B-221961, FEB 19, 1986, 86-1 CPD 175

B-221961: Feb 19, 1986

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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS DIGEST: A PROTEST SUBMITTED AFTER BID OPENING THAT CHALLENGES THE PROPRIETY OF AN IFB'S BID BOND REQUIREMENT IS DISMISSED AS UNTIMELY SINCE THE ALLEGED IMPROPRIETY WAS APPARENT BEFORE BID OPENING AND SHOULD HAVE BEEN PROTESTED BEFORE THE BID OPENING. THE REJECTION WAS BASED ON C&M'S FAILURE TO SUBMIT WITH ITS BID A BID BOND AS REQUIRED BY THE IFB. C&M CONTENDS THAT THIS PROCUREMENT FOR WORD-PROCESSING SERVICES WAS SUBJECT TO THE OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-76 AND THAT THIS CIRCULAR DOES NOT REQUIRE A BID BOND UNDER THE CIRCUMSTANCES OF THIS CASE.

B-221961, FEB 19, 1986, 86-1 CPD 175

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING/CLOSING DATE FOR PROPOSALS DIGEST: A PROTEST SUBMITTED AFTER BID OPENING THAT CHALLENGES THE PROPRIETY OF AN IFB'S BID BOND REQUIREMENT IS DISMISSED AS UNTIMELY SINCE THE ALLEGED IMPROPRIETY WAS APPARENT BEFORE BID OPENING AND SHOULD HAVE BEEN PROTESTED BEFORE THE BID OPENING.

C&M SYSTEMS CORPORATION:

C&M SYSTEMS CORPORATION (C&M) PROTESTS THE REJECTION OF ITS BID AS NONRESPONSIVE BY THE DEPARTMENT OF ARMY UNDER INVITATION FOR BIDS (IFB) NO. DACW62-85-B-0080. THE REJECTION WAS BASED ON C&M'S FAILURE TO SUBMIT WITH ITS BID A BID BOND AS REQUIRED BY THE IFB. C&M CONTENDS THAT THIS PROCUREMENT FOR WORD-PROCESSING SERVICES WAS SUBJECT TO THE OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-76 AND THAT THIS CIRCULAR DOES NOT REQUIRE A BID BOND UNDER THE CIRCUMSTANCES OF THIS CASE. WE DISMISS THE PROTEST.

POTENTIAL BIDDERS WERE INFORMED BY THE IFB THAT THE PROCUREMENT WAS PART OF A GOVERNMENT COST COMPARISON TO DETERMINE WHETHER A CONTRACTOR OR THE GOVERNMENT COULD PERFORM THE REQUIRED WORK MORE ECONOMICALLY. THE IFB CLEARLY REQUIRED THAT BIDS BE ACCOMPANIED BY BID BONDS WITH SURETIES ACCEPTABLE TO THE GOVERNMENT. C&M ARGUES THAT THE BID BOND IS NOT REQUIRED UNDER A-76 AND IN THIS CASE REQUIRES THE BIDDER TO INCUR MORE EXPENSE THAN THE GOVERNMENT. THUS, THE COST COMPARISON IS PRESUMABLY RENDERED UNFAIR.

C&M'S PROTEST INVOLVES A CHALLENGE TO THE PROPRIETY OF THE BID-BOND REQUIREMENT SET FORTH IN THE IFB AND IT IS UNTIMELY UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(1) (1985). THESE REGULATIONS REQUIRE THAT A PROTEST BASED ON ALLEGED IMPROPRIETIES THAT ARE APPARENT IN AN IFB PRIOR TO BID OPENING SHALL BE FILED PRIOR TO BID OPENING. IN THIS CASE, THE BID OPENING TOOK PLACE ON JANUARY 24, 1986 AND NEITHER C&M'S PROTEST TO THE ARMY NOR ITS PROTEST TO OUR OFFICE WAS MADE UNTIL AFTER THAT DATE. THUS THE PROTEST WILL NOT BE CONSIDERED ON ITS MERITS. SEE GUNNISON COUNTY COMMUNICATION INC., B-219748, SEPT. 19, 1985, 85-2 CPD PARA. 310.

THE PROTEST IS DISMISSED.