B-206444.4, FEB 23, 1983

B-206444.4: Feb 23, 1983

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PROTEST AGAINST PROVISION PROVIDING FOR AGGREGATE AWARD OF FURNITURE ITEMS IN SOLICITATION APPARENT BEFORE BID OPENING IS DISMISSED AS UNTIMELY WHEN FILED AFTER BID OPENING BECAUSE GAO BID PROTEST PROCEDURES REQUIRE FILING PRIOR TO BID OPENING. 2. IS UNTIMELY. THIS PROCUREMENT WAS THE SUBJECT OF A PREAWARD PROTEST FILED BY STANLEY FURNITURE COMPANY (STANLEY) WHICH WE DENIED IN PART AND DISMISSED IN PART IN STANLEY FURNITURE COMPANY. PULASKI ALSO ARGUES THAT IT WAS AWARDED THE FEDERAL SUPPLY SCHEDULE (FSS) CONTRACT FOR OAK SEATING PIECES. WHICH IS EFFECTIVE JULY 1. THE AIR FORCE SHOULD HAVE MADE AWARD OF THE ITEM FOR OAK SEATING PIECES TO PULASKI. ANY PROTEST BASED ON AN ALLEGED IMPROPRIETY IN THE SOLICITATION WHICH IS APPARENT PRIOR TO BID OPENING MUST BE FILED (RECEIVED) IN OUR OFFICE PRIOR TO BID OPENING.

B-206444.4, FEB 23, 1983

DIGEST: 1. PROTEST AGAINST PROVISION PROVIDING FOR AGGREGATE AWARD OF FURNITURE ITEMS IN SOLICITATION APPARENT BEFORE BID OPENING IS DISMISSED AS UNTIMELY WHEN FILED AFTER BID OPENING BECAUSE GAO BID PROTEST PROCEDURES REQUIRE FILING PRIOR TO BID OPENING. 2. PROTEST RECEIVED IN GAO MORE THAN 10 DAYS AFTER PROTESTER BECOMES AWARE OF BASIS FOR PROTEST, OVERLAP BETWEEN ITEMS BEING SOLICITED UNDER IFB AND PROTESTER'S FEDERAL SUPPLY SCHEDULE CONTRACT FOR SOME ITEMS, IS UNTIMELY.

PULASKI FURNITURE CORPORATION:

PULASKI FURNITURE CORPORATION (PULASKI) PROTESTS THE DECEMBER 20, 1982, AWARD OF A CONTRACT BY THE DEPARTMENT OF THE AIR FORCE (AIR FORCE) UNDER INVITATION FOR BIDS (IFB) NO. F49642-81-B-0115 FOR DORMITORY FURNITURE. THIS PROCUREMENT WAS THE SUBJECT OF A PREAWARD PROTEST FILED BY STANLEY FURNITURE COMPANY (STANLEY) WHICH WE DENIED IN PART AND DISMISSED IN PART IN STANLEY FURNITURE COMPANY, B-206444, DECEMBER 2, 1982, 82-2 CPD 498. STANLEY REQUESTED RECONSIDERATION OF OUR DECISION AND WE AFFIRMED OUR DECISION IN STANLEY FURNITURE COMPANY REQUEST FOR RECONSIDERATION, B-206444.3, JANUARY 18, 1983, 83-1 CPD . ALTHOUGH PULASKI HAD NOT SUBMITTED A BID UNDER THIS IFB, IT SUBMITTED A LETTER EXPRESSING ITS VIEWS ON THE PROTEST AS AN "INTERESTED PARTY."

WE DISMISS PULASKI'S PROTEST AS UNTIMELY.

PULASKI ARGUES THAT THE IFB CALLING FOR AGGREGATE AWARD FOR UPHOLSTERED ITEMS, CASE GOODS AND MATTRESSES LIMITS COMPETITION TO A FEW MANUFACTURERS WHICH SUPPLY ALL THREE TYPES OF ITEMS AND THAT THIS AGGREGATE AWARD PROVISION WOULD ELIMINATE PULASKI AND OTHER BIDDERS FROM COMPETITION. PULASKI ALSO ARGUES THAT IT WAS AWARDED THE FEDERAL SUPPLY SCHEDULE (FSS) CONTRACT FOR OAK SEATING PIECES, WHICH IS EFFECTIVE JULY 1, 1982, THROUGH JUNE 30, 1983, AND THE AIR FORCE SHOULD HAVE MADE AWARD OF THE ITEM FOR OAK SEATING PIECES TO PULASKI, NOTWITHSTANDING THE AGGREGATE AWARD PROVISION.

THE ALLEGATION THAT THE AGGREGATE AWARD PROVISION CONTAINED IN THE IFB RESTRICTS COMPETITION CONCERNS AN ALLEGED IMPROPRIETY APPARENT IN THE SOLICITATION. UNDER OUR BID PROTEST PROCEDURES, ANY PROTEST BASED ON AN ALLEGED IMPROPRIETY IN THE SOLICITATION WHICH IS APPARENT PRIOR TO BID OPENING MUST BE FILED (RECEIVED) IN OUR OFFICE PRIOR TO BID OPENING. C.F.R. SEC. 21.2(B)(1) (1982). BID OPENING WAS DECEMBER 22, 1981. SINCE PULASKI DID NOT RAISE THIS MATTER UNTIL OVER 1 YEAR AFTER BID OPENING, IT IS UNTIMELY AND, THEREFORE, WILL NOT BE CONSIDERED ON THE MERITS.

PULASKI'S ARGUMENT THAT IT WAS ENTITLED TO AN AWARD FOR THE OAK CHAIR REQUIREMENT UNDER ITS FSS CONTRACT IS ALSO UNTIMELY. PULASKI FIRST RAISED THIS ISSUE AS AN INTERESTED PARTY UNDER THE STANLEY PROTEST IN A LETTER TO OUR OFFICE FILED ON AUGUST 20, 1982. AT THAT TIME, THE LETTER WAS NOT CONSIDERED AS A PROTEST BY OUR OFFICE. PULASKI DID NOT IN ANY WAY FOLLOW UP ON THIS ALLEGED PROTEST UNTIL OUR DENIAL AND DISMISSAL OF STANLEY'S PROTEST WAS AFFIRMED ON RECONSIDERATION AND AWARD WAS MADE UNDER THE IFB. HOWEVER, ASSUMING THAT THE AUGUST 20, 1982, FILING WAS A PROTEST, THE PROTEST WAS UNTIMELY. THIS IFB WAS ISSUED ON NOVEMBER 20, 1981. PULASKI STATES IT WAS AWARDED ITS FSS CONTRACT BEGINNING ON JULY 1, 1982. LETTER DATED JUNE 8, 1982, PULASKI SUBMITTED COMMENTS ON THE STANLEY PROTEST, THUS INDICATING IT WAS AWARE OF THIS IFB AT THE LATEST ON THAT DATE. THUS, ON JULY 1, 1982, THE EFFECTIVE DATE OF ITS FSS CONTRACT, PULASKI KNEW ITS BASIS OF PROTEST, THAT THE AIR FORCE'S IFB REQUIREMENT CONCERNING THE OAK FURNITURE ALLEGEDLY CONFLICTED WITH ITS FSS CONTRACT.

OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS OTHER THAN THOSE RELATING TO ALLEGED IMPROPRIETIES APPARENT IN THE SOLICITATION SHALL BE FILED NOT LATER THAN 10 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 21.2(B)(2) (1982). SINCE PULASKI KNEW THE BASIS OF ITS PROTEST AS OF JULY 1, 1982, THE PROTEST FILED MORE THAN 10 DAYS AFTER THIS DATE, ON AUGUST 20, 1982, IS UNTIMELY.

WE NOTE THAT PULASKI STATES IN ITS JANUARY 4, 1983, PROTEST LETTER TO GAO, THAT ITS PROTEST IS TIMELY UNDER OUR BID PROTEST PROCEDURES BECAUSE IT WAS FILED WITHIN 10 DAYS OF THE AIR FORCE'S DECEMBER 20 AWARD TO ANOTHER BIDDER. THIS IS NOT THE CASE FOR TWO REASONS. FIRST, PULASKI DID NOT SUBMIT A BID UNDER THIS PROCUREMENT AND WAS NOT ELIGIBLE FOR AWARD. THEREFORE, IT DID NOT HAVE A DIRECT AND SUBSTANTIAL INTEREST WITH REGARD TO THE AWARD AND IS NOT AN INTERESTED PARTY UNDER OUR BID PROTEST PROCEDURES FOR PURPOSES OF PROTESTING THE AWARD. SEE BAY RIDGE AMBULANCE & OXYGEN SERVICE, B-204018.3, SEPTEMBER 10, 1981, 81-2 CPD 211.

SECOND, ALTHOUGH PULASKI COULD HAVE BEEN AN INTERESTED PARTY TO ASSERT A TIMELY PROTEST AGAINST IMPROPRIETIES IN THE SOLICITATION, TO CONSIDER THESE ISSUES NOW WOULD RENDER OUR TIMELINESS REQUIREMENTS MEANINGLESS BECAUSE IT WOULD PERMIT THOSE, SUCH AS PULASKI IN THIS CASE, WHICH INITIALLY FAIL TO SUBMIT TIMELY PROTESTS BEFORE AWARD TO HAVE THE SAME ISSUES CONSIDERED UNDER THE GUISE OF A SUBSEQUENT POSTAWARD PROTEST. WE STATED IN CENTRAL TEXAS COLLEGE, B-208528.3, DECEMBER 22, 1982, 82-2 CPD 565, THIS WOULD CIRCUMVENT THE PURPOSE OF OUR TIMELINESS REQUIREMENTS, WHICH ARE DESIGNED TO GIVE PROTESTERS AND INTERESTED PARTIES A FAIR OPPORTUNITY TO PRESENT THEIR CASES WITH MINIMAL DISRUPTION TO THE ORDERLY AND EXPEDITIOUS PROCESS OF GOVERNMENT PROCUREMENTS.

WE DISMISS THE PROTEST.