B-203778, OCT 26, 1981

B-203778: Oct 26, 1981

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PROTEST SUBSEQUENTLY FILED WITH GAO MORE THAN 10 WORKING DAYS AFTER BASIS FOR PROTEST IS KNOWN IS UNTIMELY. 2. PROTEST OF ALLEGED IMPROPRIETIES IN SOLICITATION WHICH IS NOT FILED PRIOR TO BID OPENING IS UNTIMELY WHEN IMPROPRIETY IS APPARENT FROM FACE OF SOLICITATION. WE BELIEVE THE PROTEST IS UNTIMELY AND THEREFORE IT WILL NOT BE CONSIDERED ON THE MERITS. WHICHEVER IS THE LESSER. BIDS WERE OPENED ON APRIL 30. OTTILIO WAS THE APPARENT LOW BIDDER WITH A BID OF $26. WHILE SEAMAN WAS THE SECOND LOW BIDDER WITH A BID OF $32. AFTER BID OPENING OTTILIO WAS ORALLY ADVISED THAT ITS BID GUARANTEE APPEARED TO BE INSUFFICIENT. THE CONTRACTING OFFICER NOTIFIED OTTILIO THAT ITS BID WAS BEING REJECTED AS NONRESPONSIVE BECAUSE IT DID NOT INCLUDE A SUFFICIENT BID GUARANTEE.

B-203778, OCT 26, 1981

DIGEST: 1. CORRESPONDENCE WITH CONTRACTING OFFICER REQUESTING INFORMATION DOES NOT CONSTITUTE PROTEST TO AGENCY. PROTEST SUBSEQUENTLY FILED WITH GAO MORE THAN 10 WORKING DAYS AFTER BASIS FOR PROTEST IS KNOWN IS UNTIMELY. 2. PROTEST OF ALLEGED IMPROPRIETIES IN SOLICITATION WHICH IS NOT FILED PRIOR TO BID OPENING IS UNTIMELY WHEN IMPROPRIETY IS APPARENT FROM FACE OF SOLICITATION.

V. OTTILIO AND SONS:

V. OTTILIO AND SONS (OTTILIO) PROTESTS THE AWARD OF A CONTRACT FOR THE REMOVAL OF A WRECK AND ASSOCIATED DEBRIS FROM THE PASSAIC RIVER CHANNEL, NEW JERSEY, TO SEAMAN MARINE CO. (SEAMAN) UNDER INVITATION FOR BIDS (IFB) DACW51-81-B-0010 ISSUED BY THE DEPARTMENT OF THE ARMY, NEW YORK DISTRICT, CORPS OF ENGINEERS. THE ARMY STATES THAT THE LOW BID SUBMITTED BY OTTILIO GUARANTEE IN ACCORDANCE WITH THE IFB REQUIREMENTS. OTTILIO CONCEDES THAT DUE TO A CLERICAL ERROR ITS BID GUARANTEE DID NOT MEET THE IFB REQUIREMENTS, BUT IT CONTENDS THAT THIS ERROR CONSTITUTES AN IMMATERIAL DEFECT AND THAT IT SHOULD STILL RECEIVE THE CONTRACT.

WE BELIEVE THE PROTEST IS UNTIMELY AND THEREFORE IT WILL NOT BE CONSIDERED ON THE MERITS.

THE IFB REQUIRED THAT EACH BID OF MORE THAN $2,000 BE ACCOMPANIED BY A BID GUARANTEE OF 20 PERCENT OF THE BID PRICE OR $3,000,000, WHICHEVER IS THE LESSER. THE IFB WARNED BIDDERS THAT FAILURE TO FURNISH THE REQUIRED BID GUARANTEE PRIOR TO THE BID OPENING MIGHT RESULT IN REJECTION OF THE BID AS NONRESPONSIVE.

BIDS WERE OPENED ON APRIL 30, 1981, AND OTTILIO WAS THE APPARENT LOW BIDDER WITH A BID OF $26,987, WHILE SEAMAN WAS THE SECOND LOW BIDDER WITH A BID OF $32,000. OTTILIO, HOWEVER, SUBMITTED A CERTIFIED CHECK FOR ONLY $3,000, APPROXIMATELY 11 PERCENT OF ITS BID PRICE, AS ITS BID GUARANTEE. AFTER BID OPENING OTTILIO WAS ORALLY ADVISED THAT ITS BID GUARANTEE APPEARED TO BE INSUFFICIENT, AND BY LETTER OF MAY 14, THE CONTRACTING OFFICER NOTIFIED OTTILIO THAT ITS BID WAS BEING REJECTED AS NONRESPONSIVE BECAUSE IT DID NOT INCLUDE A SUFFICIENT BID GUARANTEE. OTTILIO WROTE THE ARMY ON JUNE 5, SUGGESTING THAT IF THE BID GUARANTEE SUBMITTED WAS "ADEQUATE TO PROTECT THE GOVERNMENT" THEN ITS FAILURE TO SUBMIT A BID GUARANTEE IN THE REQUIRED AMOUNT OF 20 PERCENT OF THE BID PRICE COULD BE WAIVED AS AN IMMATERIAL DEFECT. BY LETTER OF JUNE 9, THE ARMY INFORMED OTTILIO THAT THE FAILURE TO SUBMIT A PROPER BID GUARANTEE WAS A MATERIAL DEFECT AND THAT AWARD HAD BEEN MADE THAT DAY TO SEAMAN. OTTILIO SUBSEQUENTLY FILED THIS PROTEST WITH OUR OFFICE ON JUNE 24.

OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS BE FILED WITH THE CONTRACTING AGENCY OR OUR OFFICE WITHIN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. 4 C.F.R. SEC. 21.2(B)(2) (1981). THE ARMY SUGGESTS THAT THIS PROTEST SHOULD BE DISMISSED AS UNTIMELY BECAUSE ITS LETTER OF MAY 14 REJECTING OTTILIO'S BID WAS THE BASIS FOR PROTEST, YET OTTILIO DID NOT FILE ITS PROTEST WITH OUR OFFICE UNTIL JUNE 24, MORE THAN ONE MONTH LATER. ON THE OTHER HAND, OTTILIO ASSERTS THAT THE ARMY'S LETTER OF JUNE 9 NOTIFYING OTTILIO OF THE AWARD TO SEAMAN CONSTITUTED THE BASIS FOR PROTEST, AND SINCE ITS PROTEST WAS FILED WITH GAO WITHIN 10 WORKING DAYS OF RECEIVING THAT LETTER, IT IS TIMELY.

WE BELIEVE THE PROTEST IS UNTIMELY. THE ARMY IS CORRECT IN THAT THE LETTER OF MAY 14 CONSTITUTED THE BASIS FOR PROTEST, AND THAT OTTILIO DID NOT FILE A PROTEST WITH OUR OFFICE WITHIN 10 WORKING DAYS OF ITS RECEIPT OF THAT LETTER. IF OTTILIO HAD FILED A PROTEST WITH THE CONTRACTING AGENCY WITHIN 10 WORKING DAYS OF ITS RECEIPT OF THE LETTER OF MAY 14 AND THEN PROTESTED TO OUR OFFICE WITHIN 10 WORKING DAYS OF ANY ADVERSE ACTION ON THE PROTEST BY THE AGENCY, THE PROTEST WOULD BE TIMELY. 4 C.F.R. SEC. 21.2(A). HOWEVER, OTTILIO DID NOT FILE A PROTEST WITH THE CONTRACTING AGENCY. ITS CORRESPONDENCE WITH THE CONTRACTING OFFICER INVOLVED ONLY AN EXCHANGE OF INFORMATION. OTTILIO'S LETTER OF JUNE 5 TO THE ARMY DID NOT STATE THAT IT WAS INTENDED TO BE A PROTEST AND DID NOT REQUEST A DECISION FROM THE AGENCY. OTTILIO MERELY REQUESTED INFORMATION FROM THE CONTRACTING OFFICER AS TO WHETHER A DETERMINATION HAD BEEN MADE OF THE ADEQUACY OF THE BID GUARANTEE SUBMITTED AND ALSO WHETHER AWARD OF THE CONTRACT HAD BEEN MADE SO THAT IT COULD CONSIDER FILING A PROTEST WITH OUR OFFICE. THE CONTRACTING OFFICER'S RESPONSE OF JUNE 9 EXPLAINED WHY OTTILIO'S BID GUARANTEE WAS DEEMED INSUFFICIENT AND REQUIRED REJECTION OF THE BID AS NONRESPONSIVE AND IT NOTIFIED OTTILIO THAT AWARD HAD BEEN MADE TO SEAMAN. SINCE OTTILIO NEVER FILED A PROTEST WITH THE CONTRACTING AGENCY, AND ITS PROTEST WITH OUR OFFICE WAS NOT FILED WITHIN 10 WORKING DAYS AFTER IT KNEW THE BASIS FOR PROTEST, THE PROTEST IS UNTIMELY AND NOT FOR CONSIDERATION ON THE MERITS.

IN ANY EVENT, WE HAVE HELD THAT A BID GUARANTEE REQUIREMENT AFFECTS THE BID PRICE AND THEREFORE IT IS A MATERIAL PART OF THE IFB. CONSEQUENTLY, A BID GUARANTEE REQUIREMENT CANNOT BE WAIVED UNLESS ONE OR MORE OF THE SPECIFIC EXCEPTIONS OF DEFENSE ACQUISITION REGULATION (DAR) SEC. 10-102.5 (1976 ED.) APPLIES. ELEVATOR SALES & SERVICE, INC., B-193519, FEBRUARY 13, 1979, 79-1 CPD 102. SEE DAR SEC. 2 404.2(H). THE ONLY EXCEPTION WHICH COULD POSSIBLY APPLY HERE IS DAR SEC. 10-102.5(II), WHICH PERMITS AWARD NOTWITHSTANDING THAT A BID GUARANTEE IS DEFICIENT IN AMOUNT, IF THE GUARANTEE SUBMITTED IS EQUAL TO OR GREATER THAN THE DIFFERENCE BETWEEN THE LOW BID PRICE AND THE PRICE STATED IN THE NEXT HIGHER ACCEPTABLE BID. SINCE THE DIFFERENCE BETWEEN OTTILIO'S BID PRICE AND SEAMAN'S IS $5,013, OTTILIO'S BID GUARANTEE OF $3,000 IS STILL $2,013 DEFICIENT IN THIS REGARD AND THEREFORE NO WAIVER IS PERMISSIBLE UNDER THIS REGULATION.

IN A LETTER SUBMITTED TO THIS OFFICE RESPONDING TO THE AGENCY REPORT ON THIS PROTEST, OTTILIO RAISED FOR THE FIRST TIME THE ARGUMENT THAT THE BID GUARANTEE REQUIREMENTS IN THE IFB WERE AMBIGUOUS. OUR BID PROTEST PROCEDURES PROVIDE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES APPARENT IN THE IFB PRIOR TO BID OPENING SHALL BE FILED BEFORE BIDS ARE OPENED. C.F.R. SEC. 21.2(B)(1). SINCE BIDS WERE OPENED ON APRIL 30 AND THE PROTESTER DID NOT FILE THIS ARGUMENT WITH OUR OFFICE UNTIL AUGUST 31, THIS MATTER IS UNTIMELY AND NOT FOR CONSIDERATION.

THE PROTEST IS DISMISSED.