B-235818, Oct 3, 1989, 89-2 CPD 288

B-235818, Oct 3, 1989, 89-2 CPD 288

PROCUREMENT - Competitive Negotiation - Quotations - Evaluation - Technical acceptability DIGEST: 1. Quote was properly rejected where it did not meet one of the requirements of the request for quotations and the agency considered this feature necessary to meet its minimum needs. PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties 2. Protest against requirement set forth in request for quotations is untimely when filed after delivery order is placed and raised for the first time in response to agency report. 3. Protest challenging responsiveness of awardee's quote based on information in agency report is dismissed as untimely because the protester failed to diligently pursue the information by examining the awardee's Federal Supply Schedule contract which has been available to the public since 1986.

Dictaphone Corporation:

Dictaphone Corporation protests the issuance of a delivery order by the Army to Lanier Voice Products Division for a digital dictation system for the Madigan Army Medical Center, Fort Lewis, Washington. Dictaphone contends that as the low acceptable offeror it should have received the award.

We deny the protest in part and dismiss it in part.

The equipment solicited was listed on a mandatory General Services Administration (GSA) multiple-award Federal Supply Schedule (FSS) contract. Therefore, on March 24, 1989, the Army issued request for quotations (RFQ) No. DADA13-89-0053 for the system to Dictaphone and Lanier, both FSS contractors. The RFQ listed 12 different items of required equipment on a Lanier model number or equal basis. The RFQ also included several pages of characteristics that must be met by the system. Quotations based on other than the designated Lanier equipment were required to provide the manufacturer and model number of the items offered. Lanier responded with a quote of $157,485.06, using its brand name equipment, which compared to Dictaphone's price of $198,889.01 based on its equipment.

After reviewing the quotations and the FSS contracts, the agency found that the response from Lanier met all of the RFQ specifications. The Army also concluded that the higher priced system proposed by Dictaphone did not meet all of the requirements in that it required the use of two central processing units (CPU) rather than one as specified in the RFQ and that its price exceeded the maximum order limitation (MOL) of its FSS contract. A subsequent amendment to the protester's FSS contract eliminated the MOL problem and allowed Dictaphone to offer an alternative price of $176,013. Nevertheless, that price was still considerably higher than Lanier's, and the Army again found that the proposed system did not meet the single CPU requirement of the RFQ.

After the Lanier model was selected on May 15, the Army synopsized its intent to award to that firm in the Commerce Business Daily (CBD). Dictaphone submitted the only response to the CBD notice, once again proposing the same equipment at a price of $176,013. The agency thus placed a delivery order under Lanier's FSS contract. This protest followed.

The protester argues that its system is acceptable under the RFQ and Lanier's system is not. Specifically, Dictaphone contends that the Army has misinterpreted the requirements of the RFQ to find its product unsatisfactory. While Dictaphone does not deny that its system requires two CPUs rather than one as specified in the RFQ, it contends that this is a mere cosmetic requirement rather than a salient characteristic. The protester also argues for the first time in its response to the agency report that the requirement for a single CPU mandates that the unit be housed in a single cabinet and that goes beyond the minimum needs of the Army and is, in fact, overly restrictive of competition. Dictaphone further contends that the awardee's proposed system does not meet all of the requirements contained in the RFQ. In this regard, the protester argues that Lanier's proposed brand name system as described in that firm's FSS contract does not include an uninterrupted power system (UPS) which will provide a controlled powering down of the system in the event of an extended loss of or fluctuation in power as required by the RFQ.

First, we disagree with the protester that its equipment meets the RFQ salient characteristics. The protester argues that the essence of the agency's rejection of its offer was that the Dictaphone equipment would not fit within a single cabinet. Despite the protester's contrary argument, we do not think that the record shows that its unit was rejected because it would not fit within a single cabinet; it was rejected because its unit does not use a single CPU. The need to use more than one cabinet was just a consequence of its two CPU system. The protester does not argue that its unit is made up of only one CPU. In view of its failure to meet the RFQ requirement and the agency's view that such a feature is necessary to meet its minimum needs, we have no basis upon which to object to the agency's rejection of the protester's offer. See Herman Miller, Inc., B-230627, June 9, 1988, 88-1 CPD Para. 549.

To the extent that Dictaphone protests that the consequence of the RFQ's requirement for a single CPU-- the need for a single cabinet-- exceeds the agency's minimum needs and is, therefore, restrictive of competition, this argument is clearly untimely. Our Bid Protest Regulations provide that protests based upon alleged improprieties in a solicitation that are apparent prior to bid opening must be filed prior to that date. 4 C.F.R. Sec. 21.2(a)(1) (1989). Here, the provision being challenged was in the RFQ when issued. Consequently, this portion of Dictaphone's protest, filed after the delivery order was awarded and raised for the first time in its response to the agency report, is untimely and will not be considered on the merits.

We also dismiss Dictaphone's argument concerning Laniers' alleged failure to offer an acceptable UPS as untimely. When Dictaphone filed its initial protest on June 9, it stated that it was aware of the May 15 CBD notice which set forth the Army's intent to make award to Lanier based on that firm's model LX-120 voicewriter system. That system was also listed in the RFQ as the brand name model under item No. 0001. Lanier's FSS contract, which according to the protester, shows that the Lanier model LX -120 does not meet the RFQs UPS requirements, was available to the public since 1986. There is nothing in the record which shows that the protester took any steps to obtain the Lanier FSS contract at the time it was informed that the award to that firm would be based on its model LX-120. Instead, it did not raise this issue until it filed its comments on the agency report on August 10, 2 months after the initial protest was filed.

Our Regulations require that to be timely, a protest issue like this one must be raised within 10 working days after the basis of protest is known or should have been known. 4 C.F.R. Sec. 21.2(a)(2). Further, the protester must diligently pursue the information forming the ground for the protest. Adrian Supply Co.-- Reconsideration et al., B-227022.3 et al., Feb. 23, 1988, 88-1 CPD Para. 184. If the protester fails to do so within a reasonable time, we will dismiss the protest as untimely. Id. It is our view that the protester's actions here did not constitute diligent pursuit of the information needed.

Finally, we will not consider the argument in the initial Dictaphone protest that the agency attempted to manipulate Lanier's MOL. The Army responded to the argument in its report and Dictaphone did not rebut the Army's explanation or mention the issue in its comments on the report. therefore consider this protest issue abandoned. Precision Echo, Inc., B-232532, Jan. 10, 1989, 89-1 CPD Para. 22.

The protest is denied in part and dismissed in part.