B-216830, JAN 18, 1985, 85-1 CPD 59
Highlights
CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: A PROTEST BASED UPON ALLEGED SOLICITATION AMBIGUITIES WHICH ARE NOT APPARENT UNTIL AFTER BID OPENING IS UNTIMELY UNLESS FILED WITHIN 10 DAYS OF WHEN THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. WHICHEVER IS EARLIER. WHICH IT ASSERTS WERE NOT APPARENT UNTIL AFTER BID OPENING. IS FOR FURNISHING AND SERVICING CHEMICAL LATRINES AT VARIOUS LOCATIONS WITHIN 70 MILES OF THE MISSILE RANGE HEADQUARTERS. ITS BID WAS THEREFORE RE-CALCULATED WHEN BIDS WERE OPENED. THUS DID NOT PROTEST THE AMBIGUITY UNTIL AFTER THE BIDS WERE OPENED. WHITE SANDS ARGUES THAT THE PROTEST IS UNTIMELY.
B-216830, JAN 18, 1985, 85-1 CPD 59
CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: A PROTEST BASED UPON ALLEGED SOLICITATION AMBIGUITIES WHICH ARE NOT APPARENT UNTIL AFTER BID OPENING IS UNTIMELY UNLESS FILED WITHIN 10 DAYS OF WHEN THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER.
LONE STAR SANITARY SERVICE:
LONE STAR SANITARY SERVICE PROTESTS THE AWARD OF A REQUIREMENTS CONTRACT FOR SANITATION SERVICES UNDER DEPARTMENT OF THE ARMY INVITATION FOR BIDS (IFB) DAAD07-84-B0041. LONE STAR BASES ITS PROTEST ON ALLEGED AMBIGUITIES IN THE SPECIFICATIONS, WHICH IT ASSERTS WERE NOT APPARENT UNTIL AFTER BID OPENING.
WE DISMISS THE PROTEST.
THE SOLICITATION, ISSUED BY WHITE SANDS MISSILE RANGE IN NEW MEXICO (WHITE SANDS), IS FOR FURNISHING AND SERVICING CHEMICAL LATRINES AT VARIOUS LOCATIONS WITHIN 70 MILES OF THE MISSILE RANGE HEADQUARTERS. THE IFB INCLUDED INSTRUCTIONS FOR COMPUTING TOTAL BID AMOUNTS UNDER THE ONE- YEAR CONTRACT BY USING ESTIMATES OF QUANTITIES AND ESTIMATES OF THE DURATION OF THEIR USE. LONE STAR DID NOT UNDERSTAND OR FOLLOW THESE INSTRUCTIONS IN THE WAY WHITE SANDS INTENDED THEM, AND ITS BID WAS THEREFORE RE-CALCULATED WHEN BIDS WERE OPENED. LONE STAR ASSERTS THAT IT ASSUMED IT CORRECTLY UNDERSTOOD THE BID INSTRUCTIONS, AND THUS DID NOT PROTEST THE AMBIGUITY UNTIL AFTER THE BIDS WERE OPENED.
WHITE SANDS ARGUES THAT THE PROTEST IS UNTIMELY, SINCE ANY ALLEGED IMPROPRIETIES APPARENT IN A SOLICITATION BEFORE BID OPENING MUST BE PROTESTED PRIOR TO THE OPENING OF BIDS. 4 C.F.R. SECS. 21.2(B)(1) (1984). LONE STAR, HOWEVER, ASSUMED PRIOR TO BID OPENING THAT IT HAD CORRECTLY UNDERSTOOD THE SPECIFICATIONS, AND THEREFORE WAS COMPLETELY UNAWARE OF THE AMBIGUITY UNTIL THAT TIME. WHERE AN AMBIGUITY IS ALLEGED AS THE RESULT OF AN AWARD UNDER REQUIREMENTS WHICH HAD INITIALLY APPEARED UNAMBIGUOUS, A PROTEST TO OUR OFFICE NEED ONLY BE FILED WITHIN 10 DAYS OF WHEN THE BASIS OF THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN. SEE HONEYWELL, INC., B-199024, AUG. 21, 1981, 81-2 CPD PARA. 137.
IN THIS CASE, ALTHOUGH LONE STAR ASSERTS IT HAD NO NEED TO PROTECT BEFORE BID OPENING, WE FIND THAT THE BASIS OF THE PROTEST DID BECOME APPARENT BY SEPTEMBER 17, WHEN THE PROTESTER DISCUSSED THE IFB TERMS AND THE AGENCY'S INTERPRETATION OF THEM WITH THE CONTRACTING OFFICER AND VERIFIED ITS BID. OUR BID PROTEST PROCEDURES REQUIRE THAT SUCH PROTESTS EITHER BE FILED WITH THE AGENCY OR WITH US WITHIN 10 DAYS OF WHEN THE BASIS OF THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SECS. 21.2(A)(2) (1984). IN THIS CASE, LONE STAR FILED ITS PROTEST ORALLY WITH THE AGENCY ON OCTOBER 2, CONFIRMED THAT PROTEST IN WRITING ON OCTOBER 5 AND SUBSEQUENTLY FILED A PROTEST WITH OUR OFFICE ON OCTOBER 15. ALL OF THESE ACTIONS WERE BEYOND THE 10 DAY PERIOD AFTER IT DISCUSSED THE IFB TERMS WITH THE CONTRACTING OFFICER.
THE PROTEST IS DISMISSED.