B-232020, Jul 26, 1988, 88-2 CPD 88

B-232020: Jul 26, 1988

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That award to low offeror is contrary to statutes and regulations granting an evaluation preference to small disadvantaged business concerns is dismissed where solicitation did not provide for such preference and neither the statutes nor regulations. In effect at the time the solicitation was issued. Protest that solicitation should have included an evaluation preference for small disadvantaged business concerns is untimely. Since it alleges a solicitation impropriety apparent prior to closing date for receipt of proposals but was not filed before that time. Even though its price was not low. It should receive the award because it is entitled to the benefit of a 10-percent evaluation preference for SDB's.

B-232020, Jul 26, 1988, 88-2 CPD 88

PROCUREMENT - Bid Protests - Allegation substantiation - Lacking - GAO review DIGEST: 1. Protest by other than low offeror, filed after closing date for receipt of proposals, that award to low offeror is contrary to statutes and regulations granting an evaluation preference to small disadvantaged business concerns is dismissed where solicitation did not provide for such preference and neither the statutes nor regulations, in effect at the time the solicitation was issued, required such a preference. PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties 2. Protest that solicitation should have included an evaluation preference for small disadvantaged business concerns is untimely, since it alleges a solicitation impropriety apparent prior to closing date for receipt of proposals but was not filed before that time.

Malcolm Thomas Industries, Inc.:

Malcolm Thomas Industries, Inc., a small disadvantaged business concern (SDB), protests the award of a contract General Products, Inc., the low offeror, under request for proposals No. DAAH01-88-R-0117 issued by the United States Army Missile Command, Redstone Arsenal, Alabama, for fabrication and assembly of rocket and missile weapon system components. Malcolm Thomas contends that, even though its price was not low, it should receive the award because it is entitled to the benefit of a 10-percent evaluation preference for SDB's. The preference is provided for in rules issued by the Department of Defense (DOD) to implement section 1207 of the National Defense Authorization Act for Fiscal Year 1987 Pub.L. No. 99-661, 100 Stat. 3973, and section 806 of Publ.L. No. 100-180 (the DOD Authorization Act for fiscal years 1988 and 1989). See 53 Fed.Reg. 20630 (1988) (to be codified at 48 C.F.R. Sec. 219.7000).

We dismiss the protest without obtaining a report from the Army, since it is clear from the material furnished by the protester that the protest is without legal merit. 4 C.F.R. Sec. 21.3(m) (1988).

The solicitation was issued on January 6, 1988, with a closing date for receipt of proposals of February 23. Award was made on June 24. Malcolm Thomas protested to the agency on July 8 complaining that the 10-percent evaluation preference should have been applied to its proposal's price. The agency denied the protest by letter dated July 11. Malcolm Thomas then protested to our Office on July 19.

At the time the solicitation was issued no statute or regulation provided for an evaluation preference for SDB's. The regulations mentioned above, which establish the evaluation preference, were effective only for solicitations issued on or after March 21, 1988. The Army's RFP did not provide for the preference nor was such a preference required by statute or regulation at the time the solicitation was issued, so that the protester has no legal basis for claiming its benefits.

To the extent that the protester contends that the solicitation should have provided for the evaluation preference, such a contention concerns a solicitation impropriety that was apparent prior to closing date for receipt of proposals. Our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(1), require that protests based upon such alleged improprieties be filed before that time to enable the contracting agency or our Office to decide an issue while it is most practicable to take effective action where the circumstances warrant. See Mycon Construction Co., Inc., B-231544, June 14, 1988, 88-1 CPD Para. ***. Since Malcolm Thomas' initial protest was filed long after the February 23 closing date for receipt of proposals, the issue is untimely.