Matter of: GBF Medical Group/Safety Product Marketing, Inc.-- Reconsideration File: B-250923.2 Date: November 24, 1992

B-250923.2: Nov 24, 1992

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PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration ROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Protest against elimination of proposal from the competitive range was properly dismissed as untimely when filed more than 10 working days after the protester was advised of its exclusion from the competitive range and the reasons for its exclusion. PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards Protester whose proposal has been eliminated from the competitive range is not an interested party to challenge award to another firm. Or should have known. The contracting officer advised GBF that its proposal was unacceptable and that the firm was therefore ineligible for award.

Matter of: GBF Medical Group/Safety Product Marketing, Inc.-- Reconsideration File: B-250923.2 Date: November 24, 1992

PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration ROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule Protest against elimination of proposal from the competitive range was properly dismissed as untimely when filed more than 10 working days after the protester was advised of its exclusion from the competitive range and the reasons for its exclusion. PROCUREMENT Bid Protests GAO procedures Interested parties Direct interest standards Protester whose proposal has been eliminated from the competitive range is not an interested party to challenge award to another firm.

Attorneys

DECISION GBF Medical Group/Safety Product Marketing, Inc. (GBF) requests reconsideration of our October 21, 1992, dismissal of its protest as untimely. GBF had protested the Department of the Army's exclusion of GBF's proposal from the competitive range under request for proposals (RFP) No. DADA15-92-R-0112. We dismissed the protest because we found that it had not been filed within 10 working days after GBF knew, or should have known, the basis for its protest, as required by our Bid Protest Regulations, 4 C.F.R. Sec. 21.2(a)(2) (1992). We deny the request for reconsideration. GBF submitted a proposal under the RFP to provide medical collection kits to Walter Reed Army Medical Center. The Army technical team evaluated GBF's proposal and found it technically unacceptable. By letter dated September 17, 1992 (received by GBF on that same day by telefacsimile), the contracting officer advised GBF that its proposal was unacceptable and that the firm was therefore ineligible for award. In that letter, the Army advised GBF that its proposal was found unacceptable because the firm failed "to submit the required pouches [samples] for evaluation as required" by the RFP that "made it impossible to evaluate [the] firm's technical capabilities to furnish [conforming] items." On October 14, GBF filed a protest with our Office, challenging its exclusion from the competitive range and challenging the award of the contract to another firm, Fitzco, Inc. Specifically, GBF, in its protest, complained that the RFP's specifications were written in a manner which prevented the firm from submitting samples in a timely manner, and that the government otherwise provided insufficient time to provide samples; GBF also complained that Fitzco allegedly had access to "inside or advance" information and that the RFP contained allegedly improper terms concerning patent rights.

We dismissed as untimely the protest filed on October 14, because it was filed more than 10 working days after the protester was advised in the September 17 letter of its proposal's exclusion from the competitive range and of the specific reasons for the proposal's rejection. See 4 C.F.R. Sec. 21.2(a)(2). A protest against the elimination of a proposal from the competitive range must be filed within 10 working days of when the agency notifies the protester of its elimination if the notice contains the specific reasons why the agency rejected the proposal. See Anthony Hernandez--Recon., B-246101.2, Nov. 20, 1991, 91-2 CPD Paras. 487. In such circumstances, a protester may not wait until the contract has been awarded to protest its exclusion.

In its request for reconsideration, GBF argues that its protest was timely because it was filed within 10 working days of the date the firm was notified of the award to Fitzco. As stated above until the contract has been awarded to protest its exclusion from the competitive range where, as here, the agency previously notified the protester of its elimination and the notice contained the specific reasons why the agency rejected the proposal. See Anthony Hernandez--Recon., supra. GBF further argues that even if its protest were untimely, our Office should consider it under the significant issue or good cause exceptions to our timeliness rules. 4 C.F.R. Sec. 21.2(c). We see no basis to invoke either exception. The good cause exception is limited to circumstances where some compelling reason beyond the control of the protester prevents the protester from submitting a timely protest. Commercial Energies, Inc., B-242261.2, Mar. 21, 1991, 91-1 CPD Paras. 312. Here, the protester has presented no evidence why it delayed filing its protest for approximately 1 month after it learned the basis of its protest. Additionally, the significant issue exception to our timeliness rules is limited to untimely protests that raise issues of widespread interest to the procurement community and that have not been considered on the merits in a previous decision. DynCorp, 70 Comp.Gen. 38 (1990), 90-2 CPD Paras. 310. GBF's protest of its exclusion from the competitive range does not meet this standard. While we recognize the importance of the matter to the protester, its complaint, particular to this procurement, simply does not present an issue not previously considered or of widespread interest to the procurement community.

Finally, to the extent GBF objects to the award to Fitzco based on that firm's alleged access to "inside or advance" information, GBF is not an interested party to challenge the contract award. Under the bid protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. Secs. 3551-3556 (1988), only an "interested party" may protest a federal procurement. That is, a protester must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. 4 C.F.R. Sec. 21.0(a). A protester is not an interested party where it would not be in line for contract award were its protest to be sustained. ECS Composites, Inc., B-235849.2, Jan. 3, 1990, 90-1 CPD Paras. 7. Since GBF's proposal was eliminated from the competitive range because it did not have a reasonable chance for award (a determination which our Office will not review because it was not timely protested), and there was at least one other proposal besides the awardee's in the competitive range, GBF is not an interested party to challenge the award. See Advanced Health Sys.--Recon., B-246793.2, Feb. 21, 1992, 92-1 CPD Paras. 214.

The request for reconsideration is denied.

The Honorable Sam Nunn United States Senator 75 Spring Street, S.W. Suite 1700 Atlanta, Georgia 30303 Dear Senator Nunn:

We refer to your letter dated October 14, 1992, on behalf of Mike L. Turner of GBF Medical Group/Safety Product Marketing, Inc. (GBF), regarding the rejection of the firm's proposal under request for proposals (RFP) No. DADA15-92-R-0112, issued by the Department of the Army. GBF filed a request for reconsideration of our prior dismissal of its protest as untimely filed.

By decision of today, copy enclosed, we have denied GBF's request for reconsideration.