Matter of: Stewart-Warner Electronics Corp. File: B-258506 Date: October 11, 1994

B-258506: Oct 11, 1994

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We dismiss the protest as untimely because it challenges an alleged impropriety in the solicitation that should have been protested before the closing date for submission of initial proposals. Initial proposals were received by the agency on April 28. Award was made to Harris on September 9. While conceding that the agency's intent as set forth in the RFP to make award without discussions "may originally have been a suitable approach prior to Amendment No. 0006. " the protester argues because amendment No. 0006 "drastically alter[ed] the procurement with [regard to] the technical specification . . . the only way the Navy could reasonably have come to a clear and complete understanding of the relative benefits and risks of the alternatives would have been to discuss with the two offerors the actual capabilities of their respective designs".

Matter of: Stewart-Warner Electronics Corp. File: B-258506 Date: October 11, 1994

DECISION

Stewart-Warner Electronics Corporation protests the award of a contract to Harris Corporation under request for proposals (RFP) No. N00140-93-R-0133, issued by the Department of the Navy for electromagnetic interference filter kits. Stewart-Warner argues that the agency improperly made award upon initial proposals without conducting discussions.

We dismiss the protest as untimely because it challenges an alleged impropriety in the solicitation that should have been protested before the closing date for submission of initial proposals.

The RFP, issued on October 19, 1993, incorporated Federal Acquisition Regulation (FAR) Sec. 52.215-16, Alternate III, which states that the government intends to award a contract without discussions and encourages offerors to submit their best offers in their initial proposals. This clause also reserves the agency's right to conduct discussions if later determined to be necessary. The agency issued amendment No. 0006 to the RFP on March 31, 1994, which changed the delivery time of first article units from 90 days to 180 days after award, and altered certain of the RFP's technical requirements. Initial proposals were received by the agency on April 28, 1994, and award was made to Harris on September 9.

Stewart-Warner protests that the agency acted unreasonably in awarding a contract to Harris without conducting discussions and affording offerors the opportunity to submit best and final offers. While conceding that the agency's intent as set forth in the RFP to make award without discussions "may originally have been a suitable approach prior to Amendment No. 0006," the protester argues because amendment No. 0006 "drastically alter[ed] the procurement with [regard to] the technical specification . . . the only way the Navy could reasonably have come to a clear and complete understanding of the relative benefits and risks of the alternatives would have been to discuss with the two offerors the actual capabilities of their respective designs".

Stewart-Warner's protest, filed with our Office on September 16--nearly 5 months after the closing date for receipt of initial proposals and after the contract has been awarded--is untimely, in view of the express advice in the solicitation that the agency intended to make award without discussions. Our Office will examine the reasonableness of an agency's decision to make award without discussions in light of the information before the source selection official at the time he makes his decision. Norden Sys., Inc., B-255343.3, Apr. 14, 1994, 94-1 CPD Para. 257; see The Jonathan Corp.; Metro Mach. Corp., B-251698.3; B-251698.4, May 17, 1993, 93-2 Para. 174. Here, however, because Stewart-Warner is arguing that the provision for award without discussions was inappropriate for this solicitation because of the alternation of its terms by amendment No. 0006, the protest concerns an alleged impropriety that was apparent from the face of the solicitation which should have been protested prior to the set for receipt of initial proposals. Norden Sys., Corp., supra. Our Bid Protest Regulations contain strict rules requiring the timely submission of protests, and include a timeliness requirement for protests based upon alleged solicitation improprieties to serve an important purpose--to enable the contracting agency or our Office to decide an issue while it is most practicable to take effective action where the circumstances warrant. GM Plastics, Inc., B-235083, Apr. 24, 1989, 89-1 CPD Para. 405. A protest of an alleged defect in a solicitation filed after the closing date, and in this case, after the contract has been awarded, defeats this purpose.

The protest is dismissed.