B-183534, MAY 6, 1975

B-183534, MAY 6, 1975

1. WHERE PROTESTER KNEW OF CIRCUMSTANCES GIVING RISE TO ITS CONCERN OVER AGENCY'S ALLEGED INABILITY TO RENDER UNBIASED EVALUATION OF PROPOSALS IN DECEMBER 1974 AND DISCUSSED PROBLEM WITH AGENCY REPRESENTATIVES ON JANUARY 22, 1975, PROTEST FILED IN GAO ON MARCH 28, 1975, IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(A) (1974 ED.) SINCE IT WAS NOT FILED IN THIS OFFICE WITHIN 5 DAYS OF DATE ON WHICH PROTESTER KNEW BASIS OF ITS PROTEST. 2. PROTEST ALLEGING THAT SOLICITATION CONTAINED IMPROPER EVALUATION CRITERIA WAS DISMISSED AS UNTIMELY WHEN FILED OVER 2 WEEKS AFTER DATE FOR SUBMISSION OF BEST AND FINAL OFFERS.

INDUSTRIAL TECHNOLOGICAL ASSOCIATES, INC.:

INDUSTRIAL TECHNOLOGICAL ASSOCIATES, INC. (ITA) PROTESTS THE AWARD OF A CONTRACT TO ANY OTHER OFFEROR UNDER SOLICITATION NO. DAAA21-75-Q-0063 ISSUED BY PICATINNY ARSENAL, DOVER, NEW JERSEY.

ON JANUARY 2, 1974, ITA WAS AWARDED A ONE-YEAR CONTRACT (DAA21-74-C 0210) FOR AN ENGINEERING ANALYSIS TO IMPROVE THE EFFICIENCY OF MATERIAL HANDLING EQUIPMENT SYSTEMS. BOOZ, ALLEN APPLIED RESEARCH (BAAR) SERVED AS ITA'S SUBCONTRACTOR PERFORMING A SUBSTANTIAL PORTION OF THE EFFORT. ON DECEMBER 10, 1974, A COMMERCE BUSINESS DAILY (CBD) NOTICE ANNOUNCED THE ISSUANCE OF REQUEST FOR QUOTATIONS RFQ NO. DAAA21-75-Q-0063 TO BAAR ON A SOLE-SOURCE BASIS FOR THE "MODERNIZATION OF MATERIALS HANDLING PLANTS." HOWEVER, ON DECEMBER 17, ANOTHER CBD NOTICE STATED THAT RFQ NO. DAAA21-75-Q-0063 WAS CANCELED AND THAT INSTEAD, REQUESTS FOR QUOTATIONS PURSUANT TO THIS SAME RFQ WOULD BE SOLICITED FROM ANY INTERESTED PARTY. ITA SUBSEQUENTLY SUBMITTED A PROPOSAL. ON FEBRUARY 26, 1975, ITA WAS INFORMED THAT ITS PROPOSAL WAS WITHIN THE COMPETITIVE RANGE. DISCUSSIONS FOLLOWED, AND ON MARCH 10 ITA SUBMITTED ITS BEST AND FINAL OFFER. AWARD HAS NOT YET BEEN MADE.

AS THE BASIS FOR ITS PROTEST, ITA EXPLAINS THAT:

"1. THE SOLE-SOURCE RFQ DAAA21-75-Q-0063 WAS ISSUED TO BAAR WHILE A CONTRACT WITH ITA (DAAA21-74-C-0210) WAS STILL IN EFFECT. BAAR AT THAT TIME WAS STILL UNDER SUBCONTRACT TO ITA FOR A COMPLETELY SIMILAR EFFORT.

"2. THE SOLE-SOURCE RFQ COVERED EXACTLY THE SAME TYPE OF WORK WITH THE SAME REQUIREMENTS FOR STUDYING THREE PLANTS AS ITA'S CONTRACT DAAA21-74-C- 0210.

"3. THE WORDING OF THE ANNOUNCEMENT IN THE COMMERCE BUSINESS DAILY OF 17 DECEMBER 1974 WAS DESIGNED TO LIMIT COMPETITION BY INFORMING PROSPECTIVE OFFERORS THAT THE RFQ HAD BEEN ISSUED PREVIOUSLY ON A SOLE SOURCE BASIS TO BAAR."

FURTHERMORE, ITA ASSERTS THAT "THE STATED EVALUATION CRITERIA OF THE RFQ GAVE A GREAT DEAL OF WEIGHT TO CONSIDERATIONS WHICH CAN ONLY BE JUDGED SUBJECTIVELY. COSTS WERE APPARENTLY OF MINOR CONSIDERATION." ITA ALLEGES THAT THE ISSUANCE OF THE COMPETITIVE RFQ DID NOT CHANGE THE ORIGINAL INTENT OF THE PROCURING ACTIVITY TO MAKE AWARD TO BAAR ON A SOLE-SOURCE BASIS AND THEREFORE ITA CONCLUDES THAT, "IN CONSIDERATION OF THE ABOVE, THERE IS A QUESTION AS TO WHETHER OR NOT THE SUBMISSIONS OF ANY CONTRACTOR IN RESPONSE TO DAAA21-75-Q-0063 COULD RECEIVE AN UNBIASED EVALUATION."

OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CODE OF FEDERAL REGULATIONS (C.F.R.) SEC. 20.2(A) (1974 ED.), PROVIDE:

"PROTESTORS ARE URGED TO SEEK RESOLUTION OF THEIR COMPLAINTS INITIALLY WITH THE CONTRACTING AGENCY. PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IN OTHER CASES, BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 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."

ITA INDICATES THAT ON JANUARY 22, 1975, DURING DISCUSSIONS WITH REPRESENTATIVES OF THE PROCURING ACTIVITY ITA "EXPRESSED ITS DOUBTS THAT PICATINNY COULD BE OR WOULD BE COMPLETELY OBJECTIVE AND FAIR IN SELECTING A CONTRACTOR FOR THE NEW PROCUREMENT." IT APPEARS THAT ITA WAS AWARE OF THIS BASIS FOR ITS PROTEST AS EARLY AS DECEMBER 17, 1974, THE DATE ON WHICH THE PROCURING ACTIVITY MADE KNOWN ITS INTENTION TO SOLICIT PROPOSALS UNDER RFQ NO. DAAA21-75-Q-0063, AND IN ANY EVENT NO LATER THAN JANUARY 22, 1975, THE DATE ON WHICH ITA EXPRESSED ITS CONCERN OVER THE ARMY'S ALLEGED INABILITY TO RENDER AN UNBIASED EVALUATION OF THOSE PROPOSALS.

SINCE THE PROTEST WAS FILED IN THIS OFFICE ON MARCH 28, 1975, MORE THAN 5 DAYS AFTER THE DATE ON WHICH THE PROTESTER KNEW OF THIS BASIS FOR ITS PROTEST, THE PROTEST IS UNTIMELY. SIMILARLY, ITA'S ALLEGATION THAT THE SOLICITATION CONTAINED IMPROPER EVALUATION CRITERIA WAS FILED WITH OUR OFFICE OVER 2 WEEKS AFTER THE DUE DATE FOR BEST AND FINAL OFFERS, AND THEREFORE ALSO WAS UNTIMELY UNDER OUR BID PROTEST PROCEDURES QUOTED ABOVE. ACCORDINGLY, WE MUST DECLINE TO CONSIDER ITA'S PROTEST ON ITS MERITS.