Protest Contending That Procurement Should Have Been Set Aside

B-200339: May 29, 1981

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An Indian-owned firm protested certain matters regarding a request for proposals (RFP) issued by the Bureau of Indian Affairs (BIA) for abstracting, examining, and curing titles to land administered by BIA. The firm protested that: (1) the procurement should have been set aside for Indian-owned firms under the Buy Indian Act; (2) the solicitation included a number of terms associated with formally advertised procurements which created confusion as to what set of rules applied for competitive purposes; (3) the RFP evaluation criteria included matters which should have been properly reserved for consideration in determining whether the successful offeror was a responsible firm; (4) offerors were not afforded adequate time to prepare their proposals; and (5) price proposals received in response to the RFP improperly were read aloud in the presence of all the offerors. The Buy Indian Act permits negotiation of contracts exclusively with Indian firms for Indian products at the discretion of the Secretary of the Interior. GAO will not review a decision by the Secretary not to limit a procurement to Indian firms in the absence of a clear showing of abuse of that discretion. Thus, the portion of the protest pertaining to Indian set-asides was not considered. The protests concerning the use of terms reserved for formally advertised procurements and the solicitation's evaluation criteria were protests of alleged defects in the solicitation. Since these were apparent on the face of the solicitation, they should have been protested before the date set for receipt of initial proposals. These protests were untimely filed, and the merits of the issues were not considered. GAO found that the firm was not prejudiced by the contracting officer's improper disclosure of the offerors' prices since the firm's offer was technically unacceptable. Thus, the firm had no chance for the award. Accordingly, the protest was dismissed in part and denied in part.