B-180433, FEB 8, 1974

B-180433, FEB 8, 1974

PROTEST AGAINST DETERMINATION THAT LOW BIDDER WAS NOT RESPONSIBLE WHICH WAS NOT FILED WITH GAO FOR MORE THAN TWO MONTHS AFTER INITIAL PROTEST TO AGENCY WAS DENIED BY CONTRACTING OFFICER IS UNTIMELY UNDER SECTION 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS AND WILL NOT BE CONSIDERED. MOREOVER, THIS IS NOT TYPE OF CASE THAT PRESENTS SIGNIFICANT PROCUREMENT ISSUE WITHIN MEANING OF SECTION 20.2(B) OF ABOVE REGULATION AND IS NOT, THEREFORE, FOR CONSIDERATION ON THAT BASIS. SEE COMP. GEN. DECISIONS CITED.

TO EMPIRE MANUFACTURING CO., INCORPORATED:

EMPIRE MANUFACTURING COMPANY, INCORPORATED (EMPIRE), A SMALL BUSINESS CONCERN WHICH WAS THE LOW BIDDER UNDER INVITATION FOR BIDS NO. DSA500 74-B -0431, ISSUED BY THE DEFENSE INDUSTRIAL SUPPLY CENTER, PHILADELPHIA, PENNSYLVANIA, HAS PROTESTED THE REJECTION OF ITS BID AND THE AWARD OF A CONTRACT TO ANOTHER FIRM. FOR THE REASONS STATED BELOW THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.

THE RECORD FURNISHED BY EMPIRE WITH ITS PROTEST INDICATES THAT A PREAWARD SURVEY ON THAT FIRM BY THE COGNIZANT DEFENSE CONTRACT ADMINISTRATIVE SERVICES REGION (DCASR), RECOMMENDED AGAINST AN AWARD TO EMPIRE SINCE IT WAS CONCLUDED THAT EMPIRE COULD NOT MEET THE REQUIRED DELIVERY SCHEDULE IN THE SOLICITATION. ON THE BASIS OF THIS NEGATIVE FINDING IN THE PREAWARD SURVEY, THE CONTRACTING OFFICER DETERMINED THAT EMPIRE WAS NOT A RESPONSIBLE BIDDER FOR PURPOSES OF THIS PROCUREMENT AND THE BID WAS REJECTED. OUR OFFICE HAS BEEN ADVISED BY THE DEFENSE SUPPLY AGENCY THAT THE MATTER OF EMPIRE'S RESPONSIBILITY WAS NOT SUBMITTED TO THE SMALL BUSINESS ADMINISTRATION UNDER THE CERTIFICATE OF COMPETENCY (COC) PROCEDURE IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4 SINCE A CONTRACT FOR UNDER $10,000 WAS INVOLVED. IN THIS REGARD, ASPR 1-705.4(C) MAKES THE COC PROCEDURE DISCRETIONARY WITH THE CONTRACTING OFFICER IF PROPOSED AWARDS EXCEED $2,500 BUT DO NOT EXCEED $10,000. AWARD WAS MADE TO MISCO, INCORPORATED, ON OCTOBER 9, 1973.

BY LETTER OF OCTOBER 17, 1973, TO THE PROCURING AGENCY, EMPIRE REQUESTED A COPY OF THE PREAWARD SURVEY AND BY LETTER OF OCTOBER 19, 1973, TO THE AGENCY, EMPIRE REQUESTED INFORMATION AS TO THE PROCEDURE FOR PROTESTING THE AWARD. ON OCTOBER 24, 1973, AFTER VERBAL CONTACT WITH THE AGENCY, EMPIRE SENT A FORMAL LETTER OF PROTEST TO THE PROCURING ACTIVITY. NOVEMBER 2, 1973, THE PROCURING ACTIVITY RESPONDED TO EMPIRE'S LETTER OF OCTOBER 17, 1973 AND ADVISED EMPIRE OF SOME OF THE DETAILS IN THE PREAWARD SURVEY ON THAT FIRM. EMPIRE WAS ALSO ADVISED THAT IT COULD HAVE A COPY OF THE PREAWARD SURVEY UPON PAYMENT OF APPROPRIATE CHARGES FOR REPRODUCING THE MATERIAL. BY LETTER OF NOVEMBER 7, 1973, THE CONTRACTING OFFICER DENIED EMPIRE'S FORMAL PROTEST.

EMPIRE'S LETTER OF PROTEST TO OUR OFFICE DATED JANUARY 11, 1974, WAS RECEIVED ON JANUARY 15, 1974. IN ITS PROTEST EMPIRE HAS ASSERTED THAT IT PROPOSED USING THE SAME SUPPLIER AS MISCO AND THAT IF MISCO WAS FOUND TO BE RESPONSIBLE THEN EMPIRE SHOULD ALSO HAVE BEEN CONSIDERED AS RESPONSIBLE. EMPIRE FURTHER ASSERTS THAT THERE MAY HAVE BEEN COLLUSION BETWEEN MISCO, ITS SUPPLIER, AND THE DCASR ACTIVITY WHICH HAS RESPONSIBILITY FOR THE PREAWARD SURVEY. EMPIRE ALSO QUESTIONS WHETHER MISCO WILL BE ABLE TO DELIVER THE ITEMS IN ACCORDANCE WITH THE DELIVERY SCHEDULE.

SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS, TITLE 4, CODE OF FEDERAL REGULATION 20.2(A), PROVIDES AS FOLLOWS:

"*** IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. THE TERM 'FILED' AS USED IN THIS SECTION MEANS RECEIPT IN THE CONTRACTING AGENCY OR IN THE GENERAL ACCOUNTING OFFICE AS THE CASE MAY BE AND PROTESTORS ARE, THEREFORE, CAUTIONED THAT PROTESTS SHOULD BE TRANSMITTED OR DELIVERED IN THAT MANNER WHICH WILL ASSURE EARLIEST RECEIPT."

THE RECORD BEFORE OUR OFFICE DOES NOT INDICATE WHEN EMPIRE WAS NOTIFIED THAT THE AWARD WAS MADE TO MISCO. HOWEVER, EVEN IF IT IS ASSUMED THAT EMPIRE'S INITIAL PROTEST TO THE CONTRACTING AGENCY WAS TIMELY, THE PROTEST TO OUR OFFICE SOME TWO MONTHS AFTER THE CONTRACTING OFFICER DENIED EMPIRE'S PROTEST IS UNTIMELY. IN THIS CONNECTION, THE CONTRACTING OFFICER'S DENIAL OF EMPIRE'S PROTEST CONSTITUTES "NOTIFICATION OF ADVERSE AGENCY ACTION" AS THAT TERM IS USED IN THE ABOVE REGULATION. 52 COMP. GEN. 20 (1972), AND B-179985, NOVEMBER 20, 1973. MOREOVER, SINCE THE PROTEST CONCERNS A DETERMINATION OF NONRESPONSIBILITY BY A CONTRACTING OFFICER BASED ON A NEGATIVE FINDING IN A PREAWARD SURVEY, IT DOES NOT PRESENT AN ISSUE SIGNIFICANT TO THE PROCUREMENT PROCESS UNDER SECTION 20.2(B) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS, SUPRA. 52 COMP. GEN. 20, 23 (1972), SUPRA.

SINCE EMPIRE HAS NOT OFFERED ANY EVIDENCE TO SUPPORT ITS CHARGE OF COLLUSION, OUR OFFICE WILL NOT TAKE ANY FURTHER ACTION WITH RESPECT TO THIS ALLEGATION. THE CONTENTION THAT MISCO MAY NOT MEET THE DELIVERY SCHEDULE IS A MATTER THAT IS RELATED TO ADMINISTRATION OF THE CONTRACT AND WOULD NOT BE FOR CONSIDERATION, EVEN IF TIMELY, IN REVIEWING A CONTRACT AWARD UNDER THE BID PROTEST PROCEDURES.

FINALLY, EMPIRE HAS STRONGLY OBJECTED TO THE RECORD REFLECTING A DETERMINATION THAT THAT FIRM IS NOT RESPONSIBLE. THE WORD "RESPONSIBLE" IS A TERM OF ART USED IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION SECTION I, PART 9, TO REFLECT THE DETERMINATION THAT EMPIRE WAS NOT CONSIDERED TO HAVE THE CAPACITY TO PERFORM THE PARTICULAR PROCUREMENT WITHIN THE TIME LIMITATIONS SPECIFIED IN THE INVITATION. THE DETERMINATION DOES NOT CONSTITUTE ANY ADVERSE REFLECTION ON EMPIRE'S RESPONSIBILITY AS THAT TERM IS GENERALLY UNDERSTOOD OUTSIDE OF THE SPECIAL CONTEXT APPLICABLE SOLELY TO THIS GOVERNMENT PROCUREMENT.

ACCORDINGLY, THIS OFFICE WILL NOT TAKE ANY FURTHER ACTION WITH RESPECT TO EMPIRE'S PROTEST.