B-225216, DEC 2, 1986, 86-2 CPD 630

B-225216: Dec 2, 1986

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PROTEST BASED ON AN ALLEGED DEFICIENCY THAT IS APPARENT ON THE FACE OF AN INVITATION FOR BIDS. HERE ALLEGEDLY IMPROPER DIFFERENCES IN DELIVERY SCHEDULES BASED ON WHETHER FIRST ARTICLE TESTING IS REQUIRED. PURPORTED POST-AWARD MODIFICATION INCREASING PRICES IN EXCHANGE FOR ACCELERATED DELIVERY IS A MATTER OF CONTRACT ADMINISTRATION. THE FIRM ALLEGES THAT DIFFERENCES IN DELIVERY SCHEDULES BASED ON WHETHER FIRST ARTICLE TESTING IS REQUIRED RESULTED IN AN UNFAIR AND NONCOMPETITIVE ACQUISITION. HAVE NEGOTIATED OR INTEND TO NEGOTIATE A CONTRACT MODIFICATION UNDER WHICH SIGNIFICANT PRICE INCREASES WILL BE EXCHANGED FOR AN ACCELERATED DELIVERY SCHEDULE. WHILE BIDDERS SUBJECT TO FIRST ARTICLE TESTING WOULD HAVE TO DELIVER ONLY 90.

B-225216, DEC 2, 1986, 86-2 CPD 630

PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - APPARENT SOLICITATION IMPROPRIETIES DIGEST: 1. PROTEST BASED ON AN ALLEGED DEFICIENCY THAT IS APPARENT ON THE FACE OF AN INVITATION FOR BIDS-- HERE ALLEGEDLY IMPROPER DIFFERENCES IN DELIVERY SCHEDULES BASED ON WHETHER FIRST ARTICLE TESTING IS REQUIRED-- MUST BE FILED BEFORE BID OPENING. PROCUREMENT - CONTRACT MANAGEMENT - CONTRACT ADMINISTRATION - GAO REVIEW 2. WHILE AN AGENCY MAY NOT PROPERLY AWARD A CONTRACT WITH THE INTENT TO MODIFY IT, WHEN A PROTESTER NEITHER ALLEGES NOR MAKES OUT A PRIMA FACIE CASE THAT THIS OCCURRED, PURPORTED POST-AWARD MODIFICATION INCREASING PRICES IN EXCHANGE FOR ACCELERATED DELIVERY IS A MATTER OF CONTRACT ADMINISTRATION, NOT WITHIN THE BID PROTEST JURISDICTION OF THE GENERAL ACCOUNTING OFFICE.

SOUTHERN PLASTICS ENGINEERING CORPORATION:

SOUTHERN PLASTICS ENGINEERING CORPORATION PROTESTS THE TERMS OF INVITATION FOR BIDS NO. DAAK01-86-B-C057, ISSUED BY THE U.S. ARMY TROOP SUPPORT COMMAND, ST. LOUIS, MISSOURI. THE FIRM ALLEGES THAT DIFFERENCES IN DELIVERY SCHEDULES BASED ON WHETHER FIRST ARTICLE TESTING IS REQUIRED RESULTED IN AN UNFAIR AND NONCOMPETITIVE ACQUISITION. THE PROTESTER ALSO ALLEGES THAT THE PROCURING ACTIVITY AND THE AWARDEE, BHAR, INC., HAVE NEGOTIATED OR INTEND TO NEGOTIATE A CONTRACT MODIFICATION UNDER WHICH SIGNIFICANT PRICE INCREASES WILL BE EXCHANGED FOR AN ACCELERATED DELIVERY SCHEDULE.

WE DISMISS THE PROTEST.

ACCORDING TO SOUTHERN, THE ARMY ISSUED THE SOLICITATION FOR CERTAIN CAMOUFLAGE EQUIPMENT KNOWN AS BATTEN SPREADERS ON MARCH 28, 1986, AND OPENED BIDS ON APRIL 29. THE PROTESTER STATES THAT THE INVITATION PROVIDED THAT BIDDERS WHO COULD QUALIFY FOR A WAIVER OF FIRST ARTICLE TESTING WOULD BE REQUIRED TO DELIVER 175,000 UNITS A MONTH AND/OR TO PERFORM FULLY IN 24.8 MONTHS, WHILE BIDDERS SUBJECT TO FIRST ARTICLE TESTING WOULD HAVE TO DELIVER ONLY 90,000 UNITS A MONTH OVER A PERIOD OF 50.47 MONTHS. SOUTHERN STATES THAT IT BID WITHOUT FIRST ARTICLE BECAUSE IT HAD PREVIOUSLY HAD SEVERAL SMALL CONTRACTS FOR BATTEN SPREADERS. ITS BID WOULD HAVE BEEN SUBSTANTIALLY LESS, THE FIRM STATES, IF IT HAD BEEN ALLOWED THE FULL 50 MONTHS TO PERFORM.

IT IS NOT CLEAR WHETHER THE ARMY WOULD HAVE GRANTED SOUTHERN A WAIVER OF FIRST ARTICLE TESTING. WE NEED NOT CONSIDER THIS, HOWEVER, SINCE THE FIRM'S PROTEST CONCERNING DIFFERENCES IN SCHEDULES IS UNTIMELY. OUR BID PROTEST REGULATIONS REQUIRE THAT WHERE, AS HERE, AN ALLEGED DEFICIENCY IS APPARENT ON THE FACE OF AN INVITATION FOR BIDS, ANY PROTEST REGARDING THE DEFICIENCY MUST BE FILED BEFORE BID OPENING. 4 C.F.R. SEC. 21.2(A)(1) (1986). IN THIS CASE, AS NOTED ABOVE, THE ARMY OPENED BIDS ON APRIL 29; HOWEVER, WE DID NOT RECEIVE SOUTHERN'S PROTEST UNTIL NOVEMBER 17.

WE ALSO WILL NOT CONSIDER THE PROPRIETY OF THE PURPORTED MODIFICATION. AN AGENCY MAY NOT PROPERLY AWARD A CONTRACT WITH THE INTENT TO MODIFY IT. AMERICAN TELEVISION SYSTEMS, B-220087.3, JUNE 19, 1986, 86-1 CPD PARA. 562; U.S. MATERIALS CO., B-216712, APR. 26, 1985, 85-1 CPD PARA. 471. SOUTHERN, HOWEVER, HAS NEITHER ALLEGED NOR MADE OUT A PRIME FACIE CASE THAT THIS OCCURRED AND THE PROTESTED MODIFICATION IS, THEREFORE, A MATTER OF CONTRACT ADMINISTRATION. SEE DATASTRIP CORP., B-217581, JUNE 25, 1985, 85-1 CPD PARA. 105. AS SUCH, IT IS NOT WITHIN OUR BID PROTEST JURISDICTION, WHICH IS GENERALLY LIMITED TO QUESTIONS CONCERNING SOLICITATIONS ISSUED BY FEDERAL AGENCIES OR THE AWARD OR PROPOSED AWARD OF CONTRACTS BY SUCH AGENCIES. 31 U.S.C. SEC. 3552 (SUPP. III 1985); 4 C.F.R. SEC. 21.2(A).

PROTEST DISMISSED.