B-173879, OCT 1, 1971

B-173879, OCT 1, 1971

BID PROTEST - SPECIFICATION ERRORS - UNTIMELY PROTEST DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY THE DEFENSE SUPPLY AGENCY, PERSONNEL SUPPORT CENTER, PHILADELPHIA, PA., FOR THE MANUFACTURE AND DELIVERY OF 3,688 ARCTIC SLEEPING BAGS. WHERE PROTESTANT ALLEGES THAT ALL BIDDERS MAY NOT BE RESPONDING TO THE IFB ON AN EQUAL BASIS BECAUSE THEY MAY NOT BE AWARE OF ALLEGED ERRORS IN THE SPECIFICATIONS, SUCH PROBLEMS SHOULD BE BROUGHT TO THE ATTENTION OF THE CONTRACTING AGENCY PRIOR TO BIDDING, AND PARTICIPATION IN THE PROCUREMENT THROUGH THE POINT OF BID OPENING WITHOUT OBJECTION MUST RESULT IN A CONCLUSION THAT THE BIDDER HAS ACQUIESCED IN THE TERMS AND CONDITIONS SET OUT IN THE IFB. ACCORDINGLY, THE PROTEST MUST BE DENIED AS UNTIMELY.

TO HUNTER OUTDOOR PRODUCTS, INC.:

WE REFER TO YOUR LETTER OF AUGUST 4, 1971, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. DSA100-71- B-1501 (IFB), ISSUED JUNE 28, 1971, BY THE DEFENSE SUPPLY AGENCY (DSA), PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA, FOR THE MANUFACTURE AND DELIVERY OF 3,688 ARCTIC SLEEPING BAGS UNDER AN APPLICABLE MILITARY SPECIFICATION.

YOU PROTEST ON THE GROUND THAT ALL BIDDERS MAY NOT BE RESPONDING TO THE IFB ON AN EQUAL BASIS BECAUSE THEY MAY NOT BE AWARE OF ALLEGED ERRORS IN THE SPECIFICATIONS. WE ARE ENCLOSING A COPY OF PERTINENT PORTIONS OF THE ADMINISTRATIVE REPORT ON YOUR PROTEST WHICH, IN OUR OPINION, SATISFACTORILY DISPOSES OF YOUR ALLEGATIONS CONCERNING THE SPECIFICATIONS.

WE NOTE THAT NEITHER YOUR FIRM NOR ANY OTHER BIDDER RAISED ANY QUESTION CONCERNING THE TERMS OF THE IFB OR THE PROPRIETY OF THE SPECIFICATIONS PRIOR TO SUBMISSION OF BIDS, ALTHOUGH PARAGRAPH 3 OF THE IFB, "SOLICITATION INSTRUCTIONS AND CONDITIONS," PROVIDED A METHOD UNDER WHICH BIDDERS COULD REQUEST EXPLANATION OR INTERPRETATION OF ANY PROVISION OF THE IFB. WE THINK IT WOULD HAVE BEEN MORE APPROPRIATE FOR YOUR FIRM TO HAVE BROUGHT ANY PROBLEMS CONCERNING THE IFB TO THE ATTENTION OF THE CONTRACTING AGENCY FOR CLARIFICATION PRIOR TO BIDDING. IN B-172082, SEPTEMBER 2, 1971, WE MADE THE FOLLOWING OBSERVATION:

"IN ANY EVENT, IT IS THE POSITION OF OUR OFFICE THAT PROTESTS AGAINST THE SPECIFICATIONS AND CONDITIONS OF AN IFB MUST BE FILED PRIOR TO THE OPENING OF BIDS. A BIDDER WHO PARTICIPATES IN A PROCUREMENT, WITHOUT OBJECTION, THROUGH THE POINT OF BID OPENING MUST BE DEEMED TO HAVE ACQUIESCED IN THE TERMS AND CONDITIONS AS SET OUT IN THE INVITATION. 50 COMP. GEN. 193 (B- 169835, SEPTEMBER 18, 1970). WE THEREFORE CONSIDER THAT YOUR PROTEST, AFTER AWARD, AGAINST GENERAL CONDITIONS 6 AND 7 IS UNTIMELY."

ACCORDINGLY, YOUR PROTEST IS DENIED.