B-234935, Jul 19, 1989, 89-2 CPD 61

B-234935, Jul 19, 1989, 89-2 CPD 61

PROCUREMENT - Bid Protests - Agency-level protests - Oral protests PROCUREMENT - Bid Protests - Agency-level protests - Protest timeliness - GAO review DIGEST: Allegation that contracting agency improperly made multiple awards under solicitation which did not include Federal Acquisition Regulation (FAR) Sec. 52.214-22 (FAC 84-5) governing multiple awards is dismissed as untimely where the protester only orally complained of award to agency and did not file a written agency-level protest until 5 months later.

Barnes Electric Company, Inc.:

Barnes Electric Company, Inc., protests the award of multiple contracts under invitation for bids (IFB) No. DAMD17-88-B-0134, issued by the United States Army Medical Research Acquisition Activity, for the removal, transportation, disposal, and replacement of PCB contaminated electrical transformers at Fort Detrick, Maryland. Barnes contends that the IFB did not permit the award of multiple contracts because it did not include Federal Acquisition Regulation (FAR) Sec. 52.214-22 (FAC 84-5) governing multiple awards.

We dismiss the protest.

The IFB was issued on August 9, 1988, and required bidders to furnish lump-sum prices for nine separate line items. Under section M of the IFB, pertaining to the evaluation factors for award, bidders were advised that the government may accept any item or combination of items unless doing so is precluded by a restrictive limitation in the solicitation or the bid. At bid opening on September 13, the Army received two bids. Barnes submitted the lowest aggregate bid price of $897,000. However, the Army determined that by splitting the award between the two bidders on the basis of line item pricing, the government would obtain the most advantageous price, $87,881 less than Barnes' low aggregate price. Therefore, on September 30, the Army awarded five line items to Barnes totalling $559,000 and four line items to the other bidder at a total price of $250,119.

By letter dated February 21, 1989, Barnes filed what it described as a claim to the contracting officer requesting that the Army not make multiple awards under the IFB and award the entire contract to Barnes. the letter, Barnes indicated that the claim was being filed because the contract specialist denied its initial agency-level protest and advised it to submit such a claim. On March 10, 1989, the contracting officer denied Barnes' claim. By letter to our Office dated March 27, 1989, Barnes protested the contracting officer's denial of its claim. Essentially, Barnes contends that the IFB did not permit the Army to make multiple awards because it did not contain FAR Sec. 52.214-22, which specifically provides for multiple awards.

The Army contends that the protest is untimely. The Army reports that no formal protest was received from Barnes until February 21 and the contract specialist has denied ever previously considering a written agency-level protest from Barnes. Barnes contends that there were several oral communications with the contract specialist which constituted an oral protest.

Although Barnes contends that the oral communications constituted an agency-level protest, an agency-level protest must be a written objection to an agency about an award or proposed award; oral complaints are not sufficient. See FAR Sec. 33.101; Americover Co., B-234352, Mar. 28, 1989, 89-1 CPD Para. 320. Since Barnes' oral protest did not constitute a valid agency-level protest, we find that the protest filed here more than 5 months after the award to be untimely because it was not filed within 10 working days after the protest basis was known or should have been known, as required by our Bid Protest Regulations. See 4 C.F.R. Sec. 21.2(a)(2) (1988).

In any event, the Army did not act improperly by making a split award in this case. We have held that sealed-bid contracts must be awarded to the government's best price advantage, whether that advantage arises from awarding a single contract or multiple contracts, and where multiple awards are not prohibited by the IFB (and would result in the lowest overall cost), multiple awards are to be made. Whether FAR Sec. 52.214-22 is contained in the solicitation has no bearing on the propriety of multiple awards. See Deytens Shipyards, Inc., B-229845, Apr. 19, 1988, 88-1 CPD Para. 382; Goodman Ball, Inc., B-217318, Mar. 25, 1985, 85-1 CPD Para. 348. Here, neither Barnes nor the other awardee included any restrictions in their bids and the IFB did not contain any restrictions and specifically advised bidders of the government's right to accept any item or combination of items. Therefore, we do not find any basis to question the Army's decision to split the award, since it represented the best price advantage.

The protest is dismissed.