B-210414, MAR 15, 1983

B-210414, MAR 15, 1983

DIGEST: POST-AWARD PROTEST BY POTENTIAL SUPPLIER OF ROOFING MATERIALS ALLEGING THAT SPECIFICATIONS REQUIRING GLASS FIBER ROOFING INSULATION ARE UNDULY RESTRICTIVE IS DISMISSED AS UNTIMELY. SINCE REQUIREMENT WAS CLEARLY STATED IN GOVERNMENT'S SOLICITATION, PROTEST SHOULD HAVE BEEN FILED BEFORE BID OPENING.

MANVILLE BUILDING MATERIALS CORPORATION:

MANVILLE BUILDING MATERIALS CORPORATION, A SUPPLIER OF ROOFING MATERIAL, PROTESTS THE SPECIFICATIONS UNDER A PRIME CONTRACT FOR ROOF CONSTRUCTION, NO. F05611-82-C-0126, BETWEEN C.P.CONSTRUCTION, INC. AND THE DEPARTMENT OF THE AIR FORCE, UNITED STATES AIR FORCE ACADEMY, COLORADO. ACCORDING TO MANVILLE, GOVERNMENT OFFICIALS HAVE REFUSED TO PERMIT THE PRIME CONTRACTOR TO USE AS AN "ALTERNATIVE" ROOFING SYSTEM TO THAT SPECIFIED A LESS EXPENSIVE BUT COMPARABLE ROOFING SYSTEM PROPOSED BY MANVILLE BASED ON ITS OWN SPECIFICATIONS.

THE AIR FORCE SOLICITED BIDS FOR THIS ROOF REPAIR PROJECT UNDER INVITATION FOR BIDS NO. FO5611-82-B-0108, WHICH WAS ISSUED ON JULY 22, 1982 AND IN RESPONSE TO WHICH BIDS WERE SUBMITTED ON AUGUST 23, 1982. HAVE BEEN INFORMALLY ADVISED BY THE AIR FORCE THAT THE CONTRACT WAS AWARDED TO C.P.CONSTRUCTION ON AUGUST 25. THE SOLICITATION SPECIFICATIONS REQUIRED THE USE OF FIBROUS GLASS INSULATION, WHICH MANVILLE DOES NOT MANUFACTURE.

ACCORDING TO MANVILLE, AT ITS URGING C.P.CONSTRUCTION, AFTER AWARD, OFFERED TO PROVIDE THE GOVERNMENT WITH AN "ALTERNATE" ROOFING SYSTEM TO THAT SPECIFIED USING PERLITE INSULATION, WHICH MANVILLE MANUFACTURES, AT A LOWER PRICE. THIS REQUEST WAS DENIED ON NOVEMBER 8. WHEN MANVILLE COULD NOT PERSUADE THE AIR FORCE TO CHANGE ITS POSITION THROUGH FURTHER DISCUSSIONS, MANVILLE FILED A PROTEST WITH OUR OFFICE ON JANUARY 7, 1983.

MANVILLE BELIEVES THAT THE GOVERNMENT'S INSISTENCE ON GLASS FIBER ROOFING INSULATION IS UNDULY RESTRICTIVE. ACCORDING TO MANVILLE, SUCH MATERIAL IS AVAILABLE AT EXCESSIVE COST ONLY FROM ONE MANUFACTURER AND THE REQUIREMENT FOR IT EXCEEDS THE MINIMUM NEEDS OF THE AGENCY. (THE GOVERNMENT'S SPECIFICATIONS IN QUESTION ARE APPARENTLY BASED ON AIR FORCE MANUAL 91-36 WHICH PRESCRIBES MATERIALS FOR PROJECTS OF THIS TYPE.) FOR THE REASONS DISCUSSED BELOW, WE FIND THE PROTEST TO BE UNTIMELY.

IT IS UNDISPUTED THAT THE PRIME CONTRACT SOLICITATION CALLED FOR THE USE OF GLASS FIBER ROOFING INSULATION. UNDER OUR BID PROTEST PROCEDURES, PROTESTS CONCERNING DEFECTS APPARENT IN A PRIME CONTRACT SOLICITATION MUST BE FILED BEFORE BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS, AS APPROPRIATE. 4 C.F.R. SEC. 21.2(B)(1) (1982); TRULAND CORPORATION; COMPUGUARD CORPORATION, B-189505, SEPTEMBER 26, 1977, 77-2 CPD 226. THIS RESPECT, THE GOVERNMENT PUBLISHED THE REQUIREMENT IN THE COMMERCE BUSINESS DAILY; WE HAVE HELD THAT SUCH PUBLICATION CONSTITUTES CONSTRUCTIVE NOTICE OF A SYNOPSIZED SOLICITATION AND ITS CONTENTS. LUTZ SUPERDYNE, INC., B-201553, FEBRUARY 20, 1981, 81-1 CPD 122.

THE RECORD IS UNCLEAR WHETHER MANVILLE KNEW OF THE PRESENT SOLICITATION AND ITS REQUIREMENTS FOR FIBROUS GLASS INSULATION PRIOR TO BID OPENING IN AUGUST 1982. HOWEVER, EVEN IF MANVILLE WAS UNAWARE OF THE ACTUAL TERMS OF THE SOLICITATION, ITS PROTEST IS NEVERTHELESS UNTIMELY BECAUSE, AS STATED ABOVE, WE HAVE HELD THAT PUBLICATION IN THE COMMERCE BUSINESS DAILY CONSTITUTES CONSTRUCTIVE NOTICE OF THE SOLICITATION CONTENTS TO ALL PARTIES. WE HAVE RECOGNIZED THAT THIS RULE ATTRIBUTING CONSTRUCTIVE KNOWLEDGE OF A SOLICITATION RESTRICTION TO A SUBCONTRACTOR MAY BE SOMEWHAT HARSH WHEN APPLIED TO A PROTESTER WHO ACTUALLY MAY HAVE BEEN UNAWARE OF THE SUBCONTRACTING RESTRICTION. WE BELIEVE, HOWEVER, THAT THE RULE IS NECESSARY TO MINIMIZE THE POTENTIAL FOR ABUSE AT LEAST IN THOSE INSTANCES WHERE IT OTHERWISE WOULD BE POSSIBLE FOR A SUBCONTRACTOR TO FILE A PROTEST THAT WOULD BE UNTIMELY IF IT WERE FILED BY THE PRIME CONTRACTOR. LUMASIDE, INC., B-205220, B-205220.2, DECEMBER 16, 1981, 81-2 CPD 481. BELIEVE THE SAME PRINCIPLE IS APPLICABLE TO POTENTIAL MATERIAL SUPPLIERS OF PRIME CONTRACTORS. SINCE MANVILLE DID NOT PROTEST PRIOR TO BID OPENING, ITS PROTEST IS UNTIMELY.

MANVILLE ARGUES THAT EVEN IF ITS PROTEST SHOULD BE CONSIDERED UNTIMELY IT SHOULD BE CONSIDERED ON THE MERITS UNDER THE EXCEPTIONS TO THE TIMELINESS REQUIREMENTS SET FORTH IN OUR BID PROTEST PROCEDURES, SEC. 21.2(C). THAT RULE PROVIDES THAT AN UNTIMELY PROTEST MAY BE CONSIDERED IF IT RAISES A QUESTION OF SIGNIFICANCE TO PROCUREMENT PRACTICES OR PROCEDURES, OR FOR GOOD CAUSE SHOWN.

WE DO NOT CONSIDER THAT MANVILLE'S PROTEST PRESENTS A SIGNIFICANT ISSUE. THE SIGNIFICANT ISSUE EXCEPTION TO OUR TIMELINESS RULE IS LIMITED TO ISSUES WHICH ARE OF WIDESPREAD INTEREST TO THE ENTIRE PROCUREMENT COMMUNITY AND IS EXERCISED SPARINGLY SO THAT TIMELINESS STANDARDS DO NOT BECOME MEANINGLESS. IT IS NOT CLEAR TO US WHY MANVILLE'S CONCERNS SHOULD BE VIEWED AS OF SUCH WIDESPREAD INTEREST. IN ANY EVENT, MANVILLE ACKNOWLEDGES THAT FUTURE INDIVIDUAL ROOFING REQUIREMENTS FOR AIR FORCE INSTALLATIONS WOULD CONTAIN THE SPECIFICATION IN QUESTION. WE SEE NO REASON WHY MANVILLE CANNOT LEARN OF SUCH FUTURE AIR FORCE PROJECTS THROUGH THE COMMERCE BUSINESS DAILY OR OTHERWISE AND PROTEST THE SPECIFICATIONS IN A TIMELY FASHION AT THAT TIME. FURTHER, DESPITE MANVILLE'S ASSERTION OF "EXCESSIVE COSTS" BEING INCURRED DUE TO THE ALLEGEDLY RESTRICTIVE SPECIFICATIONS, THE SIGNIFICANCE OF AN ISSUE FOR PURPOSES OF THIS EXCEPTION DOES NOT DEPEND UPON THE AMOUNT OF MONEY INVOLVED. COMP.GEN.20, 23 (1973). WE THEREFORE DO NOT BELIEVE THAT THIS PROTEST PRESENTS A SIGNIFICANT ISSUE FOR OUR CONSIDERATION.

FINALLY, ALTHOUGH WE WOULD CONSIDER AN UNTIMELY PROTEST FOR "GOOD CAUSE SHOWN," THIS REFERS TO SOME COMPELLING REASON BEYOND THE PROTESTER'S CONTROL WHICH PREVENTED IT FROM FILING A TIMELY PROTEST. INTERNATIONAL COMPUTAPRINT CORP., B-186948, OCTOBER 28, 1976, 76-2 CPD 357. THE RECORD IN THIS CASE REVEALS NO SUCH REASON.

ACCORDINGLY, THIS PROTEST IS DISMISSED.