Matter of: King-Fisher Company File: B-250791 Date: February 2, 1993
B-250791: Feb 2, 1993
DECISION King-Fisher argues that it was improperly excluded from competing under request for proposals (RFP) No. King-Fisher maintains principally that it was excluded from the competition due to a misclassification of the requirement in the Commerce Business Daily (CBD). The synopsis was published under CBD classification code "J. The RFP stated that the project was for the repair of the fire alarm system and provided for the removal of the old wired boxes and their replacement by the new wireless system. Was not one of the two firms which submitted a proposal. King-Fisher contends that the solicitation was improperly synopsized in the CBD under category "J. It should have been considered construction.
Matter of: King-Fisher Company File: B-250791 Date: February 2, 1993
PROCUREMENT Bid Protests Competition Adequacy PROCUREMENT Competitive Negotiation Requests for proposals Competition rights Contractors Exclusion Where agency synopsized in the Commerce Business Daily (CBD) its requirement for the replacement of a fire alarm system under the CBD classification code, "maintenance, repair, and rebuilding of equipment," agency met its obligation to synopsize the requirement in a manner reasonably expected to provide potential offerors with actual notice of the pending procurement since the classification code chosen by the agency reasonably fit the requirement and record does not show that protester's failure to participate in procurement resulted from agency's choice of classification code.
DECISION King-Fisher argues that it was improperly excluded from competing under request for proposals (RFP) No. DAHC21-92-R-0026, issued by the Army for the replacement of a fire alarm system at the Military Ocean Terminal, Bayonne, New Jersey. King-Fisher maintains principally that it was excluded from the competition due to a misclassification of the requirement in the Commerce Business Daily (CBD).
We deny the protest in part and dismiss it in part.
On July 30, 1992, the Army announced in the CBD its intention to conduct a procurement for the replacement of the current alarm system, which uses underground wires to transmit the signal from the pull boxes, with a wireless system using radio transmitted signals. The synopsis was published under CBD classification code "J," "maintenance, repair, and rebuilding of equipment." Subsequently, the agency sent the RFP to 31 firms. The RFP stated that the project was for the repair of the fire alarm system and provided for the removal of the old wired boxes and their replacement by the new wireless system. The agency, however, did not provide King-Fisher with a copy of the RFP, and the firm, which did not otherwise obtain a copy, was not one of the two firms which submitted a proposal.
King-Fisher contends that the solicitation was improperly synopsized in the CBD under category "J," "maintenance, repair, and rebuilding of equipment," rather than under either category "Y," "construction of structures and facilities," or "Z," "maintenance, repair or alteration of real property." According to the protester, since the project involves removing existing equipment and installing new equipment, it should have been considered construction. Further, it argues, since the work is associated with real property, advertising the project under category "J" was not sufficient. King-Fisher asserts that other "government installations advertize changes in their fire alarm systems under category `Z' or `Y'."
The agency, on the other hand, maintains that the procurement was properly classified in the CBD because, essentially, it involves the upgrade of equipment. It states that while it originally planned on refurbishing the equipment, due to the cost, the agency decided to "do repair by replacement." The contracting officer determined that code "J," with its focus on equipment, most closely described the procurement. The agency contends that code "Z" was considered inappropriate since "the effect on real property is negligible," and code "Y" was not selected because the work did not involve construction or alteration of buildings.
Congress has mandated that agencies notify potential offerors of pending procurements through publication of an announcement in the CBD. 15 U.S.C. Sec. 637(d) (Supp. III 1991); 41 U.S.C. Sec. 416 (Supp. II 1990). The regulations implementing those statutes require that the agency specify the appropriate classification under which the CBD notice will be published. Federal Acquisition Regulation (FAR) Sec. 5.207. The regulation provides that in choosing the proper CBD classification, the contracting officer is to classify the contemplated contract under the one classification code which most closely describes the acquisition. FAR Sec. 5.207(b)(4). Such classification determinations therefore necessarily involve some degree of judgment on the part of the contracting officer. Price Waterhouse, B-239525, Aug. 31, 1990, 90-2 CPD Para. 192. An agency's failure to synopsize pending procurements in the CBD in a manner reasonably expected to provide potential offerors with actual notice of the pending procurement violates the requirement under the Competition in Contracting Act, 10 U.S.C Sec. 2304(a)(1)(A) (1988), to obtain full and open competition. Do-Well Serv. & Supplies, Inc., 70 Comp.Gen. 187 (1991), 91-1 CPD Para. 48; Frank Thatcher Assocs., Inc., 67 Comp.Gen. 77 (1987), 87-2 CPD Para. 480.
We do not agree with the protester that the procurement fits within either of the categories it suggests, which are related to construction or maintenance of real property. While there are some elements of these two categories in the project, the work called for by the specifications, involving the replacement of key aspects of the existing system with new equipment using a different technology, clearly is not construction of facilities or maintenance of real property.
Moreover, we think the agency could reasonably expect that firms such as the protester which sell, install, maintain, and repair alarm systems, would contemplate notices under the CBD "J" code. In fact, King-Fisher has offered no explanation as to why such firms would not be expected to seek contracting opportunities under CBD classification code "J." We think code "J" reasonably relates to the components of the fire alarm system such as the transmitters and boxes, while the other two codes cited by the protester relate more to the installation and removal of the components. Consequently, we think that the agency reasonably could have expected that publication of the notice in this case would serve to effectively notify those firms that were most likely to respond to the solicitation, including King-Fisher. For whatever reason the protester failed to see or act upon the July 30 CBD notice, we cannot attribute such failure to improper action by the agency. See Price Waterhouse, supra.
In addition, King-Fisher argues for the first time in its comments on the agency's report that, irrespective of the CBD notice, the Army should have notified King-Fisher of the pending procurement. We dismiss this issue as untimely since a protester may not introduce a new issue in its comments that it could have raised in its initial submission to our Office. Our Regulations do not contemplate the unwarranted piecemeal presentation of protest issues. Bucky X-Ray Int'l Corp., B-231353, July 25, 1988, 88-2 CPD Para. 79. Since King-Fisher did not raise this argument in its initial protest and has offered no reason for the delay, we will not consider this protest argument.
The protest is denied in part and dismissed in part.