B-190705, APR 10, 1978

B-190705, APR 10, 1978

1. PROTEST AGAINST ALLEGED UNDULY RESTRICTIVE REQUIREMENT IN SOLICITATION (MANUFACTURER'S DIRECTION AND CERTIFICATION OF PERFORMANCE) NOT FILED PRIOR TO CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS IS UNTIMELY. 2. REJECTION OF OFFER OF PROPOSER WHICH ADMITTEDLY COULD NOT COMPLY WITH REQUIREMENT FOR MANUFACTURER'S DIRECTION AND CERTIFICATION OF PERFORMANCE AND AWARD TO MANUFACTURER OF EQUIPMENT TO BE SERVICED WAS PROPER.

MET ELECTRICAL TESTING COMPANY, INC.:

REQUEST FOR PROPOSALS (RFP) NO. DAAD05-77-R-0035 WAS ISSUED ON AUGUST 25, 1977, ON A SOLE-SOURCE BASIS TO GENERAL ELECTRIC (GE) BY THE DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND (APG), FOR MANUFACTURER'S MAINTENANCE AND REPAIR OF ELECTRICAL SUBSTATION EQUIPMENT LOCATED AT APG. THE ORIGINAL CLOSING DATE FOR RECEIPT OF PROPOSALS WAS SEPTEMBER 9, 1977, ALTHOUGH THE DATE WAS LATER EXTENDED TO SEPTEMBER 16, 1977.

MET ELECTRICAL TESTING COMPANY, INC. (MET), LEARNED OF THE INTENDED SOLE- SOURCE AWARD AND OBTAINED A COPY OF THE RFP AND SUBMITTED A PROPOSAL. MET HAS PROTESTED THE REJECTION OF ITS OFFER AND THE AWARD OF A CONTRACT PURSUANT TO THE RFP TO GE. ESSENTIALLY, THE BASIS OF MET'S PROTEST, FILED WITH OUR OFFICE ON NOVEMBER 17, 1977, IS THAT APG INCORRECTLY DETERMINED THAT THE ONLY APPROPRIATE METHOD FOR THE PROCUREMENT OF MAINTENANCE AND REPAIR SERVICES WAS ON A SOLE-SOURCE BASIS. MET ARGUES THAT THE REQUIREMENTS IMPOSED ON IT WERE UNDULY RESTRICTIVE AND WERE NOT CONTAINED IN THE ORIGINAL RFP.

THE REQUIREMENTS REFERRED TO WERE EXPRESSED IN THE CONTRACTING OFFICER'S SEPTEMBER 8, 1977, LETTER TO MET, WHICH ENCLOSED A COPY OF THE RFP IN QUESTION. THE LETTER READ, IN PERTINENT PART:

"IF THE SERVICES WERE PERFORMED BY OTHER THAN THE MANUFACTURER, THEN ALL MAINTENANCE WOULD BE ACCOMPLISHED UNDER THE ON-SITE DIRECT TECHNICAL DIRECTION OF THE MANUFACTURER'S FIELD SERVICE ENGINEER WHO WOULD THEN CERTIFY THAT ALL TESTS AND/OR MAINTENANCE TASKS, ADJUSTMENTS AND REPAIRS HAVE BEEN PROPERLY ACCOMPLISHED IN ACCORDANCE WITH MANUFACTURER'S SPECIFICATIONS AND RECOMMENDATIONS ON EACH PIECE OF EQUIPMENT SET FORTH IN THE SPECIFICATIONS."

OUR BID PROTEST PROCEDURES, 4 C.F.R. SEC. 20.2 (B)(1) (1977), PROVIDE THAT PROTESTS BASED ON ALLEGED SOLICITATION IMPROPRIETIES APPARENT PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS MUST BE FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF INITIAL PROPOSALS. SINCE THE ALLEGED UNDULY RESTRICTIVE REQUIREMENT WAS APPARENT PRIOR TO THE CLOSING DATE (SEPTEMBER 16), THIS ASPECT OF THE PROTEST MUST HAVE BEEN FILED BEFORE THAT DATE IN ORDER TO BE TIMELY. ACCORDINGLY, THIS ASPECT OF THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.

SINCE MET ADMITTEDLY COULD NOT COMPLY WITH THIS REQUIREMENT, ITS PROPOSAL WAS PROPERLY REJECTED AND AWARD MADE TO THE MANUFACTURER OF THE EQUIPMENT TO BE SERVICED. THEREFORE, THIS ASPECT OF MET'S PROTEST IS DENIED.