B-198598, SEP 16, 1980

B-198598, SEP 16, 1980

DIGEST: 1. WHERE SOLICITATION ISSUED TO DETERMINE WHETHER TO CONTINUE IN HOUSE PERFORMANCE OR CONTRACT OUT PROVIDED BIDDERS WOULD HAVE "AT LEAST" 15 DAYS TO PROTEST GOVERNMENT IN-HOUSE COST ESTIMATE, PROTEST TO AGENCY MORE THAN 15 DAYS AFTER RECEIVING COST ESTIMATE IS NOT UNTIMELY BECAUSE OF INDEFINITENESS OF STATEMENT OF MORATORIUM PERIOD. IF WORDS "AT LEAST" ARE DELETED, 15-DAY MORATORIUM PERIOD WOULD APPLY FOR FILING PROTEST RATHER THAN SHORTER 10-DAY PERIOD PRESCRIBED BY GAO BID PROTEST PROCEDURES. 2. WHERE PROTEST TO ARMY AGAINST ANALYSIS OF CONVERSION COSTS, WHICH SHOWED IT WOULD BE LESS COSTLY TO PERFORM SERVICES IN-HOUSE THAN TO CONTRACT OUT FOR SERVICES, IS DENIED BY CONTRACTING OFFICER, PROTEST OF CANCELLATION OF IFB FILED IN GAO MORE THAN 10 WORKING DAYS AFTER SUCH DENIAL IS UNTIMELY.

CAREER CONSULTANTS, INC.:

CAREER CONSULTANTS, INC. (CCI), PROTESTS THE CANCELLATION BY THE DEPARTMENT OF THE ARMY (ARMY) OF INVITATION FOR BIDS (IFB) NO. DAEA18 79-B -0095 FOR GUARD SERVICES AT FORT HUACHUCA, ARIZONA.

THE ARMY CANCELED THE IFB BECAUSE IT DETERMINED THAT IT WOULD COST LESS TO CONTINUE TO HAVE THE SERVICES PERFORMED IN-HOUSE THAN TO CONTRACT WITH THE PRIVATE SECTOR. THE IFB PROVIDED THAT A COST COMPARISON WOULD BE MADE BETWEEN CONTRACT AND IN-HOUSE PERFORMANCE AND THAT THE IFB WOULD BE CANCELED IF THE IN-HOUSE COST ESTIMATE WAS LOWER.

ESSENTIALLY, CCI PROTESTS AS UNSUPPORTED THE COST FOR EARLY RETIREMENT AND SEVERANCE PAY OF GOVERNMENT EMPLOYEES WHICH THE IFB STATED WOULD BE ADDED TO THE COST OF CONTRACT PERFORMANCE BEFORE COMPARING THE TOTAL IN- HOUSE AND CONTRACT COSTS. CCI CONTENDS THAT THE ARMY STRUCTURED THE EARLY RETIREMENT AND SEVERANCE PAY COST ANALYSIS TO FAVOR THE IN-HOUSE DECISION.

GENERALLY, WE REGARD A DISPUTE OVER AN AGENCY DECISION TO PERFORM WORK IN -HOUSE RATHER THAN TO CONTRACT OUT FOR THOSE SERVICES AS INVOLVING A POLICY TO BE RESOLVED WITHIN THE EXECUTIVE BRANCH. CROWN LAUNDRY AND DRY CLEANERS, INC., B-194505, JULY 18, 1979, 79-2 CPD 38. WHEN, HOWEVER, AN AGENCY USES THE PROCUREMENT SYSTEM TO AID IN ITS DECISIONMAKING, SPELLING OUT IN THE SOLICITATION THE CIRCUMSTANCES UNDER WHICH THE GOVERNMENT WILL AWARD/NOT AWARD A CONTRACT, WE BELIEVE IT WOULD BE DETRIMENTAL TO THE SYSTEM IF, AFTER THE AGENCY INDUCES THE SUBMISSION OF BIDS, IT EMPLOYS A FAULTY OR MISLEADING COST COMPARISON WHICH MATERIALLY AFFECTS THE DECISION AS TO WHETHER A CONTRACT WILL BE AWARDED. KAHOE ENTERPRISES INCORPORATED, B-183866, JUNE 17, 1976, 76-1 CPD 389. AN ALLEGATION THAT A FAULTY COST ANALYSIS WAS MADE, HOWEVER, WILL NOT BE CONSIDERED UNLESS THE PROTEST IS TIMELY. S&G SERVICES, INC., B-197076, APRIL 17, 1980, 80-1 CPD 271.

THE ARMY ASSERTS THAT THE PROTEST IS UNTIMELY UNDER OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980). WE CONCUR WITH THE ARMY - HOWEVER, FOR A DIFFERENT REASON THAN THAT ADVANCED BY THE ARMY.

SHORTLY AFTER BID OPENING, THE ARMY PROVIDED TO CCI A COST ANALYSIS WORKSHEET WHICH DETAILED THE ARMY'S CONVERSION COSTS, INCLUDING THE COST FOR EARLY RETIREMENT AND SEVERANCE PAY. THE OCTOBER 29, 1979, LETTER WHICH ACCOMPANIED THE WORKSHEET STATED THAT "PRELIMINARY CALCULATIONS INDICATE THAT IN-HOUSE OPERATION PROVIDES FOR THE MOST COST-EFFECTIVE MEANS OF PERFORMING THE REQUIREMENTS DESCRIBED IN THE SOLICITATION. FINAL DETERMINATION WILL NOT BE MADE UNTIL MATHEMATICAL CALCULATIONS HAVE BEEN VERIFIED." BOTH THE IFB AND THE LETTER STATED THAT THE ARMY WOULD ALLOW A PERIOD OF AT LEAST 15 DAYS FOR REVIEW OF THE WORKSHEET BEFORE MAKING AN AWARD OR CANCELING THE IFB. CCI DID NOT FILE A PROTEST WITH THE ARMY UNTIL SOMETIME AFTER DECEMBER 17, 1979. THE ARMY CONCLUDES THAT THIS EXCEEDED THE 15-DAY LIMITATION AND, THEREFORE, THE PROTEST IS UNTIMELY.

WE BELIEVE THAT THE OCTOBER 29 COMMUNICATION CONSTITUTED NOTICE TO CCI OF A BASIS FOR PROTEST. OUR BID PROTEST PROCEDURES REQUIRE THAT A PROTEST BE FILED WITHIN 10 WORKING DAYS OF THE DATE UPON WHICH THE BASIS FOR THE PROTEST BECOMES KNOWN, OR SHOULD HAVE BECOME KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 20.2(B)(2) (1980).

HERE, HOWEVER, BOTH THE IFB AND THE LETTER OF OCTOBER 29 STATED THAT THE ARMY WOULD ALLOW A PERIOD OF AT LEAST 15 DAYS FOR REVIEW OF THE WORKSHEET BY INTERESTED PARTIES BEFORE MAKING AN AWARD OR CANCELING THE IFB. UNDER THESE CIRCUMSTANCES, PROTESTERS MAY AVAIL THEMSELVES OF THE LONGER "AT LEAST" 15-DAY PERIOD PROVIDED BY THE IFB RATHER THAN OUR 10 DAY PERIOD. WE BELIEVE AS A GENERAL RULE IT IS INCUMBENT UPON INTERESTED PARTIES TO FILE A PROTEST WITHIN THE MORATORIUM PERIOD SO THAT OBJECTIONS TO THE ESTIMATES MAY BE AIRED AND RESOLVED IN A TIMELY AND EFFICIENT MANNER. S&G SERVICES, INC., SUPRA. HOWEVER, IF IT IS THE INTENT OF THE AGENCY TO ALLOW A 15-DAY MORATORIUM FOR ANY OBJECTION TO THE ESTIMATES, WE ARE RECOMMENDING THAT THE WORDS "AT LEAST" BE DELETED FROM THE CLAUSE TO MAKE THE INTENT CLEAR.

NONETHELESS, IN THE INSTANT CASE, WE DECLINE TO FIND CCI'S DECEMBER 17 PROTEST UNTIMELY. FIRST, THE MORATORIUM PERIOD WAS STATED IN INDEFINITE TERMS. FURTHER, THE RECORD DOES NOT INDICATE EXACTLY WHEN CCI ACTUALLY RECEIVED THE WORKSHEET AND LETTER DATED OCTOBER 29, 1979. MOREOVER, THERE IS SOME INDICATION IN THE RECORD THAT CCI MAY HAVE REQUESTED AND RECEIVED FROM THE ARMY ADDITIONAL DOCUMENTATION EXPLAINING THE WORKSHEET AT SOME TIME BETWEEN THE DATE IT RECEIVED THE WORKSHEET AND DECEMBER 17, THE DATE OF ITS PROTEST. UNDER THESE CIRCUMSTANCES, DOUBTS WILL BE RESOLVED IN FAVOR OF THE PROTESTER. SEE IKARD MANUFACTURING COMPANY, B-192578, FEBRUARY 5, 1979, 79-1 CPD 80. WE THEREFORE FIND THAT CCI'S PROTEST OF DECEMBER 17, 1979, WAS TIMELY.

WE DO FIND, HOWEVER, THAT CCI'S PROTEST TO OUR OFFICE, RECEIVED APRIL 24, 1980, IS UNTIMELY FOR ANOTHER REASON. THE CONTRACTING OFFICER, BY LETTER OF JANUARY 15, 1980, RESPONDED TO CCI'S PROTEST AND, IN EFFECT, DENIED IT. THE LETTER INDICATED THAT THE ARMY HAD CONDUCTED A DETAILED REVIEW OF THE CONVERSION COST ANALYSIS AND DETERMINED THAT, DESPITE CCI'S ASSERTIONS TO THE CONTRARY, THE ANALYSIS WAS CONDUCTED IN COMPLETE COMPLIANCE WITH APPLICABLE REGULATIONS. WHERE A PROTEST IS FILED INITIALLY WITH THE CONTRACTING AGENCY, OUR OFFICE WILL CONSIDER A SUBSEQUENT PROTEST ONLY IF IT IS FILED HERE WITHIN 10 WORKING DAYS OF NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION. 4 C.F.R. SEC. 20.2(A) (1980); NATIONAL FLOORING COMPANY, B-188019, FEBRUARY 24, 1977, 77-1 CPD 138. THEREFORE, SINCE CCI DID NOT FILE ITS PROTEST WITH OUR OFFICE UNTIL MORE THAN 3 MONTHS AFTER DENIAL, THE PROTEST IS UNTIMELY.

CCI POINTS OUT THAT UNTIL ACTUAL CANCELLATION OF THE IFB (WHICH OCCURRED ON APRIL 10, 1980), THE CONTRACTING OFFICER HAD FULL AUTHORITY TO PROCEED WITH AN AWARD. THEREFORE, CCI ARGUES, THE CONTRACTING OFFICER'S LETTER DENYING THE PROTEST WAS NEITHER A FINAL DECISION ON THE METHOD OF ANALYSIS NOR A FINAL DETERMINATION TO CANCEL. IN SUPPORT OF THIS CONCLUSION, CCI OFFERS THAT THE ARMY REQUESTED AN EXTENSION OF THE ACCEPTANCE PERIOD FOR CCI'S BID ON DECEMBER 10, 1979, AND FEBRUARY 4, 1980. CCI CONTENDS THAT SINCE THE JANUARY 15 DENIAL OF THE PROTEST WAS NOT A FINAL DETERMINATION, IT WAS NOT OBLIGATED TO FILE A PROTEST WITH OUR OFFICE WITHIN 10 DAYS THEREOF.

ALTHOUGH WE AGREE THAT THE CONTRACTING OFFICER'S LETTER WAS NOT A FINAL DETERMINATION AND THAT THE ARMY WAS STILL FREE TO ALTER ITS ANALYSIS OF CONVERSION COSTS AND AWARD A CONTRACT TO CCI, WE BELIEVE THAT THE LETTER CLEARLY CONVEYED THE ARMY'S INTENT TO EMPLOY THE ANALYSIS WHICH CCI FOUND OBJECTIONABLE AND WHICH WOULD RESULT IN CANCELLATION OF THE IFB. RECEIPT OF THIS LETTER, THEREFORE, CONSTITUTED NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION AND CAUSED OUR 10-DAY FILING PERIOD TO RUN. SEE 4 C.F.R. SEC. 20.0(B) (1980); BRANDON APPLIED SYSTEMS, INC., B-188738, DECEMBER 21, 1977, 77-2 CPD 486; ALLIED RESOURCES, INC., B-195522, SEPTEMBER 14, 1979, 79-2 CPD 201. HENCE, CCI'S PROTEST TO OUR OFFICE IN APRIL IS UNTIMELY.

THE PROTEST IS DISMISSED.