Matter of: All Star Maintenance, Inc.-- Reconsideration File: B-252555.3 Date: July 20, 1993

B-252555.3: Jul 20, 1993

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PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Dismissal of protest as untimely is affirmed where protest to the General Accounting Office was filed more than 10 working days after the protester knew the basis of its protest. We dismissed All Star's protest as untimely because it was filed more than 10 working days after the protester knew. Or should have known. Since the solicitation was issued as a total small business set-aside. All Star and Phillips submitted technically superior proposals and were determined to be technically equal. All Star was recommended for award because it submitted the lower price of the two technically superior proposals.

Matter of: All Star Maintenance, Inc.-- Reconsideration File: B-252555.3 Date: July 20, 1993

PROCUREMENT Bid Protests GAO procedures Protest timeliness 10-day rule PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration Dismissal of protest as untimely is affirmed where protest to the General Accounting Office was filed more than 10 working days after the protester knew the basis of its protest.

Attorneys

DECISION All Star Maintenance, Inc. requests reconsideration of our dismissal of its protest of the Department of the Army's withdrawal of its notice of intent to award to All Star and the subsequent award of a contract to Phillips National, Inc., under request for proposals (RFP) No. DABT47-92-R-0043, for total family housing maintenance at Fort Jackson, South Carolina. We dismissed All Star's protest as untimely because it was filed more than 10 working days after the protester knew, or should have known, of the basis for its protest.

We affirm our decision.

After evaluation of proposals received in response to the RFP, the Army decided to award to All Star on the basis of initial proposals. Since the solicitation was issued as a total small business set-aside, in accordance with Federal Acquisition Regulation (FAR) Sec. 15.1001(b)(2) the Army provided preaward notice of intent to award the contract to all offerors. The preaward notice included All Star's base year price and total contract price. The agency has advised us that at the time of the initial award decision, All Star and Phillips submitted technically superior proposals and were determined to be technically equal. All Star was recommended for award because it submitted the lower price of the two technically superior proposals.

On March 3, State Management, Inc. protested the proposed award to All Star on the grounds that its technically acceptable proposal was lower priced than All Star's proposal and was thus more advantageous to the government. State Management's protest correspondence discussed both State Management and All Star prices. State Management's protest contained a copy of the agency's preaward notice of award which disclosed All Star's base year and total prices.

In response to the protest, the Army decided to conduct discussions with all competitive range offerors and give them an opportunity to revise their proposals and submit best and final offers (BAFO). By letter dated March 9, State Management withdrew its protest. By letter dated March 10, the Army advised all competitive range offerors of the decision to conduct discussions. Offerors were advised that the comments from the source selection evaluation board (SSEB) evaluations furnished with the BAFO request would be the basis for discussions. Offerors were further advised to review the SSEB comments and if determined appropriate, "provide replacement pages (in original and five copies) for your technical/management and/or price proposals and/or Section B, Price Schedule by 4:00 PM, March 23, 1993." On March 23, the Army received revised proposals. All Star in its proposal did not change its initial proposed price. However, Phillips reduced its price. The Army evaluated the revised proposals and, on May 12, the Army issued a preaward notice of intent to award a contract to Phillips.

All Star filed its protest with our Office on May 19. All Star's protest was based on the following specific grounds:

"1. The Army withdrew its Preaward Notice to All Star without good cause.

"2. The Contracting Officer violated FAR Sec. 15.610(e)(iii) by disclosing All Star's price on February 25 and thereafter permitting competitors to revise and submit new price proposals.

"3. The Contracting Officer violated FAR Sec. 3.104-3(c) by disclosing proprietary and source selection information to competitors when he disclosed All Star's prices to State Management and Phillips.

"4. The Contracting Officer engaged in technical leveling in violation of FAR Sec. 15.610(d) when he requested and obtained changes to competitors' proposals to achieve parity with All Star's previously identified technical superiority.

"5. The Head of the Contracting Activity (HCA) or his or her designee failed to effectuate an administrative or contractual remedy commensurate with the severity and effect of the Contracting Officer's violation as required by FAR Sec. 3.104-3(e)."

We dismissed All Star's protest as untimely because we viewed the protest grounds as a challenge to the agency's action--the conduct of discussions and request for BAFOs--taken in response to State Management's protest. The Army had notified All Star by letter dated March 10 that it intended to conduct discussions with all competitive range offerors and that BAFOs were to be submitted by March 23. All Star also knew, from the copy of State Management's protest letter which it received in early March from the Army, that its price under the initial award had been disclosed to unsuccessful offerors by the agency. Instead of then protesting the agency's action as adverse to the firm, All Star participated in the competition and protested only after it learned that it had lost the competition. We thus concluded that All Star's protest, challenging the action 2 months after the action was initiated, was untimely. See Tero Tek Int'l, Inc., B-242743.3, Oct. 3, 1991, 91-2 CPD Para. 288.

In its request for reconsideration, All Star asserts that some of its protest grounds are timely and objects to our combining them together and treating them as an untimely objection to the agency's action taken in response to State Management's protest.

For example, all Star contends that its protest basis concerning technical leveling was a protest against the content of the discussions and not the fact that discussions were initiated by the BAFO request. All Star maintains that it was not aware of the technical leveling that took place during discussions until after the notice of award of the contract to Phillips and that it filed its protest within 10 working days of the notice of award.

All Star asserted in its protest that the contracting officer engaged in technical leveling when he requested and obtained changes to competitors' proposals to achieve parity with All Star's proposals. All Star never identified any specific basis for this assertion; since the notice of award to Phillips merely placed All Star on notice that Phillips, in its BAFO, reduced its price below All Star's offer, we read and continue to read the protest ground as simply an objection to the BAFO request on the basis that the request per se would result in alleged technical leveling.[1] We still have no information from the protester to suggest that this protest ground was anything other than a protest of the BAFO request.

All Star further maintains that it did not know or could not have known until the notice of the award to Phillips that the HCA would not provide an appropriate remedy to All Star for the agency's price disclosure prior to the BAFO request. We do not understand why the HCA, unless All Star had objected to the price disclosure, would be on notice of this alleged procurement impropriety and therefore expected to remedy it. Further, All Star knew when it received the BAFO request that its price had been disclosed and that the BAFO request did not limit the offerors' ability to revise their proposals. Accordingly, we do not believe that All Star reasonably could wait until after award to object to the agency's failure to provide a remedy for the price disclosure or to protest the potential auction.

The dismissal is affirmed.

1. Technical leveling involves helping an offeror bring its proposal up to the level of other proposals through successive rounds of discussion, such as by pointing out technical weaknesses resulting from the offeror's lack of diligence, competence or inventiveness in preparing the proposal. Federal Acquisition Regulation Sec. 15.610(d); Matrix Int'l Logistics, Inc., B-249285.2, Dec. 30, 1992, 92-2 CPD Para. 452. The agency advises, however, that the only change in offeror standing after BAFOs was in price --Phillips reduced its price below All-Star's price. No change in technical standing occurred--both All Star and Phillips remained the highest ranked firms technically after BAFOs.