Matter of: Rexnord Corporation File: B-248553 Date: June 25, 1992

B-248553: Jun 25, 1992

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The submission of a timely expression of interest is a prerequisite to the filing of a protest against the proposed award. Asserting that there was no reason to limit competition to the Kamatics part. The protester should at the latest have filed its protest within 10 days of receipt of the September 11 letter. Since it was that refusal to consider use of the protester's part that formed the basis for protest. 4 C.F.R. Is therefore clearly untimely. That the funds used were Army Stock Funds. There was therefore no material change in the requirements of the RFP from those contained in the CBD notice of June 4.

Matter of: Rexnord Corporation File: B-248553 Date: June 25, 1992

PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Advertising PROCUREMENT Noncompetitive Negotiation Sole sources Notification Advertising Where agency publishes notice in Commerce Business Daily of plans to make sole-source award, the submission of a timely expression of interest is a prerequisite to the filing of a protest against the proposed award, and protest must be filed within 10 days of receiving notice of agency's decision not to consider protester for award.

Attorneys

DECISION Rexnord Corporation protests the terms of request for proposals (RFP) No. DAAJ09-92-R-0483, issued on a brand name only basis by the U.S. Army Aviation Systems Command, for trunnion assembly swashplates for the UH-1 helicopter, Kamatics Corporation part No. KSP9001-5. Rexnord protests the noncompetitive nature of the solicitation.

We dismiss the protest as untimely.

On June 4, 1991, the agency published a synopsis in the Commerce Business Daily (CBD) of the proposed award of a contract to Kamatics Corporation as the only approved source for the part; the CBD synopsis referenced note 22 which encouraged other firms that could produce the part to identify themselves by submitting expressions of interest within 45 days. The agency had earlier received a request from Rexnord by letter dated May 7 to "reinstate" its own part number YD241A for use on the UH-1; according to the protester, the Army had in the 1960s approved the Rexnord part, the only part approved by Bell Helicopter for use on civilian versions of the UH-1.

Rexnord did not directly respond to the CBD notice. On September 11, the agency responded to the protester's previous letter, declining to consider the protester as a source of qualified parts and alleging certain maintenance advantages, including a longer life for the Kamatics part and the need for lubrication of the Rexnord part, to justify its preference to continue purchase of the Kamatics part.

On February 28, 1992, the agency issued the solicitation with a closing date of March 27 for receipt of initial proposals. On March 27, Rexnord filed a protest with the agency, asserting that there was no reason to limit competition to the Kamatics part; the agency dismissed this protest as untimely, and this protest to our Office followed.

In order for a protest against an agency's sole-source procurement to be timely, we require a protester to submit a timely expression of interest responding to a CBD notice and to receive a negative agency response as a prerequisite. DCC Computers, Inc., 70 Comp.Gen. 534 (1991), 91-1 CPD Para. 514. The protester did not specifically respond to the CBD notice. Further, even if we assume that the protester's earlier correspondence satisfied the requirement to respond to the notice within 45 days, the protester should at the latest have filed its protest within 10 days of receipt of the September 11 letter, since it was that refusal to consider use of the protester's part that formed the basis for protest. 4 C.F.R. Sec. 21.2(a)(2) (1992). Rexnord's protest, filed more than 6 months after it learned the basis for its protest, is therefore clearly untimely.

While Rexnord argues that the agency published two more CBD notices concerning the requirement for trunnion assembly swashplates, those notices did not alter the contents of the original notice in any material way; they merely changed the solicitation number to reflect purchase in fiscal year 1992, rather than 1991. The protester also argues both that the original notice contained a "subject to availability of funds" notice and that the agency canceled the original solicitation because available funds expired at the end of the fiscal year; the record shows, however, that the funds used were Army Stock Funds, which do not expire at the end of the fiscal year. There was therefore no material change in the requirements of the RFP from those contained in the CBD notice of June 4.

We dismiss the protest.