B-183347, JUL 3, 1975

B-183347, JUL 3, 1975

PROTEST THAT SPECIFICATION IS DEFECTIVE IS UNTIMELY UNDER BID PROTEST PROCEDURES (4 C.F.R. SEC. 20.2 (1974)) SINCE IT WAS NOT FILED UNTIL AFTER BID OPENING. ALTHOUGH PROTESTER QUESTIONED PROPRIETY OF SPECIFICATIONS IN A TELEPHONE CALL TO AGENCY BEFORE BID OPENING, SUCH ACTION DOES NOT JUSTIFY FILING AFTER BID OPENING SINCE PROTESTER WAS ADVISED, IN EFFECT, THAT AGENCY REGARDED SPECIFICATIONS TO BE ADEQUATE AND THAT IT DID NOT INTEND TO TAKE FURTHER ACTION IN THE MATTER.

CHU ASSOCIATES, INCORPORATED:

CHU ASSOCIATES, INC., HAS PROTESTED AGAINST AWARD OF A CONTRACT UNDER INVITATION FOR BIDS N0030-75-B-0112 ISSUED BY THE NAVAL ELECTRONIC SYSTEMS COMMAND ON JANUARY 15, 1975. BASICALLY, CHU CONTENDS THAT THE SPECIFICATIONS WERE AMBIGUOUS AND THEREFORE A COMMON BASIS FOR BIDDING WAS PRECLUDED.

THE RECORD SHOWS THAT PRIOR TO BID OPENING CHU POINTED OUT ITS DIFFICULTIES WITH THE SPECIFICATIONS IN A TELEPHONE CALL TO THE NAVY. CHU CONTENDS IT WAS ASSURED A SOLICITATION MODIFICATION WOULD BE FORTHCOMING TO CLARIFY THE MATTER. HOWEVER, THE NAVY HAS ADVISED THIS OFFICE IN A LETTER DATED MAY 28, 1975, THAT IT:

"*** INFORMED CHU THAT THE INSTANT SPECIFICATION REQUIREMENTS WERE IN FACT DIFFERENT IN SOME AREAS FROM SPECIFICATIONS PREVIOUSLY EMPLOYED. FURTHER, CHU WAS NOTIFIED THAT IT SHOULD NOT CONCERN ITSELF WITH ANY SPECIFICATIONS OTHER THAN THOSE SET OUT IN THE INSTANT SOLICITATION. CHU WAS THEN INFORMED THAT SHOULD THERE BE ANY PROBLEMS WITH THE SPECIFICATIONS SET OUT IN THIS SOLICITATION THAT CHU SHOULD INFORM THIS COMMAND IMMEDIATELY. NO FURTHER INQUIRIES WERE RECEIVED AT THIS COMMAND FROM CHU ASSOCIATES UNTIL AFTER BID OPENING."

ON THE DAY AFTER BID OPENING, CHU PROTESTED TO THE NAVY AND THIS OFFICE.

SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (SECTION 20.2(A) OF TITLE 4 OF THE CODE FEDERAL REGULATIONS) STATES IN PERTINENT PART:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING *** SHALL BE FILED PRIOR TO BID OPENING ***. *** IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY

INSOFAR AS CHU'S ORAL DISCUSSION WITH THE NAVY MAY HAVE BEEN INTENDED AS A PROTEST, THE RECORD SHOWS THAT THE NAVY ORALLY SUGGESTED A PROBABLE REASON FOR CHU'S CONFUSION AND THAT IF THE PROBLEM PERSISTED CHU SHOULD IMMEDIATELY ADVISE THE NAVY. THEREFORE, IT SHOULD HAVE BEEN CLEAR TO CHU THAT THE NAVY DID NOT INTEND TO TAKE ANY FURTHER ACTION REGARDING CHU'S INQUIRY. UNDER THE ABOVE-CITED PROTEST PROCEDURES CHU MAY NOT NOW, AFTER BID OPENING, INSTITUTE A PROTEST WITH EITHER THIS OFFICE OR THE NAVY. IS CLEAR THAT OUR PROTEST PROCEDURES CONTEMPLATE THAT THE REQUEST FOR RESOLUTION OF SPECIFICATION PROBLEMS MAY NOT BE DELAYED UNTIL AFTER BID OPENING AND EXPOSURE OF BID PRICES.

ACCORDINGLY, THE PROTEST IS DISMISSED AS UNTIMELY FILED.