B-211119, MAR 30, 1983

B-211119: Mar 30, 1983

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GAO DISMISSES PROTEST AS UNTIMELY WHERE IT IS FILED MORE THAN 10 WORKING DAYS AFTER NOTICE OF INITIAL ADVERSE AGENCY ACTION AND SIGNIFICANT ISSUE IS NOT PRESENT TO JUSTIFY EXCEPTION TO THE APPLICATION OF GAO BID PROTEST PROCEDURES. 2. PROTEST THAT AWARDEE IS NOT COMPLYING WITH CONTRACT REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION NOT FOR RESOLUTION UNDER BID PROTEST PROCEDURES. CENTRAL PROTESTED TO THE AIR FORCE THAT COMPUCORP'S OFFER WAS IMPROPERLY DETERMINED TECHNICALLY ACCEPTABLE. CENTRAL ALSO PROTESTS TO OUR OFFICE THAT THE EQUIPMENT COMPUCORP IS CURRENTLY DELIVERING UNDER ITS CONTRACT DOES NOT AND CANNOT MEET THE SPECIFICATIONS. WE DISMISS THE PROTEST IN PART AS UNTIMELY AND DISMISS THE ALLEGATION THAT COMPUCORP IS SUPPLYING EQUIPMENT WHICH DOES NOT MEET CONTRACT REQUIREMENTS BECAUSE THIS ALLEGATION CONCERNS A MATTER OF CONTRACT ADMINISTRATION WHICH GAO DOES NOT REVIEW.

B-211119, MAR 30, 1983

DIGEST: 1. GAO DISMISSES PROTEST AS UNTIMELY WHERE IT IS FILED MORE THAN 10 WORKING DAYS AFTER NOTICE OF INITIAL ADVERSE AGENCY ACTION AND SIGNIFICANT ISSUE IS NOT PRESENT TO JUSTIFY EXCEPTION TO THE APPLICATION OF GAO BID PROTEST PROCEDURES. 2. PROTEST THAT AWARDEE IS NOT COMPLYING WITH CONTRACT REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION NOT FOR RESOLUTION UNDER BID PROTEST PROCEDURES.

CENTRAL TEXAS WORD PROCESSING, INC.:

CENTRAL TEXAS WORD PROCESSING, INC. (CENTRAL), PROTESTS THE AWARD OF A CONTRACT TO COMPUCORP UNDER REQUEST FOR PROPOSALS (RFP) NO. F41689-82 R- 0014, FOR AN AUTOMATIC INFORMATION PROCESSING SYSTEM, ISSUED BY THE DEPARTMENT OF THE AIR FORCE. CENTRAL PROTESTS THE DENIAL OF ITS PROTEST BY THE AIR FORCE. CENTRAL PROTESTED TO THE AIR FORCE THAT COMPUCORP'S OFFER WAS IMPROPERLY DETERMINED TECHNICALLY ACCEPTABLE. CENTRAL ALSO PROTESTS TO OUR OFFICE THAT THE EQUIPMENT COMPUCORP IS CURRENTLY DELIVERING UNDER ITS CONTRACT DOES NOT AND CANNOT MEET THE SPECIFICATIONS.

WE DISMISS THE PROTEST IN PART AS UNTIMELY AND DISMISS THE ALLEGATION THAT COMPUCORP IS SUPPLYING EQUIPMENT WHICH DOES NOT MEET CONTRACT REQUIREMENTS BECAUSE THIS ALLEGATION CONCERNS A MATTER OF CONTRACT ADMINISTRATION WHICH GAO DOES NOT REVIEW.

PRIOR TO AWARD OF THIS CONTRACT, ON JANUARY 20, 1983, CENTRAL STATES IT FILED A PROTEST WITH THE AIR FORCE, CHALLENGING THE "RESPONSIVENESS," THAT IS, TECHNICAL ACCEPTABILITY OF COMPUCORP'S PROPOSAL. BY LETTER OF FEBRUARY 16, 1983, RECEIVED BY CENTRAL ON FEBRUARY 23, 1983, THE AIR FORCE RESPONDED TO CENTRAL, ADVISING, IN ESSENCE, THAT COMPUCORP WAS IN COMPLIANCE WITH ALL THE MANDATORY SPECIFICATIONS OF THE RFP AND, THEREFORE, TECHNICALLY ACCEPTABLE. ALSO, BY LETTER OF FEBRUARY 16, 1983, RECEIVED BY CENTRAL ON FEBRUARY 23, 1983, THE AIR FORCE NOTIFIED CENTRAL THAT COMPUCORP WAS AWARDED THE CONTRACT. BY LETTER DATED FEBRUARY 20, 1983, PRIOR TO RECEIPT OF THE AIR FORCE LETTERS, CENTRAL FILED A SECOND PROTEST WITH THE AGENCY, AGAIN ARGUING THAT COMPUCORP'S OFFER DID NOT COMPLY WITH THE SPECIFICATIONS AND THAT AWARD TO COMPUCORP WAS IMPROPER. IN A LETTER DATED MARCH 14, FILED ON MARCH 15, 1983, CENTRAL PROTESTED TO GAO.

UNDER 4 C.F.R. SEC. 21.2(A) (1982), IF A PROTEST IS FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO OUR OFFICE MUST BE FILED WITHIN 10 WORKING DAYS OF THE PROTESTER'S LEARNING OF INITIAL ADVERSE ACTION ON THE PROTEST. THE AIR FORCE'S INITIAL ADVERSE ACTIONS, DENIAL OF CENTRAL'S PROTEST OF JANUARY 20, 1983, AND AWARD TO COMPUCORP, WERE KNOWN TO CENTRAL BY FEBRUARY 23, 1983, WHEN CENTRAL CONCEDES IT RECEIVED FORMAL NOTICE OF THESE AGENCY ACTIONS, ALTHOUGH THE FEBRUARY 20, 1983, LETTER INDICATES THAT CENTRAL MAY HAVE KNOWN OF THE AWARD AT AN EARLIER DATE. SINCE THE PROTEST WAS NOT FILED HERE UNTIL MARCH 15, IT IS UNTIMELY FILED AND WILL NOT BE CONSIDERED ON THE MERITS.

CENTRAL CONTENDS THAT EVEN IF UNTIMELY, THE PROTEST SHOULD BE CONSIDERED AS A SIGNIFICANT ISSUE UNDER 4 C.F.R. SEC. 21.2(C) (1982) BECAUSE COMPUCORP WAS DETERMINED TECHNICALLY ACCEPTABLE WHEN IT SHOULD NOT HAVE BEEN AND COMPUCORP WAS IMPROPERLY AWARDED A CONTRACT UNDER SIMILAR CIRCUMSTANCES BY THE LIBRARY OF CONGRESS. CENTRAL ALLEGES A PATTERN OF IMPROPER ACTIONS BY THIS CONTRACTOR TO OBTAIN AUTOMATIC INFORMATION PROCESSING SYSTEMS CONTRACTS.

THE SIGNIFICANT ISSUE EXCEPTION TO OUR TIMELINESS RULES, WHICH IS EXERCISED SPARINGLY SO THAT OUR TIMELINESS STANDARDS DO NOT BECOME MEANINGLESS, CONTEMPLATES A PROTEST WHICH INVOLVES A PROCUREMENT PRINCIPLE OF WIDESPREAD INTEREST OR WHICH AFFECTS A BROAD CLASS OF PROCUREMENTS. CANNON DIVISION OF ITT CORP., B-208575, NOVEMBER 1, 1982, 82-2 CPD 393. THE ISSUE IN THIS PROTEST CONCERNS THE CONDUCT OF THIS PROCUREMENT AND IS NOT A PROTEST WHICH INVOLVES A PROCUREMENT PRINCIPLE OF WIDESPREAD INTEREST OR WHICH AFFECTS A BROAD CLASS OF PROCUREMENTS. AS A CONSEQUENCE, THE ISSUE IS NOT OF SUFFICIENT IMPACT TO WARRANT OUR REVIEW UNDER OUR SIGNIFICANT ISSUE EXCEPTION. MOREOVER, THE TECHNICAL ACCEPTABILITY OF A PROPOSAL, THE ISSUE RAISED BY CENTRAL, HAS BEEN CONSIDERED FREQUENTLY IN PREVIOUS DECISIONS ISSUED BY OUR OFFICE, AND SUCH ISSUES ARE NOT CONSIDERED "SIGNIFICANT" WITHIN THE MEANING OF THE PROVISIONS IN OUR PROCEDURES. SEE QUESTAR DATA CORPORATION, B-199769, NOVEMBER 28, 1980, 80-2 CPD 403.

WITH REGARD TO CENTRAL'S ASSERTION THAT ON MARCH 11, 1983, IT LEARNED THAT COMPUCORP IS DELIVERING UNITS WHICH DO NOT AND CANNOT MEET THE CONTRACT REQUIREMENTS, WE HAVE HELD THAT WHETHER THE AWARDEE PERFORMS IN ACCORDANCE WITH THE CONTRACT REQUIREMENTS IS A MATTER OF CONTRACT ADMINISTRATION, WHICH IS THE RESPONSIBILITY OF THE CONTRACTING ACTIVITY. BOWERS COMPANIES, B-209488, NOVEMBER 22, 1982, 82-2 CPD 468. IF IT IS DETERMINED THAT THE AWARDEE IS NOT COMPLYING WITH ALL THE CONTRACT PROVISIONS, THE CONTRACT MAY BE TERMINATED FOR DEFAULT. HOWEVER, OUR OFFICE DOES NOT REVIEW SUCH MATTERS UNDER OUR BID PROTEST PROCEDURES. BOWERS COMPANIES, SUPRA.

WE DISMISS THE PROTEST.