B-224672, NOV 17, 1986, 86-2 CPD 571

B-224672: Nov 17, 1986

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AGENCY-LEVEL PROTEST THAT AGENCY'S COMPETITIVE SOLICITATION MISAPPROPRIATED PROTESTER'S IDEA IS UNTIMELY WHEN FILED AFTER PROPOSAL DUE DATE. SINCE PROTEST BASIS WAS APPARENT FROM THE FACE OF THE SOLICITATION. PROTESTER'S ORAL COMPLAINT TO AGENCY BEFORE PROPOSAL DUE DATE DID NOT CONSTITUTE TIMELY AGENCY PROTEST SINCE ORAL PROTESTS ARE NOT PROVIDED FOR UNDER THE FEDERAL ACQUISITION REGULATION. IS DISMISSED AS UNTIMELY. GAO WILL NOT REVIEW PROTEST THAT THE GOVERNMENT SHOULD PROCURE FEASIBILITY STUDY FROM A PARTICULAR FIRM ON A SOLE-SOURCE BASIS. PROTEST CONTENDING PROPOSAL WAS IMPROPERLY DETERMINED TO BE OUTSIDE OF THE COMPETITIVE RANGE IS DISMISSED AS UNTIMELY WHEN FIRST FILED WITH CONTRACTING AGENCY MORE THAN 10 WORKING DAYS AFTER PROTESTER WAS NOTIFIED OF THE REASONS FOR ITS EXCLUSION.

B-224672, NOV 17, 1986, 86-2 CPD 571

PROCUREMENT - BID PROTEST - AGENCY-LEVEL PROTESTS - ORAL PROTESTS PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - APPARENT SOLICITATION IMPROPRIETIES DIGEST: 1. AGENCY-LEVEL PROTEST THAT AGENCY'S COMPETITIVE SOLICITATION MISAPPROPRIATED PROTESTER'S IDEA IS UNTIMELY WHEN FILED AFTER PROPOSAL DUE DATE, SINCE PROTEST BASIS WAS APPARENT FROM THE FACE OF THE SOLICITATION. PROTESTER'S ORAL COMPLAINT TO AGENCY BEFORE PROPOSAL DUE DATE DID NOT CONSTITUTE TIMELY AGENCY PROTEST SINCE ORAL PROTESTS ARE NOT PROVIDED FOR UNDER THE FEDERAL ACQUISITION REGULATION. THEREFORE, PROTEST TO GAO, AFTER PROPOSAL DUE DATE, IS DISMISSED AS UNTIMELY. PROCUREMENT - BID PROTEST - GAO PROCEDURES - PURPOSES - COMPETITION ENHANCEMENT 2. GAO WILL NOT REVIEW PROTEST THAT THE GOVERNMENT SHOULD PROCURE FEASIBILITY STUDY FROM A PARTICULAR FIRM ON A SOLE-SOURCE BASIS. PROCUREMENT - BID PROTEST - AGENCY-LEVEL PROTESTS - ORAL PROTESTS PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - 10 DAY RULE 3. PROTEST CONTENDING PROPOSAL WAS IMPROPERLY DETERMINED TO BE OUTSIDE OF THE COMPETITIVE RANGE IS DISMISSED AS UNTIMELY WHEN FIRST FILED WITH CONTRACTING AGENCY MORE THAN 10 WORKING DAYS AFTER PROTESTER WAS NOTIFIED OF THE REASONS FOR ITS EXCLUSION. PROTESTER'S ORAL COMPLAINT TO CONTRACTING AGENCY ABOUT ITS EXCLUSION DID NOT CONSTITUTE TIMELY AGENCY PROTEST SINCE ORAL PROTESTS ARE NOT PROVIDED FOR UNDER THE FEDERAL ACQUISITION REGULATION. SINCE THE PROTEST WAS NOT INITIALLY TIMELY PROTESTED TO PROCURING AGENCY, LATER PROTEST TO THE GENERAL ACCOUNTING OFFICE IS UNTIMELY.

ARCTIC ENERGIES LTD.:

ARCTIC ENERGIES LTD. (AEL) PROTESTS THAT THE DEPARTMENT OF ENERGY (DOE) MISAPPROPRIATED AN IDEA FROM ITS UNSOLICITED PROPOSAL, AND IMPROPERLY EXCLUDED ITS PROPOSAL FROM THE COMPETITIVE RANGE, UNDER REQUEST FOR PROPOSALS (RFP) NO. DE-RP21-86MC-23142, ISSUED BY DOE FOR A SUBICE FEASIBILITY STUDY.

WE DISMISS THE PROTEST.

THE RFP WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY (CBD) ON FEBRUARY 6, 1986 AND ISSUED ON MARCH 26, 1986. NINE FIRMS, INCLUDING AEL, SUBMITTED PROPOSALS BEFORE THE MAY 5, 1986, CLOSING DATE. THREE FIRMS WERE DETERMINED TO BE IN THE COMPETITIVE RANGE. AEL WAS NOTIFIED BY LETTER DATED AUGUST 5, 1986, OF ITS EXCLUSION FROM THE COMPETITIVE RANGE. AEL ORALLY COMPLAINED OF ITS EXCLUSION TO DOE PROGRAM AND OFFICE OF INSPECTOR GENERAL PERSONNEL THROUGHOUT AUGUST. AEL PROTESTED TO DOE BY LETTER DATED AUGUST 25, 1986, RECEIVED AUGUST 28, 1986, BY THE DOE CONTRACTING OFFICER. A PROTEST FILED ON AEL'S BEHALF BY A MEMBER OF CONGRESS WAS RECEIVED AT OUR OFFICE ON SEPTEMBER 12, 1986.

AEL CONTENDS THAT IN DECEMBER 1983, IT SUBMITTED AN UNSOLICITED AND UNIQUE PROPOSAL TO DOE FOR A SUBICE FEASIBILITY STUDY. AEL ALLEGES THAT THE SPECIFICATIONS IN THE ABOVE RFP WERE BASED ON ITS UNSOLICITED PROPOSAL, AND THAT IT SHOULD HAVE BEEN AWARDED A CONTRACT BASED ON ITS UNSOLICITED PROPOSAL. AEL ASSERTS THAT IT TWICE NOTIFIED THE DOE CONTRACT SPECIALIST BY PHONE IN FEBRUARY 1986 THAT THE CBD ANNOUNCEMENT CONCERNED THE SAME TOPIC AS ITS UNSOLICITED PROPOSAL, BUT ACKNOWLEDGES THAT IT DID NOT FILE A FORMAL PROTEST AT THAT TIME.

WE DISMISS THIS ASPECT OF AEL'S PROTEST AS UNTIMELY. OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(1) (1986), REQUIRE THAT PROTESTS SUCH AS THIS, BASED ON ALLEGED IMPROPRIETIES APPARENT IN A SOLICITATION, BE FILED PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF INITIAL PROPOSALS. SEE FIREARMS TRAINING SYSTEMS, INC., 64 COMP.GEN. 919 (1985), 85-2 CPD PARA. 360. AEL'S WRITTEN PROTEST TO DOE IS UNTIMELY SINCE IT WAS NOT FILED UNTIL AFTER THE MAY 5, 1986, CLOSING DATE. WHERE, AS HERE, A PROTEST IS FIRST FILED WITH THE CONTRACTING AGENCY, A SUBSEQUENT PROTEST TO OUT OFFICE WILL BE CONSIDERED TIMELY ONLY IF THE INITIAL PROTEST WAS TIMELY. 4 C.F.R. SEC. 21.2(A)(3). SINCE AEL'S INITIAL PROTEST TO THE AGENCY WAS NOT TIMELY FILED, THIS PORTION OF ITS PROTEST SUBSEQUENTLY FILED WITH OUR OFFICE IS ALSO UNTIMELY AND WILL NOT BE CONSIDERED. ABC APPLIANCE REPAIR SERVICE, B-221850, FEB. 28, 1986, 86-1 CPD PARA. 215.

ALTHOUGH AEL EXPRESSED CONCERN ABOUT THIS PROCUREMENT TO THE CONTRACTING AGENCY PRIOR TO THE CLOSING DATE, THE FIRM'S ORAL COMPLAINT TO THE CONTRACTING AGENCY DID NOT CONSTITUTE A PROTEST SUCH THAT A SUBSEQUENT PROTEST TO OUR OFFICE WOULD BE TIMELY. ORAL PROTESTS ARE NOT PROVIDED FOR UNDER THE FEDERAL ACQUISITION REGULATION, 48 C.F.R. SEC. 33.101 (1985). YORK INTERNATIONAL CORP., B-223248, JUNE 17, 1986, 86-1 CPD PARA. 561.

FURTHERMORE, WE NOTE THAT AEL'S CONTENTION THAT IT SHOULD HAVE BEEN AWARDED A CONTRACT BASED ON ITS INITIAL, UNSOLICITED PROPOSAL IS ESSENTIALLY AN ARGUMENT THAT DOE SHOULD HAVE RESTRICTED COMPETITION AND AWARDED A SOLE-SOURCE CONTRACT. OUR OFFICE DOES NOT CONSIDER IT APPROPRIATE TO REVIEW A PROTEST THAT AN AGENCY SHOULD PROCURE FROM A PARTICULAR FIRM ON A SOLE-SOURCE BASIS. UNIVERSITY OF DAYTON RESEARCH INSTITUTE, B-220589, JAN. 30, 1986, 86-1 CPD PARA. 108.

AEL ALSO PROTESTS THAT DOE IMPROPERLY EXCLUDED IT FROM THE COMPETITIVE RANGE AS THE RESULT OF AN INADEQUATE EVALUATION OF ITS PROPOSAL. THIS ASPECT OF ITS PROTEST IS ALSO UNTIMELY. DOE NOTIFIED AEL BY LETTER DATED AUGUST 5, 1986, OF THE REASONS FOR ITS EXCLUSION FROM THE COMPETITIVE RANGE. THE RECORD SHOWS THAT AEL WAS AWARE OF THESE REASONS BY AUGUST 5, 1986, WHEN IT TELEPHONED DOE TO DISCUSS ITS EXCLUSION FOR THE COMPETITIVE RANGE. OUR BID PROTEST REGULATIONS REQUIRE THAT A PROTEST BE FILED WITH THE CONTRACTING AGENCY, OR THIS OFFICE, NOT LATER THAN 10 WORKING DAYS AFTER THE BASIS OF PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 21.2(A)(2) (1986). AEL'S PROTEST LETTER TO DOE, RECEIVED BY DOE ON AUGUST 28, 17 WORKING DAYS AFTER IT LEARNED OF THE REASONS FOR ITS EXCLUSION FROM THE COMPETITIVE RANGE, WAS UNTIMELY FILED. SINCE AEL'S INITIAL PROTEST TO THE CONTRACTING AGENCY WAS NOT TIMELY FILED, ITS PROTEST SUBSEQUENTLY FILED WITH OUR OFFICE IS ALSO UNTIMELY AND WILL NOT BE CONSIDERED. OXFORD MEDICAL INC., B-224256, OCT. 8, 1986, 86-2 CPD PARA. ***. WHILE AEL NOTES THAT BEFORE FILING ITS WRITTEN PROTEST, IT SPOKE WITH VARIOUS DOE PERSONNEL ABOUT ITS OBJECTION TO ITS EXCLUSION FROM THE COMPETITIVE RANGE, THIS DOES NOT CHANGE THE RESULT HERE. NOTED ABOVE, AN ORAL COMPLAINT TO THE CONTRACTING AGENCY DOES NOT CONSTITUTE A PROTEST.

THE PROTEST IS DISMISSED.