B-218980, AUG 1, 1985, 85-2 CPD 116

B-218980: Aug 1, 1985

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PROTEST THAT PROCUREMENT SHOULD HAVE BEEN CONDUCTED UNDER BROOKS ACT PROCEDURES FOR PROCURING ARCHITECT-ENGINEERING SERVICES IS UNTIMELY WHEN FILED AFTER THE DATE RESPONSES TO THE SOLICITATION. WERE DUE. PROTEST THAT AGENCY DISCLOSED CONFIDENTIAL PRICE INFORMATION IS UNTIMELY SINCE IT WAS NOT FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN OF THE PROTESTED ACTIONS. PROTESTER'S CONTENTION THAT IT HAD PREVIOUSLY CONTRACTED FOR DESIGN SERVICES BEING PROCURED AND THAT AGENCY EMPLOYEES LED IT TO BELIEVE THAT ITS CONTRACTS WERE SIGNED IS DISMISSED AS UNTIMELY. SINCE IT WAS NOT FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN THE BASIS FOR ITS PROTEST.

B-218980, AUG 1, 1985, 85-2 CPD 116

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS DIGEST: 1. PROTEST THAT PROCUREMENT SHOULD HAVE BEEN CONDUCTED UNDER BROOKS ACT PROCEDURES FOR PROCURING ARCHITECT-ENGINEERING SERVICES IS UNTIMELY WHEN FILED AFTER THE DATE RESPONSES TO THE SOLICITATION. WERE DUE. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER 2. PROTEST THAT AGENCY DISCLOSED CONFIDENTIAL PRICE INFORMATION IS UNTIMELY SINCE IT WAS NOT FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN OF THE PROTESTED ACTIONS. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER 3. PROTESTER'S CONTENTION THAT IT HAD PREVIOUSLY CONTRACTED FOR DESIGN SERVICES BEING PROCURED AND THAT AGENCY EMPLOYEES LED IT TO BELIEVE THAT ITS CONTRACTS WERE SIGNED IS DISMISSED AS UNTIMELY, SINCE IT WAS NOT FILED WITHIN 10 WORKING DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN THE BASIS FOR ITS PROTEST. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SIGNIFICANT ISSUE EXCEPTION - NOT FOR APPLICATION 4. GAO WILL NOT INVOKE "SIGNIFICANT ISSUES" OR "GOOD CAUSE" EXCEPTIONS TO TIMELINESS REQUIREMENTS WHERE THE UNTIMELY PROTEST DOES NOT RAISE ISSUES OF FIRST IMPRESSION WHICH WOULD HAVE WIDESPREAD SIGNIFICANCE TO THE PROCUREMENT COMMUNITY AND NO COMPELLING REASON BEYOND THE PROTESTER'S CONTROL PREVENTED TIMELY FILING. CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST 5. PROTESTER'S ARGUMENT THAT PROCURING AGENCY WOULD NOT BE PREJUDICED BY CONSIDERATION OF UNTIMELY PROTEST IS REJECTED SINCE TIMELINESS PROVISION OF BID PROTEST REGULATIONS IS TO BE STRICTLY ENFORCED SAVE FOR EXCEPTIONS INVOLVING "SIGNIFICANT ISSUES" AND "GOOD CAUSE," WHICH ARE NOT PRESENT IN PROTEST.

J. ELLIS DESIGNS:

J. ELLIS DESIGNS (JED) PROTESTS THE AWARD OF CONTRACTS ISSUED UNDER PURCHASE ORDERS N00019-85-M-0279, -0280, -0281, AND -0282, BY THE DEPARTMENT OF THE NAVY, NAVAL AIR SYSTEMS COMMAND (NAVAIR), TO ELENA SCHURTER FOR FURNITURE LAYOUT DESIGN SERVICES. JED CONTENDS THAT AWARD OF THE CONTRACTS BASED ON THE LOWEST BID VIOLATES THE PROCEDURES FOR THE PROCUREMENT OF ARCHITECTURAL AND ENGINEERING SERVICES CONTAINED IN THE BROOKS ACT, 40 U.S.C. PARA. 541, ET SEQ. (1982), THAT NAVAIR DISCLOSED CONFIDENTIAL PRICE INFORMATION TO COMPETITORS AND THAT JED ALREADY HAD CONTRACTS FOR THE DESIGN SERVICES.

WE DISMISS THE PROTEST AS UNTIMELY.

JED CONTENDS THAT NAVAIR SHOULD HAVE SECURED ITS DESIGN SERVICES THROUGH THE SPECIAL PROCEDURES PRESCRIBED IN THE BROOKS ACT, 40 U.S.C. SEC. 541, ET SEQ. (1982), FOR THE PROCUREMENT OF ARCHITECTURAL AND ENGINEERING SERVICES. NAVAIR PROCURED THE DESIGN SERVICES UNDER THE SMALL PURCHASE PROCEDURES OUTLINED IN THE FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. PART 13 (1984). ACCORDING TO NAVAIR, THE CONTRACTING OFFICER EXPLAINED THE SOURCE SELECTION PROCEDURES DURING AN APRIL 30, 1985, MEETING WITH POTENTIAL OFFERORS, INCLUDING JED. TO BE TIMELY, A PROTEST AGAINST THE PROCEDURES USED IN THE SOLICITATION MUST HAVE BEEN FILED BEFORE RESPONSES TO THE SOLICITATION WERE DUE. 4 C.F.R. SEC. 21.2(A)(1) (1985). SINCE JED DID NOT PROTEST THE PROCEDURES TO OUR OFFICE UNTIL MAY 28, 1985, AFTER THE MAY 3, 1985, DATE THAT RESPONSES TO THE SOLICITATION WERE DUE, ITS PROTEST ON THIS ISSUE IS UNTIMELY AND WILL NOT BE CONSIDERED. ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS, B-217408, JAN. 18, 1985, 85-1 CPD PARA. 61.

JED ARGUES THAT EVEN IF UNTIMELY, ITS PROTEST ON THIS ISSUE SHOULD BE CONSIDERED UNDER THE SIGNIFICANT ISSUE EXCEPTION TO OUR TIMELINESS RULES. SEE 4 C.F.R. SEC. 21.2(C) (1985). OUR OFFICE WILL REVIEW AN UNTIMELY PROTEST UNDER THE SIGNIFICANT ISSUE EXCEPTION ONLY WHEN THE MATTER RAISED IS ONE OF WIDESPREAD INTEREST TO THE PROCUREMENT COMMUNITY AND HAS NOT BEEN CONSIDERED ON THE MERITS IN PREVIOUS DECISIONS. ASSOCIATION OF SOIL AND FOUNDATION ENGINEERS, B-217408, SUPRA, AT 2. WHETHER OR NOT BROOKS ACT PROCEDURES SHOULD BE USED IN A PARTICULAR PROCUREMENT HAS BEEN CONSIDERED BY THIS OFFICE IN PRIOR DECISIONS, AND WE HAVE HELD THAT THE QUESTION IS NOT A SIGNIFICANT ISSUE. NIELSON, MAXWELL & WANGSGARD, 61 COMP.GEN. 370 (1982), 82-1 CPD PARA. 381.

WE ALSO CONSIDER UNTIMELY JED'S CONTENTION THAT NAVAIR DISCLOSED CONFIDENTIAL PRICE INFORMATION. ACCORDING TO JED, AT AN APRIL 30, 1985 MEETING WITH BIDDERS, A NAVAIR EMPLOYEE OPENED A NOTEBOOK TO ANSWER A QUESTION THAT HAD BEEN ASKED AND EXPOSED A PAGE CONTAINING JED'S PREVIOUSLY SUBMITTED PRICE QUOTES. JED CONTENDS OTHER BIDDERS WERE IN A POSITION TO SEE THE EXPOSED FIGURES, BUT NAVAIR MAINTAINS THAT THE INFORMATION COULD NOT BE SEEN BY ANYONE OTHER THAN JED. JED ALSO ARGUES THAT ITS CONFIDENTIAL BID INFORMATION WAS DISCLOSED SEVERAL WEEKS EARLIER, BEFORE NAVAIR DECIDED TO COMPETITIVELY PROCURE THE DESIGN SERVICES, WHEN JED, NAVAIR AND A NAVY SUPPORT SERVICES CONTRACTOR MET TO DISCUSS THE POSSIBILITY OF ARRANGING PAYMENT FOR THE DESIGN SERVICES THROUGH THE SUPPORT SERVICES CONTRACTOR.

JED'S PROTEST OF THIS ISSUE ON MAY 28, 1985, IS UNTIMELY UNDER 4 C.F.R. 21.2(A)(2) (1985) BECAUSE JED DID NOT PROTEST WITHIN 10 WORKING DAYS AFTER IT KNEW OR SHOULD HAVE KNOWN OF THE BASIS FOR ITS PROTEST. HARRY KAHN ASSOCIATES, INC., B-216306.2, JUNE 28, 1985, 85-1 CPD PARA. 739. WHILE JED URGES THAT THIS PROTEST ISSUE FALLS UNDER THE SIGNIFICANT ISSUE EXCEPTION, WE HAVE CONSIDERED THE ISSUE OF DISCLOSURE OF AN OFFEROR'S PRICE INFORMATION TO A COMPETITOR AND WILL NOT INVOKE THE EXCEPTION HERE. SEE T M SYSTEMS, INC., B-185715, MAY 4, 1976, 76-1 CPD PARA. 299; SWEDLOW INC., 53 COMP.GEN. 139 (1973).

JED'S PROTEST THAT IT HAD PREVIOUSLY CONTRACTED FOR THE DESIGN SERVICES AND THAT NAVAIR EMPLOYEES LED IT TO BELIEVE THAT ITS CONTRACTS WERE SIGNED IS ALSO UNTIMELY. ACCORDING TO NAVAIR, NAVAIR INFORMED JED ON APRIL 24, 1985, THAT IT WAS GOING TO CONDUCT A COMPETITIVE PROCUREMENT FOR THE DESIGN WORK FOR WHICH JED ALLEGEDLY ALREADY HAD A CONTRACT. JED THUS KNEW OR SHOULD HAVE KNOWN THE BASIS FOR ITS PROTEST BY APRIL 24 AND SHOULD HAVE PROTESTED WITHIN 10 WORKING DAYS. 4. C.F.R. SEC. 21.2(A)(2) (1985). BECAUSE JED DID NOT PROTEST THIS ISSUE UNTIL MAY 28, 1985, ITS PROTEST IS UNTIMELY. MOREOVER, THIS PART OF JED'S PROTEST DOES NOT MEET THE REQUIREMENTS OF THE SIGNIFICANT ISSUES EXCEPTION BECAUSE WE HAVE CONSIDERED ISSUES OF AUTHORITY TO CONTRACT AND IMPLIED CONTRACTS IN THE PAST. SEE PATTON READING SERVICES, INC., B-215792, JAN. 8, 1985, 85-1 CPD PARA. 24; TMG & PARTNERS, ARCHITECTS, B-206077.2, JUNE 14, 1982, 82-1 CPD PARA. 576.

JED ALSO ATTEMPTS TO INVOKE THE "GOOD CAUSE" EXCEPTION TO THE TIMELINESS REQUIREMENTS. 4 C.F.R. SEC. 21.2(C) (1985). THE GOOD CAUSE EXCEPTION IS LIMITED TO CIRCUMSTANCES WHERE SOME COMPELLING REASON BEYOND THE PROTESTER'S CONTROL PREVENTS THE PROTESTER FROM FILING A TIMELY PROTEST. KNOX MANUFACTURING CO.-- REQUEST FOR RECONSIDERATION, B-218132.2, MAR. 6, 1985, 85-1 CPD PARA. 281. THAT IS NOT THE CASE HERE.

FINALLY, JED CONTENDS THAT NAVAIR WOULD NOT BE PREJUDICED BY OUR CONSIDERATION OF ITS PROTEST AT THIS TIME. HOWEVER, THE TIMELINESS PROVISIONS OF OUR BID PROTEST REGULATIONS ARE TO BE ENFORCED, ABSENT THE EXCEPTIONS DISCUSSED ABOVE, AND DO NOT INVOLVE THE CONCEPT OF PREJUDICE TO THE PROCURING AGENCY. MARCONI ELECTRONICS, INC., B-218088.4, MAR. 27, 1985, 85-1 CPD PARA. 368. CONSEQUENTLY, WE REJECT JED'S "PREJUDICE" ARGUMENT.

JED'S REQUEST FOR A CONFERENCE AS PROVIDED FOR IN OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.5 (1985), IS DENIED BECAUSE, WHERE THE MERITS OF A PROTEST ARE NOT FOR CONSIDERATION, NO USEFUL PURPOSE WOULD BE SERVED BY HOLDING A CONFERENCE. LOGUS MANUFACTURING CORPORATION, B-216775, JAN. 8, 1985, 85-1 CPD PARA. 25. SIMILARLY, JED'S REQUEST FOR REIMBURSEMENT OF ATTORNEY'S FEES IS DENIED SINCE SUCH A CLAIM SUBMITTED IN CONNECTION WITH AN UNTIMELY PROTEST IS NOT FOR CONSIDERATION. BRINK CONSTRUCTION CO., B-219413; B-219413.2, JULY 11, 1985, 85-1 CPD PARA.

THE PROTEST IS DISMISSED.