B-201568.2, FEB 11, 1981
Highlights
DIGEST: PROTEST CONCERNING ALLEGED AMBIGUITY IN ECONOMIC PRICE ADJUSTMENT PROVISIONS OF RFP IS UNTIMELY WHEN FILED SUBSEQUENT TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS. WMC CONTENDS THAT THE ECONOMIC PRICE ADJUSTMENT PROVISIONS SET FORTH IN THE RFP ARE SO AMBIGUOUS THAT THEIR POTENTIAL APPLICATION TO THE VARIOUS OFFERORS WOULD BE INEQUITABLE AND UNFAIR. OUR BID PROTEST PROCEDURES PROVIDE THAT PROTESTS ALLEGING AN IMPROPRIETY IN A SOLICITATION WHICH IS APPARENT PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS MUST BE FILED PRIOR TO THAT DATE. 4 C.F.R. ALLEGED IMPROPRIETIES WHICH DO NOT EXIST IN THE INITIAL SOLICITATION BUT WHICH ARE SUBSEQUENTLY INCORPORATED THEREIN MUST BE PROTESTED NOT LATER THAN THE NEXT CLOSING DATE FOR RECEIPT OF PROPOSALS FOLLOWING THE INCORPORATION.
B-201568.2, FEB 11, 1981
DIGEST: PROTEST CONCERNING ALLEGED AMBIGUITY IN ECONOMIC PRICE ADJUSTMENT PROVISIONS OF RFP IS UNTIMELY WHEN FILED SUBSEQUENT TO THE CLOSING DATE FOR RECEIPT OF PROPOSALS.
WHITE MOTOR CORPORATION:
WHITE MOTOR CORPORATION (WMC) PROTESTS THE AWARD OF A CONTRACT UNDER REQUEST FOR PROPOSAL (RFP) NO. F09603-80-R-1344 ISSUED BY THE DEPARTMENT OF THE AIR FORCE FOR THE PURCHASE OF FUEL SERVICING TRUCKS. WMC CONTENDS THAT THE ECONOMIC PRICE ADJUSTMENT PROVISIONS SET FORTH IN THE RFP ARE SO AMBIGUOUS THAT THEIR POTENTIAL APPLICATION TO THE VARIOUS OFFERORS WOULD BE INEQUITABLE AND UNFAIR.
OUR BID PROTEST PROCEDURES PROVIDE THAT PROTESTS ALLEGING AN IMPROPRIETY IN A SOLICITATION WHICH IS APPARENT PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS MUST BE FILED PRIOR TO THAT DATE. 4 C.F.R. SEC. 20.2(B)(1) (1980). FURTHER, ALLEGED IMPROPRIETIES WHICH DO NOT EXIST IN THE INITIAL SOLICITATION BUT WHICH ARE SUBSEQUENTLY INCORPORATED THEREIN MUST BE PROTESTED NOT LATER THAN THE NEXT CLOSING DATE FOR RECEIPT OF PROPOSALS FOLLOWING THE INCORPORATION. ID.
THE ALLEGEDLY DEFECTIVE CLAUSE WAS PROMULGATED IN AN AMENDMENT TO THE RFP WHICH EXTENDED THE CLOSING DATE FOR RECEIPT OF PROPOSALS TO SEPTEMBER 8, 1980. WMC, ON SEPTEMBER 4, 1980, SENT A LETTER TO THE AIR FORCE WHICH CONTAINED A SUGGESTED ALTERNATIVE CLAUSE. THIS GENERATED A SERIES OF EXCHANGES BETWEEN WMC AND THE AIR FORCE WHICH RESULTED IN AMENDMENT NO. 0004 TO THE RFP MODIFYING THE ECONOMIC PRICE ADJUSTMENT CLAUSE AND EXTENDING THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS FROM SEPTEMBER 8, TO SEPTEMBER 22, 1980. WHILE THE RECORD INDICATES SEVERAL OTHER EXCHANGES BETWEEN WMC AND THE AIR FORCE, THERE IS NO INDICATION OF ANY PROTEST BEING FILED REGARDING THE MODIFIED PRICE ADJUSTMENT CLAUSE PRIOR TO SEPTEMBER 22, 1980. SUBSEQUENTLY, ON JANUARY 7, 1981, WMC FILED ITS PROTEST WITH OUR OFFICE.
SINCE WMC DID NOT PROTEST THE APPLICABLE PROVISIONS OF THE MODIFIED ECONOMIC PRICE ADJUSTMENT CLAUSE UNTIL AFTER THE NEXT CLOSING DATE FOR RECEIPT OF PROPOSALS FOLLOWING ITS INCORPORATION, THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED ON ITS MERITS. NUCLEAR RESEARCH CORPORATION, B-189790, FEBRUARY 22, 1978, 78-1 CPD 147.
ACCORDINGLY, THIS PROTEST IS DISMISSED.