B-235889, Jul 19, 1989, 89-2 CPD 63

B-235889: Jul 19, 1989

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

Protest alleging specification deficiencies apparent on the face of the solicitation is untimely when not filed prior to bid opening. Thus the low bidder is in line for award. Bid opening was held on June 15. Six bids were received at bid opening. That none of the three lower-priced firms are eligible for award. Require that a protest based upon alleged improprieties in a solicitation which are apparent prior to bid opening must be filed prior to bid opening. KASDT argues the IFB plans and specifications were defective. This ground of protest is untimely. We have held that the requirement for a small business and small disadvantaged business subcontracting plan relates to the bidder's responsibility.

B-235889, Jul 19, 1989, 89-2 CPD 63

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties DIGEST: 1. Protest alleging specification deficiencies apparent on the face of the solicitation is untimely when not filed prior to bid opening. PROCUREMENT - Contractor Qualification - Responsibility - Information - Submission time periods 2. The requirement that a bidder submit a subcontracting plan relates to the bidder's responsibility, and therefore, the plan may be submitted at any time prior to the award of the contract. PROCUREMENT - Bid Protests - Allegation substantiation - Lacking - GAO review 3. Where protest by the fourth lowest bidder against the low bidder fails to state any valid basis of protest, and thus the low bidder is in line for award, protests against the second and third low bidders (not in line for award) need not be resolved.

KASDT Corporation:

KASDT Corporation, the fourth lowest bidder, protests the award of a contract to any other firm that bid lower than KASDT under invitation for bids (IFB) No. N62474-89-B-6685, issued by the Department of the Navy for construction of bachelor enlisted quarters at the Marine Corps Air Guard Combat Center, Twentynine Palms, California.

We dismiss the protest.

The Navy issued the IFB on May 12, 1989, and bid opening was held on June 15. Six bids were received at bid opening. KASDT submitted the fourth lowest bid. In its protest, dated June 16 and filed with our Office on June 19, KASDT alleges that the solicitation contained defective specifications, and that none of the three lower-priced firms are eligible for award.

Our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(1) (1988), require that a protest based upon alleged improprieties in a solicitation which are apparent prior to bid opening must be filed prior to bid opening. Here, KASDT argues the IFB plans and specifications were defective, resulting in unfair competition. This issue concerns an alleged solicitation impropriety apparent on the face of the solicitation. KASDT, however, did not protest this issue to our Office until June 19, after bid opening, and, accordingly, this ground of protest is untimely. See Norden Service Company, Inc., B-231575.2, Aug. 19, 1988, 88-2 CPD Para. 161.

KASDT next alleges that Baldi Bros. Constructors, the apparent low bidder, did not submit a subcontracting plan pursuant to Federal Acquisition Regulation (FAR) Sec. 52.219-9 (FAC 84-26) and Department of Defense (DOD) FAR Supplement (DFARS) Sec. 219.702-70 (1988 ed.). In this connection, however, we have held that the requirement for a small business and small disadvantaged business subcontracting plan relates to the bidder's responsibility, even where the solicitation requests the bidder to submit its plan with the bid. See Southwest Mobile Systems Corp., B-223940, Aug. 21, l986, 86-2 CPD Para. 213. Responsibility refers to a bidder's capacity to perform all contract requirements, and is determined not at bid opening, but at any time prior to award based on any information received by the agency up to that time. See Service Contractors, Inc., B-234311, Apr. 3, 1989, 89-1 CPD Para. 345. Here, the agency has advised our Office that Baldi did submit a subcontracting plan on June 19.

In addition, KASDT alleges that Baldi did not comply with the provision at FAR Sec. 52.219-13 (FAC 84-31) which provides that women owned small businesses should have the maximum practicable opportunity to participate in performing contracts awarded by federal agencies. We point out that this provision states a government policy, and does not mandate that a woman-owned business receive special consideration in any particular procurement. See F & T Data Services, Inc., B-225638, May 6, 1987, 87-1 CPD Para. 478. Here, the agency has advised that Baldi certified in its bid that it was not a woman-owned small business.

Finally, since, as indicated above, KASDT has not stated any valid basis to object to award to Baldi, the low bidder which is in line for award, the protests against award to the second and third lowest bidders (not in line for award) need not be resolved. See Service Contractors, Inc., supra.

Accordingly, the protest is dismissed.