B-242175, Jan 3, 1991, 90-2 CPD 9

B-242175: Jan 3, 1991

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Protest alleging that awardee's price exceeded the solicitation ceiling price and that contracting official improperly expressed a preference for extravagant proposal formats contrary to the solicitation instructions is untimely under the Bid Protest Regulations when not filed within 10 working days after the protester learned of the facts on which it bases its protest. Protest against certification requirement in solicitation is untimely under the Bid Protest Regulations when not filed until several months after receipt of initial offers. Since the Bid Protest Regulations are published in the Federal Register and protesters are charged with constructive notice of their contents. That contracting officials improperly emphasized proposals that were extravagantly presented.

B-242175, Jan 3, 1991, 90-2 CPD 9

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: 1. Protest alleging that awardee's price exceeded the solicitation ceiling price and that contracting official improperly expressed a preference for extravagant proposal formats contrary to the solicitation instructions is untimely under the Bid Protest Regulations when not filed within 10 working days after the protester learned of the facts on which it bases its protest. PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - Apparent solicitation improprieties 2. Protest against certification requirement in solicitation is untimely under the Bid Protest Regulations when not filed until several months after receipt of initial offers. PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10-day rule 3. Agency's allegedly erroneous advice to a protester on where and when a protest could be filed does not excuse an untimely filed protest at the General Accounting Office, since the Bid Protest Regulations are published in the Federal Register and protesters are charged with constructive notice of their contents.

Attorneys

Transportation Operations Research Institute:

Transportation Operations Research Institute (TORI) protests the award of a contract to Applied Ordnance Technology, Inc. under request for proposals (RFP) No. 0000-030056, issued by the Department of State for safety specialist services. The protester contends that the awardee's price exceeded the ceiling price established in the solicitation, that contracting officials improperly emphasized proposals that were extravagantly presented, and that the RFP requirement that the specialist be certified by the Board of Certified Safety Professionals is unreasonable.

We dismiss the protest as untimely.

The RFP requested offerors to furnish a per hour rate for the specialist for a base period of 4 months with four 1 year options. On June 15, 1990, the closing date for submission of initial proposals, the agency received nine proposals, including the protester's. By letter dated July 25, TORI was informed that its proposal had been found technically unacceptable and on August 3 the agency awarded a contract to Applied Ordnance.

TORI filed a Freedom of Information Act (FOIA) request on August 16. The agency has informed us that it has not as yet released any documents in response to that request. In telephone conversations with two contracting officials, the protester was informed that Applied Ordnance had received award and was told the per hour contract price. Although the agency is unable to state the exact date of the conversation in which this information was furnished, they have informed us that the last conversation occurred on November 5. TORI concedes this might well be the case. TORI filed its protest with our Office on November 27.

TORI first contends that the awardee's per hour price over the contract duration was far in excess of the $215,000 ceiling price established in the RFP. Our Bid Protest Regulations require that protests be filed within 10 working days after the basis of protest is known or should have been known, whichever is earlier. 4 C.F.R. Sec. 21.2(a)(2) (1990). Since TORI knew by November 5, at the latest, of the awardee's price, its protest of this issue, filed with our Office on November 27, is untimely.

Similarly, TORI's protest that a contracting official told it that its submissions should be "slick and polished," which contradicted the RFP's instructions to keep proposals simple, is untimely since it also was based on conversations which occurred by November 5, at the latest, but only protested on November 27. 4 C.F.R. Sec. 21.2(a)(2). Nor will we consider the protester's complaint about the reasonableness of the RFP requirement that the safety specialist be certified by the Board of Certified Safety Professionals. This matter was apparent from the face of the RFP and under our Bid Protest Regulations, protests based on such apparent improprieties must be filed prior to the closing date for receipt of initial proposals to be considered timely. 4 C.F.R. Sec. 21.2(a)(1).

TORI complains that it was not properly informed of the proper address of where to protest or the time limits on protests. However, TORI's alleged unfamiliarity with our Bid Protest Regulations does not excuse an untimely filing, even where the contracting agency, as alleged by TORI, gives erroneous advice, or fails to give advice, regarding our Regulations. Bio -Rad, B-239832, June 21, 1990, 90-1 CPD Para. 577. This is so because our Regulations are published in the Federal Register and protesters are charged with constructive notice of their contents. Id.

The protest is dismissed.