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B-225093.2, DEC 16, 1986, OFFICE OF GENERAL COUNSEL

B-225093.2 Dec 16, 1986
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IT APPEARED THAT THE PROTEST WAS WITHOUT MERIT. ASSOCIATED ENGINEERING'S PROTEST ALLEGED THAT THE DEPARTMENT OF THE INTERIOR'S BUREAU OF RECLAMATION IMPROPERLY HAD DETERMINED THAT THE FIRM'S BID TO SUPPLY QUANTITIES OF TRANSFORMERS UNDER INVITATION FOR BIDS (IFB) NO. 6-SI-10-07880 WAS NONRESPONSIVE. INCLUDED WITH THE PROTEST WAS A COPY OF A LETTER FROM THE AGENCY DENYING A SIMILAR PROTEST THAT THE FIRM HAD FILED WITH THE CONTRACTING OFFICER. A SUBSEQUENT PROTEST TO THIS OFFICE IS TO BE FILED WITHIN 10 WORKING DAYS OF WHEN THE PROTESTER LEARNS OF INITIAL ADVERSE AGENCY ACTION ON THE AGENCY-LEVEL PROTEST. THIS IS NOT AN EXCUSE FOR FILING LATE. OUR REGULATIONS ARE PUBLISHED IN THE FEDERAL REGISTER.

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B-225093.2, DEC 16, 1986, OFFICE OF GENERAL COUNSEL

PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - 10 DAY RULE - ADVERSE AGENCY ACTIONS PROCUREMENT - BID PROTEST - GAO PROCEDURES - PROTEST TIMELINESS - DEADLINES - CONSTRUCTIVE NOTIFICATION PROCUREMENT - SEALED BIDDING - BIDS - RESPONSIVENESS - SHIPMENT SCHEDULES - EFFECTIVE DATES DIGEST: IN RESPONSE TO INQUIRY FROM MEMBER OF CONGRESS, GENERAL ACCOUNTING OFFICE (GAO) ADVISES THE MEMBER OF THE BASIS FOR GAO'S DISMISSAL OF A CONSTITUENT'S PROTEST AND THAT, IN ANY EVENT, IT APPEARED THAT THE PROTEST WAS WITHOUT MERIT.

THE HONORABLE ALEX MCMILLAN, HOUSE OF REPRESENTATIVES:

THIS RESPONDS TO YOUR LETTER OF NOVEMBER 18, 1986, REQUESTING OUR COMMENTS CONCERNING A PROTEST FILED WITH THIS OFFICE BY ASSOCIATED ENGINEERING COMPANY ON OCTOBER 30, 1986.

ASSOCIATED ENGINEERING'S PROTEST ALLEGED THAT THE DEPARTMENT OF THE INTERIOR'S BUREAU OF RECLAMATION IMPROPERLY HAD DETERMINED THAT THE FIRM'S BID TO SUPPLY QUANTITIES OF TRANSFORMERS UNDER INVITATION FOR BIDS (IFB) NO. 6-SI-10-07880 WAS NONRESPONSIVE. INCLUDED WITH THE PROTEST WAS A COPY OF A LETTER FROM THE AGENCY DENYING A SIMILAR PROTEST THAT THE FIRM HAD FILED WITH THE CONTRACTING OFFICER. WE CONTACTED ASSOCIATED'S REPRESENTATIVE, MR. SIMS, BY TELEPHONE AND HE INFORMED US THAT ASSOCIATED HAD RECEIVED THE LETTER FROM THE AGENCY ON OCTOBER 7. WE THEREFORE DISMISSED THE PROTEST PURSUANT TO SECTION 21.2(A)(3) OF OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(3) (1986), WHICH PROVIDES THAT IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, A SUBSEQUENT PROTEST TO THIS OFFICE IS TO BE FILED WITHIN 10 WORKING DAYS OF WHEN THE PROTESTER LEARNS OF INITIAL ADVERSE AGENCY ACTION ON THE AGENCY-LEVEL PROTEST. ASSOCIATED FILED ITS PROTEST WITH THIS OFFICE ON OCTOBER 30, MORE THAN 10 WORKING DAYS AFTER OCTOBER 7. ALTHOUGH IT APPEARS THAT ASSOCIATED DELAYED FILING ITS PROTEST WITH OUR OFFICE UNTIL THE CONTRACTING AGENCY ADVISED THE FIRM OF ITS RIGHT TO DO SO, THIS IS NOT AN EXCUSE FOR FILING LATE. OUR REGULATIONS ARE PUBLISHED IN THE FEDERAL REGISTER, AND PROTESTERS ARE CHARGED WITH CONSTRUCTIVE NOTICE OF THEIR CONTENTS. A&A TRANSFER & STORAGE, INC., B-221735, FEB. 4, 1986, 86-1 CPD PARA. 128.

IN ANY EVENT, WE REVIEWED THE MATERIAL ASSOCIATED SUBMITTED TO YOU AS WELL AS THAT SUBMITTED TO OUR OFFICE. BASED ON THIS REVIEW, IT APPEARS TO US THAT THE BUREAU OF RECLAMATION PROPERLY REJECTED THE BID.

THE IFB CONTAINED A REQUIRED DELIVERY DATE OF 98 CALENDAR DAYS AFTER RECEIPT BY THE CONTRACTOR OF A WRITTEN NOTICE OF AWARD. THE IFB STATED THAT BIDS PROPOSING A TIME OF DELIVERY THAT WOULD NOT CLEARLY FALL WITHIN THIS PERIOD WOULD BE REJECTED AS NONRESPONSIVE. THE BID FROM ASSOCIATED PROPOSED TO DELIVER DRAWINGS FOR APPROVAL 15 DAYS AFTER RECEIPT OF THE NOTICE OF AWARD AND TO DELIVER THE TRANSFORMERS 80 DAYS AFTER THE AGENCY APPROVED THE DRAWINGS. ASSUMING THAT THE DRAWINGS IN FACT WERE SUBMITTED FOR APPROVAL ON THE 15TH DAY AFTER NOTICE OF AWARD, IN EFFECT THE BID GUARANTEED DELIVERY OF THE TRANSFORMERS WITHIN THE REQUIRED 98 DAYS ONLY IF THE AGENCY APPROVED THE DRAWINGS IN 3 DAYS OR LESS. SINCE IT DOES NOT APPEAR FROM THE MATERIALS WE REVIEWED THAT THE SOLICITATION PLACE ANY SUCH LIMIT ON THE TIME FOR AGENCY APPROVAL OF THE DRAWINGS, WE THINK THE AGENCY REASONABLY CONCLUDED THAT THE BID FELL SHORT OF A FIRM, UNCONDITIONAL COMMITMENT TO DELIVER THE TRANSFORMERS WITHIN 98 DAYS OF THE NOTICE OF AWARD. A REQUIRED DELIVERY SCHEDULE IN AN IFB IS A MATERIAL REQUIREMENT, AND A BID THAT WOULD PERMIT DELIVERIES LATER THAN ALLOWED BY THE IFB MUST BE REJECTED. SEE ASEA ELECTRIC, INC.-- RECONSIDERATION, B-218129.2, MAY 17, 1985, 85-1 CPD PARA. 565.

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