B-220823, OCT 23, 1985, 85-2 CPD 453

B-220823: Oct 23, 1985

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PROTEST ALLEGING THAT RFP SHOULD NOT HAVE CONTAINED REQUIREMENT FOR BID GUARANTEE AND PERFORMANCE BOND IS DISMISSED AS UNTIMELY SINCE PROTEST WAS NOT FILED UNTIL AFTER THE CLOSING DATE FOR RECEIPT OF PROPOSALS. A CONTRACTING OFFICER IS NOT REQUIRED TO CONDUCT DISCUSSIONS IN NEGOTIATED PROCUREMENT AND MAY. TRAVENOL CONTENDS THAT THESE REQUIREMENTS SHOULD NOT HAVE BEEN INCLUDED IN A SOLICITATION FOR MEDICAL SUPPLIES NOR APPLIED TO A VENDOR. TRAVENOL ARGUES THAT THE VA IS REQUIRED TO ADVISE OFFERORS OF INADVERTENT OMISSIONS IN A PROPOSAL AND COMPLAINS THAT NO DISCUSSIONS WITH ANY VENDOR WERE INITIATED. OUR BID PROTEST REGULATIONS REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN AN RFP WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS BE FILED BY CLOSING. 4 C.F.R.

B-220823, OCT 23, 1985, 85-2 CPD 453

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS DIGEST: 1. PROTEST ALLEGING THAT RFP SHOULD NOT HAVE CONTAINED REQUIREMENT FOR BID GUARANTEE AND PERFORMANCE BOND IS DISMISSED AS UNTIMELY SINCE PROTEST WAS NOT FILED UNTIL AFTER THE CLOSING DATE FOR RECEIPT OF PROPOSALS. CONTRACTS - NEGOTIATION - OFFERS OR PROPOSALS - DISCUSSION WITH ALL OFFERORS REQUIREMENT - FAILURE TO DISCUSS - SITUATIONS NOT REQUIRING DISCUSSION 2. A CONTRACTING OFFICER IS NOT REQUIRED TO CONDUCT DISCUSSIONS IN NEGOTIATED PROCUREMENT AND MAY, IN APPROPRIATE CIRCUMSTANCES, DECIDE TO AWARD ON THE BASIS OF INITIAL PROPOSALS.

TRAVENOL LABORATORIES, INC.:

TRAVENOL LABORATORIES, INC. PROTESTS THE BID GUARANTEE AND PERFORMANCE BOND REQUIREMENTS CONTAINED IN REQUEST FOR PROPOSALS (RFP) NO. 596-39-85 ISSUED BY THE VETERANS ADMINISTRATION (VA) FOR MEDICAL SUPPLIES AND EQUIPMENT. TRAVENOL CONTENDS THAT THESE REQUIREMENTS SHOULD NOT HAVE BEEN INCLUDED IN A SOLICITATION FOR MEDICAL SUPPLIES NOR APPLIED TO A VENDOR, SUCH AS TRAVENOL, WHOSE OTHER CONTRACTS WITH THE GOVERNMENT DEMONSTRATE ITS RELIABILITY. ALSO, TRAVENOL ARGUES THAT THE VA IS REQUIRED TO ADVISE OFFERORS OF INADVERTENT OMISSIONS IN A PROPOSAL AND COMPLAINS THAT NO DISCUSSIONS WITH ANY VENDOR WERE INITIATED.

WE DISMISS THE PROTEST.

OUR BID PROTEST REGULATIONS REQUIRE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN AN RFP WHICH ARE APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS BE FILED BY CLOSING. 4 C.F.R. SEC. 21.2(A)(1) (1985). IN THIS CASE, THE CLOSING DATE FOR RECEIPT OF PROPOSALS WAS SEPTEMBER 5, 1985, AND TRAVENOL'S PROTEST WAS FILED ON OCTOBER 15. IF TRAVENOL THOUGHT IT INAPPROPRIATE FOR THE VA TO REQUIRE A BID GUARANTEE AND PERFORMANCE BOND, IT WAS INCUMBENT UPON IT TO PROTEST PRIOR TO THE SEPTEMBER 5 CLOSING DATE. SINCE TRAVENOL'S PROTEST WAS NOT FILED UNTIL AFTER THAT DATE, ITS COMPLAINT ABOUT THE BONDS IS UNTIMELY AND WILL NOT BE CONSIDERED. ESTERLINE ANGUS INSTRUMENT CORP., B-217479, MAR. 7, 1985, 85-1 CPD PARA. 284.

AS TO TRAVENOL'S SECOND ASSERTION, WE POINT OUT THAT THE USE OF NEGOTIATION DOES NOT REQUIRE DISCUSSIONS IN EVERY INSTANCE. APPROPRIATE CIRCUMSTANCES, A CONTRACTING OFFICER MAY DECIDE TO AWARD ON THE BASIS OF INITIAL PROPOSALS; TRAVENOL HAS NOT ALLEGED THAT SUCH CIRCUMSTANCES WERE LACKING. SEE COMMUNICATIONS TECHNOLOGY APPLICATIONS, INC., B-218935, MAY 30, 1985, 85-1 CPD PARA. 619.

THE PROTEST IS DISMISSED.