B-248236.2, May 13, 1992

B-248236.2: May 13, 1992

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Dismissal of protest is affirmed where contrary to protester's claim that solicitation was merely a market survey. Protest of the intended use of the solicitation as the basis for an award therefore was required to have been filed before the closing time for receipt of proposals. 2. Company that did not submit an offer under a solicitation is not an interested party to protest award to another firm. Finding that it essentially was a protest of the RFP's terms. Therefore should have been filed before the closing time for receipt of proposals. 4 C.F.R. JGB asserts that its protest was not based on any impropriety in the solicitation. The protest questioned the propriety of the award on the basis that the RFP was no more than a market survey device under which no award properly could be made.

B-248236.2, May 13, 1992

DIGEST: 1. Dismissal of protest is affirmed where contrary to protester's claim that solicitation was merely a market survey, request for proposals clearly provided that the agency intended to award a contract based upon the solicitation; protest of the intended use of the solicitation as the basis for an award therefore was required to have been filed before the closing time for receipt of proposals. 2. Company that did not submit an offer under a solicitation is not an interested party to protest award to another firm.

Attorneys

JGB Enterprises, Inc.-- Reconsideration:

JGB Enterprises, Inc. requests reconsideration of our April 8, 1992 decision in which we dismissed its protest against an award to Midwest Hydra-Line, Inc. under request for proposals (RFP) No. DLA770-92-R 5470, issued by the Defense Construction Supply Center for hose assemblies.

We affirm the dismissal.

JGB alleged in its protest that the agency acted improperly in awarding a contract to Midwest under the RFP instead of placing a delivery order with JGB under an existing requirements contract. We dismissed the protest as untimely, finding that it essentially was a protest of the RFP's terms, and therefore should have been filed before the closing time for receipt of proposals. 4 C.F.R. Sec. 21.2(a) (1) (1992).

In its reconsideration request, JGB asserts that its protest was not based on any impropriety in the solicitation. Instead, JGB contends, the protest questioned the propriety of the award on the basis that the RFP was no more than a market survey device under which no award properly could be made. JGB also maintains that the protest challenged the award based on the awardee's allegedly unreasonable price.

We find that JGB's protest was properly dismissed. Although JGB argues that the RFP was intended only as a market survey, our reading of the solicitation indicated that it was not intended as a market survey, but instead as the basis for a contract award. While JGB correctly notes that the cover sheet of the solicitation designated it as an "RFQ," that is, a request for quotations, page one of the solicitation identified it as an RFP and the solicitation number itself, found on every page of the solicitation, likewise identified it as an RFP. See Department of Defense Federal Acquisition Regulation Supplement Sec. 204.7003(a) (3). Furthermore, section L17 of the RFP stated that "the government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the government ..." In addition, section L19 stated that "the government intends to award a firm fixed price contract resulting from this solicitation." JGB therefore was on notice from the language in the RFP that the agency intended the solicitation to be the basis for an award. To be timely, JGB's protest of the intended use of the solicitation as the basis for an award was required to have been filed before the closing time for receipt of proposals. 4 C.F.R. Sec. 21.2(a) (1)

As to JGB's assertion that the award was improper because the awardee's price was unreasonably high, JGB did not make this argument in its protest, but only noted in its statement of facts that the award price, $146.80 per unit, was higher than JGB's offered reduced price of $138. Since the fact that an award price is higher than the protester's price does not by itself establish that the award price is unreasonable, see Tavloe Assocs., B-216110, June 3, 1985, 85-1 CPD Para. 625, we did not consider JGB's reference to the price difference to be a challenge to the reasonableness of the award price, and therefore did not address the matter in our decision. In any case, JGB did not submit an offer under the RFP, and therefore was not an interested party to protest award to another firm. Our Bid Protest Regulations define an interested party as an actual bidder or offeror whose direct economic interests would be affected by the award of a contract or by the failure to award a contract. 4 C.F.R. Sec. 21.0(a). Since JGB was not an actual offeror under this solicitation, it does not have the requisite direct economic interest in the award to warrant our consideration of its protest of the award price. See TLO Svs.-- Recon., B-241402.4, Nov. 21, 1990, 90-2 CPD Para. 417.

The dismissal is affirmed.