B-200179, OCT 9, 1980

B-200179: Oct 9, 1980

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DIGEST: PROTEST BY REJECTED OFFEROR CHALLENGING AGENCY'S DETERMINATION THAT ITS PROPOSAL CONTAINED WEAKNESSES AND AGAINST AGENCY'S AWARD OF CONTRACT TO OFFEROR WHO PROTESTER ALLEGES SUBMITTED UNACCEPTABLE PROPOSAL IS UNTIMELY AS PROTESTER FILED PROTEST MORE THAN 10 DAYS AFTER DEBRIEFING WHERE IT LEARNED BASES OF PROTEST. FACT THAT PROTESTER CONTINUED TO HAVE DEBRIEFINGS WITH AGENCY AFTER LEARNING BASES OF PROTEST DOES NOT CHANGE THIS CONCLUSION. INTERIOR CONTENDS THAT DAVID'S PROTEST IS UNTIMELY UNDER OUR BID PROTEST PROCEDURES. ON JULY 16 DAVID WAS SENT A WRITTEN DEBRIEFING RATIONALE FROM NPS EXPLAINING THE SPECIFIC WEAKNESSES OF ITS PROPOSAL AND A COPY OF THE SUCCESSFUL PROPOSAL. A MEETING CLARIFYING THE PRIOR TWO DEBRIEFINGS WAS HELD ON AUGUST 19.

B-200179, OCT 9, 1980

DIGEST: PROTEST BY REJECTED OFFEROR CHALLENGING AGENCY'S DETERMINATION THAT ITS PROPOSAL CONTAINED WEAKNESSES AND AGAINST AGENCY'S AWARD OF CONTRACT TO OFFEROR WHO PROTESTER ALLEGES SUBMITTED UNACCEPTABLE PROPOSAL IS UNTIMELY AS PROTESTER FILED PROTEST MORE THAN 10 DAYS AFTER DEBRIEFING WHERE IT LEARNED BASES OF PROTEST. FACT THAT PROTESTER CONTINUED TO HAVE DEBRIEFINGS WITH AGENCY AFTER LEARNING BASES OF PROTEST DOES NOT CHANGE THIS CONCLUSION.

DAVID PEELER PRODUCTIONS:

DAVID PEELER PRODUCTIONS (DAVID) PROTESTS THE DECISION BY THE NATIONAL PARK SERVICE (NPS), DEPARTMENT OF THE INTERIOR (INTERIOR), TO REJECT ITS PROPOSAL RESPONDING TO REQUEST FOR PROPOSALS (RFP) NO. CX 1100-INV-214, AND PROTESTS THAT THE ACCEPTED PROPOSAL DOES NOT CONFORM TO KEY PROVISIONS OF THE RFP. INTERIOR CONTENDS THAT DAVID'S PROTEST IS UNTIMELY UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980). WE AGREE.

NPS AWARDED THE CONTRACT ON JUNE 20, 1980. SUBSEQUENTLY, DAVID REQUESTED AND ULTIMATELY RECEIVED A DEBRIEFING CONFERENCE ON JULY 11, 1980. ON JULY 16 DAVID WAS SENT A WRITTEN DEBRIEFING RATIONALE FROM NPS EXPLAINING THE SPECIFIC WEAKNESSES OF ITS PROPOSAL AND A COPY OF THE SUCCESSFUL PROPOSAL. DAVID THEN HAD A SECOND DEBRIEFING WITH NPS ON JULY 25. FINALLY, A MEETING CLARIFYING THE PRIOR TWO DEBRIEFINGS WAS HELD ON AUGUST 19, BETWEEN DAVID AND NPS. FAILING TO RECEIVE SATISFACTION FROM THESE MEETINGS, DAVID FILED A PROTEST WITH OUR OFFICE ON SEPTEMBER 3, 1980.

OUR BID PROTEST PROCEDURES PROVIDE IN PERTINENT PART:

"*** BID PROTESTS SHALL BE FILED NOT LATER THAN 10 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER." 4 C.F.R. SEC. 20.2(B)(2) (1980).

DAVID'S FIRST CONTENTION CONCERNS THE PROPRIETY OF NPS'S CONCLUSION THAT ITS PROPOSAL CONTAINED FOUR AREAS OF WEAKNESS. APPARENTLY, DAVID FIRST LEARNED OF THE ALLEGED WEAKNESSES IN A DEBRIEFING HELD ON JULY 11, 1980. HOWEVER, EVEN IF THIS FIRST DEBRIEFING DID NOT GIVE DAVID SUFFICIENT KNOWLEDGE OF THESE ALLEGED WEAKNESSES TO FILE A PROTEST WITH OUR OFFICE, THE RECEIPT BY DAVID OF THE JULY 16 WRITTEN DEBRIEFING RATIONALE LISTING FOUR AREAS OF WEAKNESS, MOST CERTAINLY MADE KNOWN OR SHOULD HAVE MADE KNOWN TO DAVID THIS BASIS FOR ITS PROTEST. SINCE DAVID DID NOT FILE ITS PROTEST WITH OUR OFFICE UNTIL SEPTEMBER 3, THIS PART OF THE PROTEST IS UNTIMELY.

DAVID'S SECOND CONTENTION INVOLVES THE ALLEGATION THAT THE ACCEPTED PROPOSAL DOES NOT CONFORM TO KEY PROVISIONS OF THE RFP. DAVID BECAME AWARE OF THIS BASIS FOR PROTEST UPON RECEIPT OF THE ACCEPTED PROPOSAL WHICH WAS SENT TO IT ON JULY 16. SINCE DAVID EXPEDIENTLY REQUESTED AND RECEIVED A SUBSEQUENT DEBRIEFING ON JULY 25, THE RUNNING OF THE 10 WORKING -DAY PERIOD PRESCRIBED IN OUR BID PROTEST PROCEDURES DID NOT COMMENCE TO RUN UNTIL JULY 25, THE DAY OF THE DEBRIEFING, RATHER THAN THE DAY OF RECEIPT OF THE ACCEPTED PROPOSAL. LAMBDA CORPORATION, 54 COMP.GEN. 468 (1974), 74-2 CPD 312. NEVERTHELESS, BECAUSE DAVID DID NOT FILE ITS PROTEST WITH OUR OFFICE UNTIL SEPTEMBER 3, THIS PORTION OF THE PROTEST IS ALSO DISMISSED AS UNTIMELY.

MOREOVER, THE FACT THAT DAVID CONTINUED TO PURSUE RESOLUTION OF ITS PROTEST DIRECTLY WITH NPS BY HAVING A MEETING WITH NPS ON AUGUST 19, DOES NOT CHANGE OUR DETERMINATION. THE PERIOD FOR FILING, AS PRESCRIBED IN OUR BID PROTEST PROCEDURES IS NOT TOLLED BY PROTESTERS CONTINUING TO HAVE DEBRIEFINGS WITH AGENCIES TO CLARIFY OLD AND TO OBTAIN ADDITIONAL INFORMATION, AFTER THEY RECEIVE KNOWLEDGE OF THE BASIS OF PROTEST. CF. ADVANCE MARINE ENTERPRISES, INC., B-196252.2, FEBRUARY 7, 1980, 80-1 CPD 106.

ACCORDINGLY, THE PROTEST IS DISMISSED.