THE CONTRACTING AGENCY IN THE FIRST INSTANCE, SUBJECT TO THE REVIEW OF THE SECRETARY OF LABOR. SACE CORPORATION, B-192928, SEPTEMBER 27, 1978, 78-2 CPD 240; SCHERING CORPORATION, B-193872, MARCH 30, 1979, 79-1 CPD 221.

THE FINAL ALLEGATION CONCERNS THE REJECTION OF MGR'S BID UNDER INVITATION FOR BIDS NO. N00104-79-B-0770, ISSUED BY THE NAVY, DUE TO THE FAILURE OF MGR TO ACKNOWLEDGE AMENDMENT NO. 0003 TO THE INVITATION. MGR HAD BEEN INFORMED ON FEBRUARY 15 OF THE AWARD TO ANOTHER BIDDER AND APPARENTLY WAS TOLD THAT IF IT DISAGREED WITH THE NAVY'S DECISION TO REJECT ITS BID, IT COULD APPEAL THE MATTER TO OUR OFFICE. MGR DID NOT PROTEST TO OUR OFFICE BUT ATTEMPTED TO GET THE NAVY TO RECONSIDER ITS ACTIONS. BY AT LEAST MARCH 18, MGR HAD RECEIVED THE NAVY LETTER OF FEBRUARY 29 EXPLAINING WHY THE MGR BID HAD BEEN PROPERLY REJECTED. IN ITS LETTER OF MARCH 18, MGR REQUESTED THAT YOU FILE AN APPEAL ON ITS BEHALF.

OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.2(A) (1980), REQUIRE THAT IN ORDER TO BE CONSIDERED BY OUR OFFICE A PROTEST MUST BE FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER HAD EITHER ACTUAL OR CONSTRUCTIVE NOTICE OF THE INITIAL ADVERSE AGENCY ACTION ON ITS PROTEST FILED WITH THE CONTRACTING AGENCY. THE MGR PROTEST OF THE REJECTION OF ITS BID WAS NOT RECEIVED BY OUR OFFICE UNTIL APRIL 11, MORE THAN 10 WORKING DAYS AFTER MGR HAD BEEN ADVISED OF THE INITIAL ADVERSE AGENCY ACTION. BECAUSE THE PROTEST WAS THUS UNTIMELY FILED WITH OUR OFFICE, IT IS NOT FOR OUR CONSIDERATION.

THE TIME LIMITS ON THE SUBMISSION OF BID PROTESTS WERE ADOPTED AFTER DUE CONSIDERATION TO PERMIT US TO DECIDE THE ISSUE WHILE IT IS STILL PRACTICABLE TO TAKE EFFECTIVE ACTION WITH RESPECT TO THE PROCUREMENT WHERE THE CIRCUMSTANCES WARRANT. ACCORDINGLY, OUR POLICY IS THAT NO PROTEST WILL BE CONSIDERED ON ITS MERITS IF UNTIMELY FILED, WITH EXCEPTIONS NOT APPLICABLE HERE, EVEN IF FILED OR SUPPORTED BY A MEMBER OF CONGRESS. OTHERWISE, THIS MIGHT SUGGEST TO THE PROCUREMENT COMMUNITY THAT THE TIMELINESS PROVISIONS MAY BE CIRCUMVENTED BY SUBMITTING THE PROTEST THROUGH A MEMBER OF CONGRESS.

AS REQUESTED, THE ENCLOSURES TO YOUR COMMUNICATIONS ARE HEREWITH RETURNED.