B-181380, MAR 12, 1975

B-181380, MAR 12, 1975

1. PROTEST AGAINST RESOLICITATION OF PROCUREMENT FILED NEARLY 4 MONTHS AFTER DATE FOR OPENING OF BIDS IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974) AND WILL NOT BE CONSIDERED. 2. UNTIMELY PROTEST AGAINST RESOLICITATION OF ORIGINAL SOLICITATION DOES NOT PRESENT SIGNIFICANT ISSUE THAT IS FOR CONSIDERATION UNDER EXCEPTION IN 4 C.F.R. SEC. 20.2(B) (1974), SINCE THERE ARE PROCUREMENT REGULATIONS AND ABUNDANCE OF COMPTROLLER GENERAL DECISIONS SETTING FORTH PRINCIPLES CONTROLLING CANCELLATION OF ORIGINAL SOLICITATIONS. 3. ALLEGATION THAT LOW BIDDER IS NONRESPONSIBLE BECAUSE OF INADEQUATE PAST PERFORMANCE WILL NOT BE CONSIDERED SINCE PRACTICE OF REVIEWING BID PROTESTS INVOLVING CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY HAS BEEN DISCONTINUED ABSENT SHOWING OF FRAUD.

EASTERN MICROWAVE CORPORATION:

EASTERN MICROWAVE CORPORATION (EASTERN) HAS PROTESTED AGAINST AN AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER SOLICITATION N00019-75-B 0003, ISSUED BY THE NAVAL AIR SYSTEMS COMMAND.

ESSENTIALLY, THE BASIS OF THE PROTEST IS THAT THE LOW BIDDER UNDER THE PRIOR SOLICITATION (N00019-74-B-0019), WHICH WAS CANCELED, WAS NOT RESPONSIBLE AND THAT THE AWARD SHOULD HAVE BEEN MADE TO EASTERN AS THE NEXT LOW BIDDER AND THEREFORE SHOULD BE MADE TO EASTERN UNDER SOLICITATION -0003 NOTWITHSTANDING IT IS NOT THE LOW BIDDER UNDER THE LATTER SOLICITATION. ALTHOUGH EASTERN CONTENDS THAT THE AWARD SHOULD BE MADE TO IT UNDER SOLICITATION -0003, IT IS, IN EFFECT, PROTESTING THE RESOLICITATION OF THE ORIGINAL SOLICITATION.

SOLICITATION N00019-74-B-0019 WAS CANCELED ON AUGUST 7, 1974, AND THE RESOLICITATION ISSUED ON OCTOBER 11, 1974, PROVIDED FOR THE OPENING OF BIDS ON OCTOBER 24, 1974. EASTERN FILED ITS PROTEST WITH OUR OFFICE ON FEBRUARY 18, 1975.

OUR BID PROTEST PROCEDURES AND STANDARDS IN 4 C.F.R. SEC. 20.2(A) (1974) STATE:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. ***"

FURTHER, IN MATTER OF NYTEK ELECTRONICS, B-182971, FEBRUARY 6, 1975, IT WAS HELD THAT A PROTEST AGAINST RESOLICITATION OF A PROCUREMENT FILED NEARLY 4 MONTHS AFTER THE CLOSING DATE FOR RECEIPT OF OFFERS UNDER THE RESOLICITATION IS UNTIMELY UNDER THE BID PROTEST PROCEDURES AND STANDARDS AND IS NOT FOR CONSIDERATION.

EASTERN HAS STATED THAT NOTWITHSTANDING THE UNTIMELINESS OF THE PROTEST, THE FOREGOING PROCEDURES SHOULD BE WAIVED IN THIS CASE. 4 C.F.R. SEC. 20.2(B) PROVIDES THAT UNTIMELY PROTESTS MAY BE CONSIDERED IF "GOOD CAUSE" IS SHOWN OR IF OUR OFFICE DETERMINES THAT "ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES" ARE INVOLVED. THE FORMER EXCEPTION HAS REFERENCE TO SOME COMPELLING REASON BEYOND THE PROTESTER'S CONTROL WHICH PREVENTED IT FROM FILING A TIMELY PROTEST. THE LATTER REFERS TO THE PRESENCE OF A PROCUREMENT PRINCIPLE OF WIDESPREAD INTEREST. 52 COMP. GEN. 20 (1972).

WE DO NOT FIND ANY COMPELLING REASON WHICH PREVENTED EASTERN FROM FILING A TIMELY PROTEST. MOREOVER, BECAUSE THERE ARE PROCUREMENT REGULATIONS AND AN ABUNDANCE OF COMPTROLLER GENERAL DECISIONS SETTING FORTH PRINCIPLES CONTROLLING THE CANCELLATION OF ORIGINAL SOLICITATIONS, THE ISSUE OF WHETHER A PARTICULAR SOLICITATION SHOULD BE CANCELED AND RESOLICITED DOES NOT GIVE RISE, IN OUR OPINION, TO THE REQUIRED LEVEL OF WIDESPREAD PROCUREMENT INTEREST AND IS NOT SIGNIFICANT.

FURTHER, EASTERN HAS PROTESTED THAT THE LOW BIDDER UNDER SOLICITATION - 0003 IS NONRESPONSIBLE BECAUSE OF ALLEGED INADEQUATE PRIOR CONTRACT PERFORMANCE.

OUR OFFICE HAS DISCONTINUED THE PRACTICE OF REVIEWING BID PROTESTS INVOLVING A CONTRACTING OFFICER'S AFFIRMATIVE DETERMINATION OF RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR. THE DETERMINATION OF RESPONSIBILITY IS LARGELY WITHIN THE DISCRETION OF THE PROCUREMENT OFFICIALS WHO MUST BEAR ANY DIFFICULTIES EXPERIENCED BY REASON OF A CONTRACTOR'S NONRESPONSIBILITY. IF THE CONTRACTING OFFICER FINDS THE LOW BIDDER RESPONSIBLE, WE DO NOT BELIEVE THE FINDING SHOULD BE DISTURBED ABSENT A SHOWING OF FRAUD. MATTER OF EASTERN HOME BUILDERS AND DEVELOPERS, INC., B-182218, NOVEMBER 29, 1974.

ACCORDINGLY, THE PROTEST IS NOT FOR CONSIDERATION BY OUR OFFICE.