Matter of: Halifax Technical Services, Inc. File: B-246236.3 Date: February 16, 1993

B-246236.3: Feb 16, 1993

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Is untimely. PROCUREMENT Bid Protests Premature allegation GAO review Contention before award that competitors failed to provide required certification is grounded in speculation that agency may take improper action and therefore is premature. Halifax is the incumbent contractor. The Service Contract Act requires that service employees of a successor contractor be paid health and welfare benefits not less than those that would have been paid to the incumbent's employees under the CBA. The closing date for receipt of proposals was Monday. The contracting officer advised Halifax that he was relying on advice from the Department of Labor. Argued that the proposed evaluation was improper and unreasonable.

Matter of: Halifax Technical Services, Inc. File: B-246236.3 Date: February 16, 1993

PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Adverse agency actions Protest not filed within 10 working days of closing date for proposal receipt, which constituted initial adverse action on agency-level protest raising same issues, is untimely. Contracting officer's alleged comment, made more than a week after closing date for receipt of proposals and after denying agency-level protest, that protester had 10 days within which to file protest to GAO, does not mandate an exception to that rule. PROCUREMENT Bid Protests Premature allegation GAO review Contention before award that competitors failed to provide required certification is grounded in speculation that agency may take improper action and therefore is premature.

Attorneys

DECISION Halifax Technical Services, Inc., protests the method by which the Marine Corps plans to evaluate health and welfare costs under request for proposals (RFP) No. M67004-90-R-0094. Halifax filed a protest of the same subject with the Marine Corps prior to receipt of proposals, and filed the protest with our Office more than 10 working days after the closing date.

We dismiss the protest.

The RFP contemplates a cost-plus-award-fee contract for the loading, maintenance, and off-loading of military equipment onboard commercial ships chartered for the Maritime Prepositioning Forces (MPF). Halifax is the incumbent contractor. Halifax's collective bargaining agreement (CBA) with its service employees requires health and welfare benefits and estimates their cost at $2.36/hour. Halifax's CBA permits employees to waive health and welfare benefits and be paid the equivalent hourly compensation in lieu of benefits.

The Service Contract Act requires that service employees of a successor contractor be paid health and welfare benefits not less than those that would have been paid to the incumbent's employees under the CBA. Prior to receipt of initial best and final offers, the Marine Corps advised offerors that it would evaluate all offeror's health and welfare costs at the estimated cost for these benefits ($2.36/hour) indicated in Halifax's CBA.

After receipt of best and final offers, the contracting officer, as the result of a subsequent inquiry from Halifax and consultations with the Department of Labor, learned that successor contractors could provide insurance coverage at lower cost, but that coverage and all other benefits had to be identical to that provided by the incumbent. On September 9, 1992, the contracting officer issued a second request for best and final offers which stated that health and welfare costs would be evaluated at $2.36/hour, unless the offeror proposed lower costs and furnished certification from its insurance carrier that its insurance coverage would be identical to that provided by the incumbent. The next day, the contracting officer issued a clarification stating that since 47 percent of the incumbent's service employees elected an additional $2.36/hour compensation in lieu of insurance coverage, $2.36/hour would be applied to that percentage of an offeror's union employees, and health and welfare benefits for the remaining 53 percent would be evaluated at the proposed rate. Subsequent clarifications from the contracting officer confirmed this method of evaluating health and welfare costs. The closing date for receipt of proposals was Monday, September 21.

Between July 28 and September 16, 1992, Halifax wrote to the contracting officer on at least four occasions challenging the propriety of accepting offers that proposed health and welfare benefits at less that $2.36/hour. The contracting officer advised Halifax that he was relying on advice from the Department of Labor.

On Friday, September 18, Halifax protested the proposed method of evaluating health and welfare costs to the contracting officer. Halifax contended that all offerors should be evaluated at $2.36/hour, argued that the proposed evaluation was improper and unreasonable, and charged that the agency was deviating from the Federal Acquisition Regulation (FAR). Halifax also claimed that the agency's disclosure of Halifax's priced medical benefits package violated FAR Sec. 3.104-5 and encouraged and authorized an illegal auction, and challenged the contracting officer's interpretation of the Service Contract Act and proposed reliance on the offerors' certifications of identical benefits provided in response the second request for best and final offers. The agency received proposals on September 21, without having changed the RFP in response to Halifax's protest. The contracting officer issued a letter to Halifax on September 30 denying the protest. Halifax states that the contracting officer, in a telephone conversation on or about October 1, 1992, said that Halifax had 10 days to protest to our Office if Halifax did not agree with his decision on Halifax's agency-level protest.

Halifax filed its protest with our Office on October 9. The allegations in Halifax's protest to our Office are substantially the same as those in its protest to the agency.

Halifax protested to our Office more than 10 working days after the closing date for the receipt of final proposals. If an agency-level protest has been filed initially, our Bid Protest Regulations require that any subsequent protest to our Office be filed within 10 working days after the protester has actual or constructive knowledge of initial adverse action on its protest. 4 C.F.R. Sec. 21.2(a)(3). We have consistently viewed the receipt of proposals prior to resolution of an agency-level protest to be an adverse action with respect to the protest. See, e.g., Ciba Corning Diagnostics Corp.--Reconsideration, B-247617.2, Mar. 31, 1992, 92-1 CPD Para. 327; Bollinger Machine Shop & Shipyard, Inc., B-245702, Sept. 23, 1991, 91-2 CPD Para. 269, aff'd B-245702.2, Jan. 16, 1992, 92-1 CPD Para. 87.

As a general matter, a contracting officer's erroneous advice about our Office's timeliness rules does not excuse a company's failure to protest in a timely manner. See, e.g., Thompson Sign Co.--Request for Reconsideration, B-239453.2, July 15, 1990, 90-2 CD Para. 13. We have recognized an exception in some circumstances where the contracting officer told a protester in advance of the closing date not to consider the closing as adverse action on the protest. See, e.g., Interface Flooring Systems, Inc., B-225439, Mar. 4, 1987, 87-1 CPD Para. 247; Centurial Products, 64 Comp.Gen. 858 (1985), 85-2 CPD Para. 305. Here, however, the contracting officer's alleged comment that Halifax had 10 days to protest was made after denying Halifax's protest and more than a week after the closing date. Protesters are charged with constructive notice of our timeliness rules, see Buck-El, Inc., B-246425, Dec. 19, 1991, 91-2 CPD Para. 565, and the issues Halifax raised in its agency- level protest and then in the protest to our Office are untimely.

Halifax also raised an issue in its comments in response to the agency report that Halifax contends is new, and therefore timely. In this regard, Halifax now alleges that the Department of Labor's interpretation of the Service Contract Act is wrong. This contention, however, is little more than the substitution of the Department for the contracting officer in Halifax's argument in both its agency-level protest and its protest to our Office against the contracting officer's interpretation of the Act, which Halifax knew then was attributable to the Department of Labor. This contention thus is untimely.

Halifax also asserts that if its various bases for protest are untimely, we should nonetheless consider them under the significant-issue exception to our timeliness regulations, 4 C.F.R. Sec. 21.2(c), because the protest presents unique issues of widespread interest to the procurement community. In support of this contention, Halifax characterizes the Service Contract Act questions raised as involving issues of contract administration, and styles the central issue in its protest as being whether an agency may apply contract administration considerations in the pre-award evaluation of proposals. In our view, however, the issue is simply whether an agency, in establishing evaluation criteria, may rely on advice from another agency that is charged with the responsibility of enforcing and interpreting the provision in question. We do not find this to warrant invoking the exception to our timeliness rules.

In final comments, Halifax alleges that other offerors' did not certify that their benefits were identical to those provided by Halifax, as required by the request for best and final offers. Halifax contends that the Marine Corps should halt the evaluation and not award to any competitor that did not provide the certification. However, a protest grounded on speculation that the agency may do something wrong is premature. PRC, Inc., B-233651.8, et al. (72 Comp.Gen. ___), Sept. 29, 1992, 92-2 CPD Para. 215; NITCO, B-246185.3, Sept. 17, 1992, 92-2 CPD Para. 183.

The protest is dismissed.