B-218359, MAR 28, 1985, 85-1 CPD 376

B-218359, MAR 28, 1985, 85-1 CPD 376

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS DIGEST: PROTEST CONCERNING BRAND NAME OR EQUAL PROCUREMENT IS DISMISSED AS UNTIMELY WHERE PROTESTER INITIALLY FILED PROTEST AGAINST SPECIFICATION REQUIREMENT (A LISTED SALIENT CHARACTERISTIC) WITH CONTRACTING AGENCY AFTER THE INITIAL CLOSING DATE FOR RECEIPT OF PROPOSALS, NOTWITHSTANDING CONTRACTING AGENCY'S SUBSEQUENT FURTHER CLARIFICATION OF THE PROTESTED REQUIREMENT AND ESTABLISHMENT OF A SUBSEQUENT CLOSING DATE.

SYVA COMPANY:

SYVA COMPANY (SYVA) PROTESTS AS UNDULY RESTRICTIVE OF COMPETITION REQUEST FOR PROPOSALS (RFP) NO. DLA120-84-R-0774 ISSUED BY THE DEFENSE LOGISTICS AGENCY, DEFENSE PERSONNEL SUPPORT CENTER (DLA).

THE RFP SEEKS, ON A BRAND NAME OR EQUAL BASIS, A DRUG TEST SYSTEM WHICH EMPLOYS A RADIOIMMUNOASSAY TEST METHOD. SYVA PROTESTS BECAUSE THE SPECIFICATIONS BAR DRUG TEST SYSTEMS BASED ON THE ENZYME IMMUNOASSAY TEST METHOD USED BY SYVA. SYVA CONTENDS THAT ITS TEST METHOD IS FUNCTIONALLY EQUIVALENT TO THE REQUIRED TEST METHOD. DLA CONTENDS THAT SYVA'S PROTEST IS UNTIMELY SINCE THE DEFECT PROTESTED WAS APPARENT ON THE FACE OF THE SOLICITATION (A SPECIFICALLY LISTED SALIENT CHARACTERISTIC) AND SYVA'S INITIAL PROTEST CONCERNING THE MATTER WAS NOT FILED WITH DLA UNTIL AFTER THE CLOSING DATE FOR SUBMISSION OF INITIAL PROPOSALS.

WE DISMISS THE PROTEST.

SECTION 21.2(A)(3) OF OUR BID PROTEST REGULATIONS REQUIRES, AS A CONDITION PRECEDENT TO OUR SUBSEQUENT CONSIDERATION OF A PROTEST INITIALLY FILED WITH A CONTRACTING AGENCY, THAT THE INITIAL PROTEST BE FILED IN ACCORDANCE WITH THE TIME LIMITS PRESCRIBED IN SECTION 21.2(A)(1) AND SECTION 21.2(A)(2). 49 FED.REG. 49,419, 49,420 (1984) (TO BE CODIFIED AT 4 C.F.R. SEC. 21.2(A)). SECTION 21.2(A)(1) REQUIRES THAT PROTESTS AGAINST SPECIFICATION REQUIREMENTS BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS.

DLA REPORTS THAT THE RFP CLEARLY LISTED THE RADIOIMMUNOASSAY REQUIREMENT AS A SALIENT CHARACTERISTIC OF THIS BRAND NAME OR EQUAL PROCUREMENT. HAVE HELD THAT SALIENT CHARACTERISTICS MUST BE MET IN ORDER FOR A BID TO BE RESPONSIVE AND THAT A NONRESPONSIVE BID IS NOT CURED BY THE FACT THAT THE ITEMS OFFERED FUNCTION AS WELL AS ITEMS WHICH MEET THE SALIENT CHARACTERISTICS EVEN WHERE THE NONRESPONSIVE ITEMS SATISFY THE INTENT OF THE SPECIFICATIONS. PAUL F. PUGH & ASSOCIATED PROFESSIONAL ENGINEERS, B-199920, NOV. 12, 1980, 80-2 CPD PARA. 358. WE THEREFORE THINK THAT SYVA SHOULD HAVE KNOWN THAT THE PRESENCE OF THE RADIOIMMUNOASSAY SALIENT CHARACTERISTIC IN THE RFP WOULD PRECLUDE CONSIDERATION OF ITS PROPOSAL OFFERING AN ENZYME IMMUNOASSAY TEST METHOD INSTEAD. DLA FURTHER REPORTS THAT THE INITIAL CLOSING DATE WAS MAY 24, 1984, AND THAT SYVA FIRST PROTESTED THE RESTRICTIVE NATURE OF SPECIFICATIONS TO DLA ON JUNE 27, 1984 WELL AFTER THE CLOSING DATE. ALTHOUGH DLA SUBSEQUENTLY FURTHER CLARIFIED ITS NEED FOR THE RADIOIMMUNOASSAY REQUIREMENT BY AMENDMENT NO. 4 ISSUED FEBRUARY 28, 1985, WE DO NOT THINK THAT DLA'S ACTION RELIEVES SYVA OF THE DUTY OF PROTESTING THE REQUIREMENT PRIOR TO THE INITIAL CLOSING DATE WHERE IT IS, AS HERE, AN APPARENT SALIENT CHARACTERISTIC OF THE BRAND NAME OR EQUAL RFP.