B-235280, May 11, 1989, 89-1 CPD 447

B-235280: May 11, 1989

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PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: Protest that procurement should have been set aside for competition exclusively by Indian firms is untimely and not for consideration on the merits when filed after the bid opening date. Improperly was not set aside for Indian-owned firms under the Buy Indian Act. The solicitation was for road construction. The absence of an Indian-owned firm set-aside provision should have been apparent to Adams from the face of the solicitation. Admas should have filed its protest prior to the April 19 bid opening. Because the protest was filed 2 days later than that. The protest is untimely. We note that there is nothing in the Buy Indian Act that requires particular procurements to be set aside for Indian-owned firms.

B-235280, May 11, 1989, 89-1 CPD 447

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: Protest that procurement should have been set aside for competition exclusively by Indian firms is untimely and not for consideration on the merits when filed after the bid opening date.

Adams Mechanical:

Adams mechanical protests that invitation for bids (IFB) No. IFB-03 04-19 -89, issued by the Portland Area Indian Health Service, Public Health Service, Department of Health and Human Services, improperly was not set aside for Indian-owned firms under the Buy Indian Act, 25 U.S.C.A. Sec. 47 (West Supp. 1989). The solicitation was for road construction.

Our Bid Protest Regulations require protests of alleged solicitation improprieties to be filed prior to bid opening. 4 C.F.R. Sec. 21.2(a)(1) (1988); Orion Food Services, Ltd., B-233145, Dec. 5, 1988, 88-2 CPD Para. 563. The absence of an Indian-owned firm set-aside provision should have been apparent to Adams from the face of the solicitation. Thus, Admas should have filed its protest prior to the April 19 bid opening. Because the protest was filed 2 days later than that, the protest is untimely.

In any case, we note that there is nothing in the Buy Indian Act that requires particular procurements to be set aside for Indian-owned firms. Under 48 C.F.R. Sec. 380.501 (1987), contracting officers for the Indian Health Service are vested with the discretionary authority to negotiate exclusively with Indian contractors in procurements such as the one at issue here. OUr Office limits review of decisions not to restrict procurements to Indian firms to cases where there has been a prima facie showing of a possible abuse of the broad discretion conferred by the Buy Indian Act. See Dept. of Health and Human Services-- Request for Advance Decision, B-232364, Oct. 5, 1988, 88-2 CPD Para. 325. IN this case, as Adams simply objects to the unrestricted nature of the procurement, even if its protest had been timely filed, it provided no basis for our Office to conclude that there was any abuse of the discretion provided for under the Act.

The protest is dismissed.