B-232970.2, Feb 7, 1989

B-232970.2: Feb 7, 1989

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PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: Dismissal of protest as untimely is affirmed where allegation that contracting agency improperly waived balance of payments provision in a request for proposals RFP was filed after the closing date for receipt of proposals. The BOP preference provision is required to be included in solicitations for products for use outside the United States unless one of the applicable exceptions applies. 1 We dismissed GTE's protest as untimely because the protest was based on an alleged impropriety in the solicitation but was not filed prior to the closing date for the receipt of proposals. 4 C.F.R.

B-232970.2, Feb 7, 1989

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: Dismissal of protest as untimely is affirmed where allegation that contracting agency improperly waived balance of payments provision in a request for proposals RFP was filed after the closing date for receipt of proposals.

GTE Hawaiian Tel-- Request for Reconsideration:

GTE Hawaiian Tel GTE requests reconsideration of our dismissal of its protest as untimely under request for proposals No. F62562-88-R-4024 issued by the Department of the Air Force for microwave link television program transmission at Camp Zama, Japan.

We affirm the dismissal.

In its initial protest, GTE protested the Air Force's failure to include the balance of payment (BOP) provision in the RFP. Under Federal Acquisition Regulation (FAR) Secs. 25.302, 25.305 (1984), as implemented by Defense Federal Acquisition Regulation Supplement DFARS Sec. 25.302(a)(72), the BOP preference provision is required to be included in solicitations for products for use outside the United States unless one of the applicable exceptions applies. 1 We dismissed GTE's protest as untimely because the protest was based on an alleged impropriety in the solicitation but was not filed prior to the closing date for the receipt of proposals. 4 C.F.R. Sec. 21.2(a)(1) 1988. That is, although proposals were due on September 9, 1988, GTE did not protest until September 30, after award.

In its request for reconsideration GTE states that its protest actually concerns the reason for the Air Force's waiver of the BOP provision, which it did not know until September 23, 1988, 2 days after the Air Force awarded the contract. At a meeting on that day, the Air Force informed GTE that it waived the BOP provision under the "Nonavailability in the United States" exception, DFARS Sec. 225.302(a)(72)(1)(x). GTE alleges that its proposal was based on equipment manufactured in the United States; that the Air Force was fully cognizant that its equipment was available before the waiver was granted by virtue of an unsolicited proposal that GTE had submitted; and that the waiver was therefore inappropriate. GTE claims that the proper timeliness standard is 4 C.F.R. Sec. 21.2(a)(2), which requires that a protest be filed within 10 working days after the basis for protest is known or should have been known.

Although GTE has recharacterized its protest by alleging that it is only protesting the reason the BOP provision was waived, rather than the absence of this provision from the RFP, we are not persuaded. Instead, we think the protest concerns an alleged impropriety apparent from the face of the solicitation and that GTE had sufficient information to protest this matter prior to the closing date.

GTE admits that it specifically noted the absence, as well as the import of the absence, of the BOP provision when it submitted its proposal, since the company often proposes on acquisitions made by the United States in foreign countries. However, GTE claims that this provision is often waived for legitimate reasons, so it was not on notice that it had a basis for protest until it found out the reason for the waiver. However, from our review of the list of exceptions to the BOP requirements, we discern no other exception, other than "Nonavailability in the United States," which could arguably be applied to this procurement. 2 Consequently, we find that GTE was not entitled to wait until after award was made to ascertain the reason for the absence of the BOP provision. Since GTE believed that its product could satisfy the agency's requirements, GTE had sufficient reason and time to question the absence of this solicitation provision, and, if not satisfied, protest to either the agency or to our Office prior to the closing date for receipt of proposals. See Textron- Diehl Track Co., B-230608; B-230609, July 6, 1988, 88-2 CPD Para. 12; Janke Co., Inc., B-225710.3, Mar. 18, 1988, 88-1 CPD Para. 286. In this regard, a protester has an affirmative obligation to diligently pursue the information that reasonably would be expected to reveal whether a basis for protest exists, and if it does not do so within a reasonable time, we will dismiss the protest as untimely. Horizon Trading Company; Drexel Heritage Furnishings, Inc., B-231177, B-231177.2, July 26, 1988, 88-2 CPD Para. 86.

Therefore, we continue to view GTE's protest as untimely, and the dismissal is affirmed.

/1/ The failure to include the BOP preference provision was significant in this case because GTE was the second low offeror and, if the BOP preference had been applied, it would have been the low evaluated offeror and thus entitled to the award.

/2/ The only "exception" that GTE speculates could have been applicable is "insufficient time to publish in the Commerce Business Daily." However, there is no such exception to theBOP requirements.