B-181924, OCT 21, 1974

B-181924, OCT 21, 1974

1. PROTEST, NEARLY 2 MONTHS AFTER NOTICE OF AWARD WAS RECEIVED (DATE BASIS FOR PROTEST SHOULD HAVE BEEN KNOWN), THAT ID WAS IMPROPERLY EVALUATED IS UNTIMELY UNDER SECTION 20.2(A) OF GAO'S BID PROTEST PROCEDURES AND STANDARDS WHICH REQUIRES PROTESTS TO BE FILED WITH CONTRACTING AGENCY WITHIN 5 WORKING DAYS OF DATE BASIS OF PROTEST IS KNOWN, OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 2. CLAIM FOR ANTICIPATED PROFIT LOST AS RESULT OF AGENCY'S IMPROPER EVALUATION IS DENIED AS BOTH GAO AND COURTS HAVE CONSISTENTLY REJECTED VIEW THAT AGGRIEVED BIDDER ENTITLED TO RECOVER LOSS OF ANTICIPATED PROFIT.

CHRYSLER MOTOR CORPORATION:

CHRYSLER MOTORS CORPORATION (CHRYSLER) PROTESTS THE AWARD TO THE FORD MOTOR COMPANY (FORD) OF A CONTRACT FOR APPROXIMATELY 200 MOTOR VEHICLES UNDER GENERAL SERVICES ADMINISTRATION (GSA) SOLICIATION NO. FPNML-D5 66111 -A. IN ADDITION TO THE 200 PROTESTED VEHICLES, CHRYSLER WAS AWARDED APPROXIMATELY 600 VEHICLES UNDER THE SAME SOLICITATION. CHRYSLER MAINTAINS THAT HAD ITS DISCOUNT FOR AWARD OF THE ENTIRE QUANTITY OF VEHICLES BEEN CONSIDERED IN THE EVALUATION, ITS OFFER WOULD HAVE BEEN LOW FOR THE APPROXIMATELY 802 VEHICLES.

A REPRESENTATIVE OF CHRYSLER WAS PRESENT AT THE PUBLIC OPENING ON MARCH 20, 1974. THE CONTRACTS TO BOTH CHRYSLER AND FORD WERE AWARDED ON APRIL 29, 1974. HOWEVER, CHRYSLER STATES THAT IT DID NOT FILE A PROTEST WITH GSA UNTIL JUNE 28, 1974, BECAUSE IT DID NOT LEARN OF THE OMISSION OF ITS DISCOUNT IN THE EVALUATION OF BIDS UNTIL THAT DATE. AFTER GSA DENIED THE PROTEST BY LETTER OF JULY 22, 1974, RECEIVED BY CHRYSLER ON JULY 23, IT SUBMITTED THE PROTEST TO OUR OFFICE ON JUNE 30, 1974.

SECTION 20.2(A) OF OUR BID PROTEST PROCEDURES AND STANDARDS REQUIRES THAT PROTESTS MUST BE FILED NOT LATER THAN 5 WORKING DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER.

AT THE MARCH 20, 1974, BID OPENING, ALL BIDS WERE MADE AVAILABLE FOR PUBLIC INSPECTION. SINCE ITS REPRESENTATIVE WAS THERE, CHRYSLER SHOULD HAVE KNOWN THAT ITS BID WOULD BE LOW IF ITS ALL-OR-NONE DISCOUNT WERE CONSIDERED. WHEN CHRYSLER RECEIVED ITS PARTIAL AWARD ON APRIL 29, 1974, THAT DID NOT REFLECT THE ALL-OR-NONE DISCOUNT, IT SHOULD HAVE KNOWN THAT A MISTAKE HAD BEEN MADE IN EVALUATING ITS BID PRICE. SINCE THE BASIS OF PROTEST SHOULD HAVE BEEN KNOWN TO CHRYSLER ON APRIL 29, 1974, ITS PROTEST TO GSA ON JUNE 28, 1974, WAS UNTIMELY, AND ITS SUBSEQUENT PROTEST TO OUR OFFICE IS ALSO UNTIMELY AND WILL NOT BE CONSIDERED ON ITS MERITS.

CHRYSLER ALSO CLAIMS ENTITLEMENT FOR PROFIT, LOST AS A RESULT OF GSA'S IMPROPER EVALUATION. HOWEVER, BOTH GAO AND THE COURTS HAVE CONSISTENTLY REJECTED THE VIEW THAT AN AGGRIEVED BIDDER IS ENTITLED TO RECOVER LOSS OF ANTICIPATED PROFIT. THE MCCARTY CORPORATION V. UNITED STATES, NO. 282-72, UNITED STATES COURT OF CLAIMS, JUNE 19, 1974; EXCAVATION CONSTRUCTION, INC. V. UNITED STATES, NO. 408-71, UNITED STATES COURT OF CLAIMS, APRIL 17, 1974 (AND CASES CITED THEREIN); MATTER OF IONICS, INCORPOATED, B- 179087, JUNE 5, 1974, 53 COMP. GEN. . ACCORDINGLY, CHRYSLER'S CLAIM FOR PROFIT IS DENIED.