Matter of: Space Vector Corporation File: B-278354 Date: November 17, 1997

B-278354: Nov 17, 1997

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The protester basically argues that the decision to award the contract to OSC at a significantly higher cost was unreasonable. (2) the Air Force's technical evaluation of the margin of safety was flawed. (3) The Air Force's discussions were inadequate. The protester states that in this conversation the Space Vector Director orally requested a debriefing and was informed that a debriefing would be scheduled. The protester further states that this information was confirmed by the contracting officer in a subsequent conversation. The debriefing was scheduled for. State that: Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier).

Matter of: Space Vector Corporation File: B-278354 Date: November 17, 1997

DECISION

Space Vector Corporation protests the Department of the Air Force's award of a contract for orbital and sub-orbital launch systems and launch services to Orbital Sciences Corporation (OSC) under request for proposals No. F296O1-97-R-0015. The protester basically argues that the decision to award the contract to OSC at a significantly higher cost was unreasonable.

We dismiss the protest as untimely.

On October 9, 1997, Space Vector filed its protest raising the following issues: (1) the Air Force improperly eliminated Space Vector from consideration for award based on an unstated mandatory requirement with respect to margin of safety under the launch vehicle factor; (2) the Air Force's technical evaluation of the margin of safety was flawed; (3) The Air Force's discussions were inadequate, unequa1 and not meaningful because the Air Force did not discuss its safety concerns with Space Vector; (4)the Air Force violated law and regulation by awarding without considering cost (5) the Air Force failed to properly perform its best value decision

The Air Force made its award decision on September 5, 1997. On that date, the source selection authority (SSA) informed Space Vector's Director of Program Management of the award decision. The protester states that in this conversation the Space Vector Director orally requested a debriefing and was informed that a debriefing would be scheduled. The protester further states that this information was confirmed by the contracting officer in a subsequent conversation. The contracting officer states that the Space Vector Director told her that he would submit a written request for a debriefing. /1/ In any event, the record shows that the Air Force received a written request for a debriefing on September 11, more than 3 days after Space Vector received its written notice of award on September 5. The debriefing was scheduled for, and conducted on, September 29. The record further shows that on September 19, the Air Force sent Space Vector a redacted version of the briefing charts presented to the SSA and a redacted version of the source selection document. Space Vector received this package on September 22.

Our Bid Protest Regulations, at 4 C.F.R. Sec. 21.2(a)(2) (1997), state that:

Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and when requested is required. In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held. (Emphasis added.)

The Air Force argues that the protester did not timely file a written request for a debriefing as contemplated by statute and regulation, and therefore the exception to the 10-day period for filing a protest where a statutory debriefing occurs, as contained in 4 C.F.R Sec. 21.2(a)(2), is not applicable here. The Air Force requests dismissal of Space Vector's protest as untimely under 4 C.F.R. 21.2(a)(2) because Space Vector filed its protest on October 9, more than l0 days after it knew, or should have known, the basis for its protest.

As expressly stated in our Regulations, the extension of the 10-day period for filing protests challenging a negotiated procurement applies only where "a debriefing is requested and, when requested, is required." Under Federal Acquisition Regulation (FAR) Sec. 15.1004, which implements 10 U.S.C. Sec. 2305(a)(5)(A) (1994), a "required debriefing" is one resulting from written debriefing request "received by the agency within three days after the date on which that offeror has received notice of contract award." If such a request is timely received by the agency, the offeror must then be debriefed and furnished the basis for the selection decision within 5 days of the agency's receipt of the request, if practicable.

In order to encourage early and meaningful debriefings and to preclude strategic or defensive protests-i.e., protests filed before actual knowledge that a basis for protest exists or in anticipation of improper actions by the contracting agency, our Office will not consider a protest challenging a procurement conducted on the basis of competitive proposals where a debriefing is "requested and required," if the protest is filed before the debriefing date offered to the protester-even where the protest basis was known before the debriefing. The Real Estate Center, B-274081, Aug. 20, 1996, 96-2 CPD para. 74 at 2. Under those circumstances, the protest instead should be filed not later than 10 days after the date on which the debriefing is held. Id. Offerors thus preserve the right to raise a protest issue, the basis of which they may have known prior to the debriefing, without disrupting the procurement or unduly delaying the bid protest process in our Office.

Here, Space Vector did not submit its written request for a debriefing within the 3-day period provided by statute and regulation. Under these circumstances, the subsequent debriefing was not a "required debriefing" under the FAR and did not trigger an extension of the 10-day timeliness rule under 4 C.F.R. Sec. 21.2(a)(2). See Minotaur Eng'g, B-276843, May 22, 1997, 97-1 CPD Para. 194 at 3-4. Accordingly, if the protest issues in Space Vector's protest of October 9, 1997, were known or should have been known from the Air Force documents which Space Vector received on September 22, its protest of October 9 is untimely.

Based on our review of the protest and the documents received by Space Vector on September 22, we conclude Space Vector's protest is untimely. For example, the source selection decision and briefing slides show that, based on the technical evaluation as reflected in the slides, the SSA decided that Space Vector's approach posed an "unacceptably high risk" due to Space Vector's "near zero margin of safety." The SSA explains that OSC's proposal was technically superior. He states that, based on the high risk of Space Vector's approach under the launch vehicle factor, he decided not to award to Space Vector and determined that OSC's proposal offered the best value, notwithstanding Space Vector's significantly lower cost. The record shows that on September 22 Space Vector had all the information necessary to file its protest that it ultimately filed after the debriefing. We conclude that Space Vector's protest bases--that the agency had used an unstated criteria for misevaluated Space Vector's approach in connection with the margin of safety under the launch vehicle factor; that the agency's discussions were inadequate or otherwise flawed concerning the margin of safety issue; and that the SSA's best value determination was unreasonable and failed to properly consider cost are matters--were clearly discernible from the documents provided on September 22. Therefore, Space Vector's protest filed on October 9, more than 10 days after it knew, or should have known, its grounds of protest, is untimely. 4 C.F.R. Sec. 21.2(a)(2).

The protest is dismissed.

Comptroller General of the United States

1. The notice of award dated September 5, 1997, also stated that a debriefing would be scheduled "at a later date."