B-220668.2, MAR 12, 1986, 86-1 CPD 243

B-220668.2, MAR 12, 1986, 86-1 CPD 243

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - RECONSIDERATION REQUESTS - TIMELINESS DIGEST: IN ITS INITIAL DECISION, GAO HELD THAT PROTESTER'S BID CORRECTLY WAS FOUND NONRESPONSIVE BECAUSE IT DID NOT COMPLY WITH THE IFB'S REQUIRED MINIMUM BID ACCEPTANCE PERIOD. PROTESTER'S ARGUMENT IN REQUESTING RECONSIDERATION, THAT THE SOLICITATION SHOULD NOT HAVE SPECIFIED A MINIMUM BID ACCEPTANCE PERIOD, NOT ONLY IS UNTIMELY SINCE IT WAS NOT FILED BEFORE BID OPENING, BUT IT DOES NOT SHOW THAT THE INITIAL DECISION WAS FACTUALLY OR LEGALLY WRONG, WHICH IS NECESSARY TO PREVAIL ON RECONSIDERATION.

CARDKEY SYSTEMS-- REQUEST FOR RECONSIDERATION:

CARDKEY SYSTEMS (CARDKEY) REQUESTS RECONSIDERATION OF OUR DECISION IN CARDKEY SYSTEMS, B-220668, JAN. 29, 1986, 86-1 CPD PARA. ---, IN WHICH WE DENIED THE FIRM'S PROTEST AGAINST THE AWARD OF A CONTRACT TO BASIX CONTROL SYSTEMS UNDER SOLICITATION NO. IFB-201-10-85 ISSUED BY THE VETERANS ADMINISTRATION (VA) FOR THE DESIGN AND INSTALLATION OF SECURITY EQUIPMENT AT THE VA SUPPLY DEPOT DATA PROCESSING CENTER IN HINES, ILLINOIS. WE DENY THE REQUEST FOR RECONSIDERATION.

IN OUR PRIOR DECISION, WE FOUND THAT THE VA WAS CORRECT IN DETERMINING THAT THE 30-DAY ACCEPTANCE PERIOD IN CARDKEY'S OFFER RENDERED THE BID NONRESPONSIVE. THE SOLICITATION, IN SECTION 52.214 16, REQUIRED THAT BIDS REMAIN AVAILABLE FOR ACCEPTANCE BY THE GOVERNMENT FOR 60 DAYS, BUT CARDKEY STATED, IN THAT SAME SECTION, THAT IT WAS OFFERING ONLY A 30-DAY ACCEPTANCE PERIOD. WE POINTED OUT THAT THE BID ACCEPTANCE PERIOD MANDATED IN A SOLICITATION IS A MATERIAL REQUIREMENT AND, THUS, HAS TO BE COMPLIED WITH AT BID OPENING IN ORDER FOR A BID TO BE RESPONSIVE.

WE ALSO NOTED IN OUR PRIOR DECISION THAT CARDKEY DID INDICATE IN SECTION 12 OF STANDARD FORM 33, THE FIRST PAGE OF ITS BID, THAT THE BID WOULD REMAIN OPEN FOR 60 DAYS. HOWEVER, WE FOUND THAT CARDKEY'S ENTRY IN SECTION 52.214-16 OF ITS BID WAS CONTROLLING. THE REASONS WERE THAT SECTION 52.214-16 EXPRESSLY PROVIDED THAT A BID ACCEPTANCE PERIOD OFFERED PURSUANT TO THAT PROVISION SUPERSEDED ANY LANGUAGE PERTAINING TO THE ACCEPTANCE PERIOD THAT MIGHT APPEAR ELSEWHERE IN THE SOLICITATION, AND THAT SECTION 12 OF STANDARD FORM 33 ITSELF CAUTIONED THAT THE SECTION DID NOT APPLY IF THE SOLICITATION INCLUDED THE PROVISION AT SECTION 52.214- 16. FURTHER, WE FOUND THAT EVEN IF THE DISPARATE BID ACCEPTANCE PERIODS IN CARDKEY'S OFFER WERE VIEWED AS RENDERING THE COMPANY'S BID AMBIGUOUS, THAT IS, SUBJECT TO MORE THAN ONE REASONABLE INTERPRETATION, CARDKEY'S OFFER STILL WAS NONRESPONSIVE. WE POINTED OUT THAT BECAUSE RESPONSIVENESS HAS TO BE EVIDENT FROM THE FACE OF A BID AT OPENING IN A SEALED BID PROCUREMENT, A CLARIFICATION SUBSEQUENT TO OPENING THAT WOULD BE NECESSARY TO ESTABLISH THE RESPONSIVENESS OF AN AMBIGUOUS BID IMPROPERLY GIVES THE BIDDER THE OPTION TO AFFECT THE BID'S ACCEPTABILITY AFTER OPENING.

CARDKEY NOW CONTENDS THAT ITS BID SHOULD NOT HAVE BEEN DETERMINED NONRESPONSIVE BASED ON THE 30-DAY ACCEPTANCE PERIOD IT STATED IN SECTION 52.214-16 BECAUSE THE VA IMPROPERLY INCLUDED THE SECTION IN THE SOLICITATION IN THE FIRST PLACE. CARDKEY ARGUES THAT IN INCORPORATING BY REFERENCE IN SECTION "H" OF THE SOLICITATION THE CLAUSE AT SECTION 52.236- 15 OF THE FEDERAL ACQUISITION REGULATION (FAR), "SCHEDULES FOR CONSTRUCTION CONTRACTS," THE AGENCY OBVIOUSLY INTENDED THE AWARD OF A CONSTRUCTION CONTRACT. THEREFORE, CARDKEY MAINTAINS, THE VA INCORRECTLY USED SECTION 52.214-16, SINCE THE SECTION IS NOT REQUIRED IN CONTRACTS FOR CONSTRUCTION. SEE FAR, 48 C.F.R. SEC. 14.201-6(J). INSTEAD, ACCORDING TO CARDKEY, THE VA, PURSUANT TO FAR, 48 C.F.R. SEC. 14.201-6(M), SHOULD HAVE INCLUDED IN THE SOLICITATION THE PROVISION AT FAR, 48 C.F.R. SEC. 52.214- 19, "CONTRACT AWARD-- FORMAL ADVERTISING-- CONSTRUCTION," WHICH DOES NOT STATE A MINIMUM BID ACCEPTANCE PERIOD, SO THAT AWARD TO CARDKEY WOULD HAVE BEEN PROPER.

CARDKEY'S ARGUMENT AS TO THE PROPRIETY OF THE VA'S INCLUSION OF SECTION 52.214-16 IN THE SOLICITATION IS UNTIMELY. UNDER BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(1) (1985), A PROTEST BASED ON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO THE BID OPENING DATE MUST BE FILED BEFORE THAT TIME. CONSEQUENTLY, CARDKEY'S ARGUMENT THAT SECTION 52.214-16 SHOULD NOT HAVE BEEN USED BECAUSE THE SOLICITATION WAS FOR CONSTRUCTION AND THAT THE VA INSTEAD SHOULD HAVE INCLUDED THE CLAUSE PROVIDED BY THE FAR FOR CONSTRUCTION CONTRACTS WILL NOT BE CONSIDERED ON THE MERITS.

IN ANY EVENT, WE FAIL TO SEE THE RELEVANCE OF CARDKEY'S RECONSIDERATION ARGUMENT TO THE FIRM'S FAILURE TO SPECIFY THE MINIMUM BID ACCEPTANCE PERIOD SET FORTH IN SECTION 52.214-16 OF THE SOLICITATION. CARDKEY COMPETED IN THE PROCUREMENT WITH KNOWLEDGE OF PRECISELY WHAT THE VA REQUIRED IN TERMS OF THE TIME PERIOD IN WHICH A BID HAD TO STAY OPEN. DO NOT SEE ANY DIRECT RELATIONSHIP BETWEEN THE CONSTRUCTION/NONCONSTRUCTION MATTER AND THE FIRM'S FAILURE TO COMPLY WITH THE INVITATION'S EXPRESS BID ACCEPTANCE PERIOD REQUIREMENT.

FOR A FIRM TO PREVAIL ON RECONSIDERATION, IT MUST ESTABLISH THAT THE INITIAL DECISION WAS FACTUALLY OR LEGALLY WRONG. 4 C.F.R. SEC. 21.12(A). SINCE CARDKEY HAS NOT DONE SO, ITS REQUEST FOR RECONSIDERATION OF OUR JANUARY 29 DECISION IS DENIED.