B-224013, NOV 17, 1986, 86-2 CPD 566

B-224013: Nov 17, 1986

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IS UNTIMELY WHEN FILED WITH AGENCY AFTER THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SUBSEQUENT PROTEST TO GAO IS UNTIMELY WHERE INITIAL PROTEST IS UNTIMELY FILED WITH CONTRACTING AGENCY. THE RFP WAS ISSUED ON JULY 10. SECTION M2.1 STATES THAT: "THE EMPLOYMENT OF THE VESSEL IS NOT CONSIDERED TO BE OCEANOGRAPHIC RESEARCH.". AN OFFEROR MUST INDICATE WHETHER ITS VESSEL IS SUBJECT TO COAST GUARD CERTIFICATION AND INSPECTION PROCEDURES AS A PASSENGER VESSEL AND. THE SECTION GOES ON TO STATE THAT IF THE VESSEL OFFERED IS SUBJECT TO COAST GUARD PROCEDURES AND DOES NOT HAVE CERTIFICATION. IT WILL BE CONSIDERED ONLY IF NO OFFERS ARE RECEIVED FROM CERTIFIED OR EXEMPT VESSELS. THE CLAUSE STATES THAT CERTIFIED AND EXEMPT VESSELS WILL BE CONSIDERED EQUALLY.

B-224013, NOV 17, 1986, 86-2 CPD 566

PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - APPARENT SOLICITATION IMPROPRIETIES DIGEST: PROTEST AGAINST SOLICITATION IMPROPRIETY-- ALLEGEDLY AMBIGUOUS AND OVERLY RESTRICTIVE SPECIFICATION-- IS UNTIMELY WHEN FILED WITH AGENCY AFTER THE CLOSING DATE FOR RECEIPT OF PROPOSALS. SUBSEQUENT PROTEST TO GAO IS UNTIMELY WHERE INITIAL PROTEST IS UNTIMELY FILED WITH CONTRACTING AGENCY.

CAPTAIN HOOK TRADING CO.:

CAPTAIN HOOK TRADING CO. (HOOK) PROTESTS THE AWARD OF A CONTRACT TO ANY OTHER OFFEROR UNDER REQUEST FOR PROPOSALS (RFP) NO. N00033-86-R 1315 ISSUED BY THE MILITARY SEALIFT COMMAND (MSC) FOR A SUPPORT VESSEL FOR THE ADVANCE UNDERSEA SEARCH SYSTEM (AUSS). HOOK, THE INCUMBENT, ASSERTS THAT THE RFP AMBIGUOUSLY AND RESTRICTIVELY DEFINES THE WORK TO BE PERFORMED AS NOT OCEANOGRAPHIC RESEARCH, AND REQUIRES COAST GUARD CERTIFICATION FOR HOOK'S VESSEL WHICH HAD BEEN EXEMPTED UNDER THE PRIOR MSC CONTRACT FOR THE WORK IN QUESTION.

WE DISMISS THE PROTEST AS UNTIMELY.

THE RFP WAS ISSUED ON JULY 10, 1986, CALLING FOR SUBMISSION OF INITIAL PROPOSALS BY AUGUST 11. SECTION M2.1 STATES THAT: "THE EMPLOYMENT OF THE VESSEL IS NOT CONSIDERED TO BE OCEANOGRAPHIC RESEARCH." THE SECTION THEN STATES THAT, BECAUSE OF THIS DETERMINATION, AN OFFEROR MUST INDICATE WHETHER ITS VESSEL IS SUBJECT TO COAST GUARD CERTIFICATION AND INSPECTION PROCEDURES AS A PASSENGER VESSEL AND, IF EXEMPT, THE REASON. THE SECTION GOES ON TO STATE THAT IF THE VESSEL OFFERED IS SUBJECT TO COAST GUARD PROCEDURES AND DOES NOT HAVE CERTIFICATION, IT WILL BE CONSIDERED ONLY IF NO OFFERS ARE RECEIVED FROM CERTIFIED OR EXEMPT VESSELS.

FINALLY, THE CLAUSE STATES THAT CERTIFIED AND EXEMPT VESSELS WILL BE CONSIDERED EQUALLY.

THE PREVIOUS CONTRACT, WHICH WAS BEING PERFORMED BY HOOK, CHARACTERIZED THE VESSEL'S ACTIVITY AS OCEANOGRAPHIC RESEARCH, WHICH QUALIFIED FOR EXEMPTION FROM COAST GUARD PASSENGER VESSEL CERTIFICATION. MSC ADDED THE ABOVE CLAUSE INDICATING THAT THE WORK IN QUESTION WAS NOT OCEANOGRAPHIC RESEARCH BECAUSE IT DETERMINED THAT CERTAIN SALVAGE-RELATED ASPECTS OF THE AUSS RENDERED THE RESEARCH DESCRIPTION INACCURATE AND, THEREFORE, EXEMPTION FROM COAST GUARD PASSENGER VESSEL CERTIFICATION ON THAT BASIS WAS INAPPROPRIATE. THIS CHANGE IN THE DESCRIPTION OF THE WORK TO BE PERFORMED UNDER THE RFP PROVIDES THE BASIS FOR HOOK'S PROTEST, WHICH ALLEGES THAT THE WORK QUALIFIES A VESSEL FOR AN OCEANOGRAPHIC RESEARCH EXEMPTION AND, THEREFORE, HOOK'S VESSEL SHOULD BE ELIGIBLE FOR AWARD ON THAT BASIS.

NINETEEN OFFERS WERE RECEIVED, SIX OF WHICH WERE FOUND TO BE IN THE COMPETITIVE RANGE. MSC DID NOT REQUIRE CERTIFICATION AS A PREREQUISITE FOR INCLUSION IN THE COMPETITIVE RANGE BECAUSE CERTIFICATION WAS NOT REQUIRED UNTIL PERFORMANCE. ONE OF THE OFFERORS IN THE COMPETITIVE RANGE OFFERED A CERTIFIED VESSEL AND FIVE, INCLUDING HOOK, OFFERED VESSELS WHICH WERE NOT CERTIFIED AT THAT TIME. HOWEVER, BECAUSE OF THE CHANGED RFP DEFINITION OF THE WORK TO BE PERFORMED UNDER THE CONTRACT, IT WAS CLEAR TO MSC THAT EXEMPTION AS A PERFORMING RESEARCH VESSEL, CLAIMED BY HOOK IN ITS PROPOSAL, WAS NOT AVAILABLE TO THE OFFERORS. ACCORDINGLY, MSC STATED IN ITS AUGUST 13 REQUEST FOR BEST AND FINAL OFFERS THAT AWARD WOULD BE MADE ONLY TO AN OFFEROR THAT COULD DELIVER A CERTIFIED VESSEL BY THE PERFORMANCE START DATE IN THE RFP, AND FURTHER ADVISED THAT OFFERORS WHO COULD NOT SATISFY THIS CERTIFICATION REQUIREMENT SHOULD NOT SUBMIT BEST AND FINAL OFFERS.

BEST AND FINAL OFFERS WERE DUE BY 12 P.M. "LOCAL" TIME ON AUGUST 14. SINCE THE ISSUING ENTITY WAS THE WASHINGTON, D.C., MSC OFFICE, TO WHICH THE RFP REQUIRED THAT PROPOSALS BE DELIVERED, "LOCAL" TIME CLEARLY REFERS TO TIME IN WASHINGTON, D.C. SEE CECILE INDUSTRIES, INC., B-206796, JULY 7, 1982, 82-2 CPD PARA. 29. AS A RESULT OF DIFFICULTIES IN TRANSMISSION, HOOK'S BEST AND FINAL OFFER, WHICH AFFIRMED ITS INITIAL OFFER, WAS NOT RECEIVED BY MSC UNTIL AFTER 12 P.M. AS A RESULT, MSC DETERMINED THAT HOOK'S PROPOSAL WAS LATE, NOTWITHSTANDING THE FACT THAT RECEIPT OCCURRED PRIOR TO 12 P.M. SEATTLE, WASHINGTON, TIME-- FROM WHERE HOOK TRANSMITTED ITS OFFER.

IN ANY EVENT, HOOK DID NOT PROPOSE A CERTIFIED VESSEL, BUT INSTEAD IT OFFERED A VESSEL WHICH HOOK CLAIMED WAS EXEMPT ON THE BASIS OF THE PRIOR CONTRACT WORK DESIGNATION, WHICH HAD BEEN EXPLICITLY REVERSED IN THE CURRENT RFP. AS A RESULT, MSC DETERMINED THAT HOOK'S PROPOSAL WAS TECHNICALLY UNACCEPTABLE. HOOK CONCEDES THAT IT CANNOT OBTAIN COAST GUARD CERTIFICATION, OR EXEMPTION ON ANOTHER BASIS IN TIME TO MEET THE PERFORMANCE DATE UNDER THE CURRENT RFP. HOOK WAS NOTIFIED THAT ITS BEST AND FINAL OFFER WAS UNACCEPTABLE ON AUGUST 14 AND FILED A PROTEST WITH MSC ON AUGUST 15, WHICH MSC DENIED ON THE SAME DAY. HOOK THEN PROTESTED TO OUR OFFICE ON AUGUST 26.

HOOK CONTENDS THAT WHILE ITS PROTEST CONCERNS AN ALLEGED SOLICITATION AMBIGUITY, THE AMBIGUITY WAS NOT APPARENT FROM THE RFP. HOOK CLAIMS THAT IT WAS ENTITLED TO RELY ON THE LAST SENTENCE OF THE SECTION IN QUESTION WHICH INDICATES THAT CERTIFIED AND EXEMPT VESSELS WOULD BE CONSIDERED EQUALLY. HOWEVER, HOOK CONCEDES THAT ON AUGUST 12, PRIOR TO THE DEADLINE FOR BEST AND FINAL OFFERS, IT WAS SPECIFICALLY MADE AWARE OF MSC'S INTERPRETATION OF THE LANGUAGE IN QUESTION. IN ADDITION, THE AUGUST 13 REQUEST FOR BEST AND FINAL OFFERS MADE IT CLEAR THAT THE RFP REQUIRED CERTIFIED VESSELS, BECAUSE AN OFFER HAD BEEN RECEIVED FOR A CERTIFIED VESSEL. NEVERTHELESS, HOOK DID NOT FILE ITS PROTEST WITH MSC UNTIL THE DAY AFTER THE CLOSING DATE FOR BEST AND FINAL OFFERS, AFTER HOOK HAD BEEN ADVISED THAT ITS OFFER WAS TECHNICALLY UNACCEPTABLE.

ALLEGED AMBIGUITIES IN THE LANGUAGE OF A SOLICITATION ARE CONSIDERED TO BE SOLICITATION IMPROPRIETIES WHICH MUST BE PROTESTED PRIOR TO THE NEXT CLOSING DATE. 4 C.F.R. SEC. 21.2(A)(1) (1986); WINDOW SYSTEMS ENGINEERING, B-222599, AUG. 27, 1986, 86-2 CPD PARA. 230. SINCE HOOK'S INITIAL PROTEST TO THE AGENCY WAS UNTIMELY UNDER OUR BID PROTEST REGULATIONS, HOOK'S SUBSEQUENT PROTEST TO OUR OFFICE IS ALSO UNTIMELY. C.F.R. SEC. 21.2(A)(3).

WE HAVE RECOGNIZED AN EXCEPTION TO THIS RULE WHERE THE PROTESTER REASONABLY WAS UNAWARE, PRIOR TO THE CLOSING DATE, THAT ITS INTERPRETATION WAS NOT THE ONLY ONE POSSIBLE. THIS IS BECAUSE, ABSENT AWARENESS OF A SECOND INTERPRETATION, THE PROTESTER CANNOT BE AWARE OF AN AMBIGUITY. SEE CONRAC CORP., B-205562, APR. 5, 1982, 82-1 CPD PARA. 309. HOWEVER, A SOLICITATION REQUIREMENT IS NOT AMBIGUOUS UNLESS IT IS SUSCEPTIBLE TO TWO OR MORE REASONABLE INTERPRETATIONS. ENERGY MAINTENANCE CORP., B-223328, AUG. 27, 1986, 86-2 CPD PARA. 234. TO BE REASONABLE, AN INTERPRETATION MUST BE CONSISTENT WITH THE SOLICITATION READ AS A WHOLE. ENVIRONMENTAL TECTONICS CORP., B-220568, SEPT. 5, 1986, 86-2 CPD PARA. ***; ENVIRONMENTAL ASEPTIC SERVICES ADMINISTRATION, B-221316, MAR. 18, 1986, 86-1 CPD PARA. 268.

HERE, HOOK'S INTERPRETATION IS NOT REASONABLE, AND CANNOT BE CONSIDERED THE ONLY POSSIBLE INTERPRETATION, BECAUSE IT GIVES EFFECT ONLY TO A STRAINED INFERENCE FROM THE LAST SENTENCE OF THE SECTION. READ AS A WHOLE, THE SECTION PROVIDES THAT A VESSEL MUST EITHER HAVE COAST GUARD CERTIFICATION AS A PASSENGER VESSEL, OR QUALIFY FOR EXEMPTION FROM CERTIFICATION ON SOME BASIS OTHER THAN THE WORK TO BE PERFORMED UNDER THE RFP-- WHICH THE SECTION SPECIFICALLY INDICATES DOES NOT QUALIFY FOR THE EXEMPTION. VESSELS WHICH DO NOT MEET ONE OF THESE REQUIREMENTS WILL NOT BE CONSIDERED TECHNICALLY ACCEPTABLE, UNLESS NO OFFERS ARE RECEIVED FOR VESSELS WHICH DO MEET THE REQUIREMENT. THE INDICATION THAT CERTIFIED AND EXEMPT VESSELS WILL BE CONSIDERED EQUALLY DOES NOT RESCIND THE WORK DESCRIPTION, RATHER IT CALLS FOR EQUAL CONSIDERATION OF VESSELS WHICH QUALIFY FOR EXEMPTION ON SOME OTHER BASIS. TO INTERPRET THE SECTION OTHERWISE REQUIRES THE ASSUMPTION THAT THE LAST SENTENCE WAS INTENDED TO CONTRADICT AND SUPERSEDE ALL THE PRECEDING LANGUAGE, WHEN NO SUCH INCONSISTENCY OTHERWISE IS SUGGESTED. OUR OFFICE WILL REJECT AN ALLEGATION CONCERNING AMBIGUOUS PROVISIONS WHERE THE ALLEGATION IS BASED ON AN UNREASONABLE INTERPRETATION OF THE SOLICITATION, AND THE REQUIREMENTS ARE STATED CLEARLY. AMERICAN INDUSTRIES, B-223530, OCT. 15, 1986, 86-2 CPD PARA. ***; H.L. CARPENTER CO., B-220032, NOV. 21, 1985, 85-2 CPD PARA. 586. HERE, MSC'S INTERPRETATION OF THE SECTION AS A WHOLE IS THE ONLY REASONABLE ONE.

HOOK ARGUES THAT EVEN IF ITS PROTEST IS UNTIMELY, IT SHOULD BE CONSIDERED UNDER THE SIGNIFICANT ISSUE EXCEPTION IN OUR TIMELINESS RULES. WE DO NOT AGREE. IN ORDER TO PREVENT THE TIMELINESS REQUIREMENTS FROM BECOMING MEANINGLESS, THE SIGNIFICANT ISSUE EXCEPTION IS STRICTLY CONSTRUED AND SELDOM USED. THE EXCEPTION IS LIMITED TO CONSIDERING UNTIMELY PROTESTS THAT RAISE ISSUES OF WIDESPREAD INTEREST TO THE PROCUREMENT COMMUNITY AND WHICH HAVE NOT BEEN CONSIDERED ON THE MERITS IN A PREVIOUS DECISION. EMERSON ELECTRIC CO.-- RECONSIDERATION, B-220517.2, NOV. 26, 1985, 85-2 CPD PARA. 607. HERE, BOTH THE ISSUE OF ALLEGEDLY AMBIGUOUS SPECIFICATIONS, AND OF AN OVERLY RESTRICTIVE CERTIFICATION REQUIREMENT HAVE BEEN CONSIDERED BY OUR OFFICE. SEE AMERICAN INDUSTRIES, B-223530, SUPRA; SEA SERVICES TECHNOLOGY, B-211261, APR. 15, 1983, 83-1 CPD PARA. 419.

THE PROTEST IS DISMISSED.