Matter of: Advanced Engineering and Planning Corp., Inc. File: B-250879 Date: November 4, 1992

B-250879: Nov 4, 1992

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We dismiss the protest as untimely because it was filed more than 10 days after the protester knew. Or should have known. Each proposal included a certification that the offeror was an SDB. NAVSEA notified the offerors that Advanced Engineering was the apparent successful offeror. Was not eligible for award pursuant to DFARS Sec. 219.301(a). SBA informed NAVSEA that Advanced Engineering was a small business at the time of proposal submission. NAVSEA also orally notified Advanced Engineering that if SBA determined that Advanced Engineering was not small on the contract award date. SBA determined that Advanced Engineering was not small on the date of award. [2] By letter of August 14. It was not eligible for award because it was not small at the time of award.

Matter of: Advanced Engineering and Planning Corp., Inc. File: B-250879 Date: November 4, 1992

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DECISION

Advanced Engineering and Planning Corp., Inc. protests its exclusion from negotiations under request for proposals (RFP) No. N00024-91-R-6404(Q), issued by the Department of the Navy, Naval Sea Systems Command (NAVSEA) Mine Warfare Program Office. Advanced Engineering asserts that NAVSEA has improperly excluded it from consideration for award based on an incorrect interpretation of Department of Defense Federal Acquisition Regulation Supplement (DFARS) Sec. 219.301(a) regarding contractor eligibility for award under small disadvantaged business (SDB) set-asides.

We dismiss the protest as untimely because it was filed more than 10 days after the protester knew, or should have known, the basis for its protest.

NAVSEA issued the RFP on June 13, 1991, as an SDB set-aside. Five offerors, including Advanced Engineering, submitted proposals on November 21. Each proposal included a certification that the offeror was an SDB.

On June 12, 1992, NAVSEA notified the offerors that Advanced Engineering was the apparent successful offeror. On June 18, an offeror protested to NAVSEA asserting that Advanced Engineering did not meet the size requirements for an SDB at the time of proposal submission and at the time of award and, therefore, was not eligible for award pursuant to DFARS Sec. 219.301(a). In response to this protest, NAVSEA requested from the Small Business Administration's (SBA) Philadelphia regional office a formal determination of Advanced Engineering's size at the time of proposal submission. On July 21, SBA informed NAVSEA that Advanced Engineering was a small business at the time of proposal submission, [1] and NAVSEA awarded a contract to Advanced Engineering.

On July 30, NAVSEA requested that SBA determine Advanced Engineering's size status as of the date of award. NAVSEA also orally notified Advanced Engineering that if SBA determined that Advanced Engineering was not small on the contract award date, then NAVSEA would terminate Advanced Engineering's contract and make award to an otherwise eligible offeror. On August 10, SBA determined that Advanced Engineering was not small on the date of award. [2]

By letter of August 14, NAVSEA notified Advanced Engineering of SBA's adverse size determination. NAVSEA informed Advanced Engineering that, pursuant to DFARS Sec. 219.301, it was not eligible for award because it was not small at the time of award. NAVSEA further instructed Advanced Engineering that NAVSEA would terminate the contract approximately 90 days from the date of the letter.

On September 11, NAVSEA reopened discussions with the other offerors; responses were due by October 5. Advanced Engineering allegedly learned on September 30 that NAVSEA had reopened discussions in order to make a new selection under the RFP. On October 6, Advanced Engineering requested that NAVSEA include it in the recompetition.

On October 13, Advanced Engineering filed this protest in our Office asserting that NAVSEA had improperly excluded it from the competition based on an improper interpretation that DFARS Sec. 219.301(a) requires a size determination at the time of award.

Our Bid Protest Regulations contain strict rules requiring timely submission of protests. Under these rules, protests not based upon alleged improprieties in a solicitation must be filed no later than 10 working days after the protester knew, or should have known, the basis for protest, whichever is earlier. 4 C.F.R. Sec. 21.2(a)(2) (1992). In this regard, a protester's receipt of oral information forming the basis of its protest is sufficient to start the 10-day time period running; written notification is not required. Swafford Indus., B-238055, Mar. 12, 1990, 90-1 CPD Para. 268.

The basis of protest here does not assert an impropriety in the RFP, but rather questions NAVSEA's determination that Advanced Engineering was not eligible to receive award under the RFP and should not be included in further discussions. NAVSEA orally advised Advanced Engineering that if SBA determined Advanced Engineering was not small at the time of award, NAVSEA would terminate Advanced Engineering's contract and proceed to select an otherwise eligible offeror. The August 14 letter informing Advanced Engineering of the impending termination confirmed that Advanced Engineering was no longer eligible for award. Advanced Engineering was cognizant at that time that the reasons for the termination action was SBA's size determination (currently under appeal) that Advanced Engineering was not small as of the time of award. Since Advanced Engineering filed this protest more than 10 days after receiving the August 14 letter, this basis for protest is untimely.

Advanced Engineering also asserts that, even if a contractor must be small at the time of award to be eligible for award, it would still be eligible to participate in negotiations because its size status at the future award date has yet to be determined. However, Advanced Engineering should have known upon receipt of the August 14 letter that NAVSEA would reopen discussions and would not include Advanced Engineering in those discussions. Once NAVSEA told Advanced Engineering that it was not eligible for award, it was unreasonable for Advanced Engineering to assume that NAVSEA would still consider it for that award.

Our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Air Inc.--Request for Recon., B-238220.2, Jan. 29, 1990, 90-1 CPD Para. 129. In order to prevent those rules from becoming meaningless, exceptions are strictly construed and rarely used. Id.

To the extent that Advanced Engineering is asserting that the failure to solicit it is an impropriety incorporated into the solicitation, it is also untimely under this approach since the protest was not filed until after revised proposals were received from the solicited offers and the protester was cognizant prior to the October 5 closing date that it was not being solicited. Our Bid Protest Regulations specifically require that protests based upon alleged improprieties in a solicitation which are apparent prior to the closing date for receipt of proposals must be filed prior to the time for closing. 4 C.F.R. Sec. 21.2(a)(1). This rule includes challenges to alleged improprieties which did not exist in the initial solicitation but which are subsequently incorporated into the solicitation. In such cases, the solicitation must be protested not later than the next closing date for receipt of proposals following the incorporation. NASCO Aircraft Brake, Inc., B-237860, Mar. 26, 1990, 90-1 CPD Para. 330.

The protest is dismissed.

1. The offeror raising the agency-level protest appealed this size determination to SBA. This appeal is still pending.

2. Advanced Engineering appealed this size determination to SBA. This appeal is still pending.