B-196271, OCT 24, 1979

B-196271, OCT 24, 1979

DIGEST: 1. PROTEST AGAINST ALLEGEDLY IRREGULAR NEGOTIATION PROCEDURES AND IMPROPER AWARD OF CONTRACT IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(B)(2) (1979) WHEN FILED MORE THAN 10 WORKING DAYS AFTER AGENCY NOTIFIED PROTESTER OF THE BASES OF THE PROTEST. 2. ISSUES WHICH HAVE BEEN CONSIDERED IN PREVIOUS GAO DECISION ARE NOT "SIGNIFICANT" UNDER 4 C.F.R. SEC. 20.2(C) (1979) EXCEPTION TO UNTIMELINESS RULES WHICH SANCTIONS GAO CONSIDERATION OF "SIGNIFICANT," ALBEIT UNTIMELY, PROTEST ISSUES.

COMARC DESIGN SYSTEMS, INC.:

COMARC DESIGN SYSTEMS, INC. (COMARC), PROTESTS THE AWARD OF A CONTRACT TO M & S COMPUTING (M & S) UNDER REQUEST FOR PROPOSALS (RPP) NO. H-4436 ISSUED BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (HUD). COMARC BELIEVES THAT HUD OUGHT TO HAVE: (1) NOTIFIED COMARC THAT IT WAS CONSIDERED NONRESPONSIVE AND/OR NONRESPONSIBLE PRIOR TO AWARD; (2) CONDUCTED NEGOTIATIONS WITH COMARC PRIOR TO AWARD; (3) CONSIDERED COMARC'S LOWER OFFER; AND (4) NOTIFIED COMARC PROMPTLY OF THE AWARD TO M & S. COMARC RECOGNIZES THAT ITS PROTEST IS UNTIMELY AND URGES THAT IT BE CONSIDERED UNDER THE "SIGNIFICANT" ISSUE EXCEPTION TO OUR UNTIMELINESS RULES, 4 C.F.R. SEC. 20.2(C) (1979).

WE ARE DISMISSING THE PROTEST WITHOUT CONSIDERATION OF THE ISSUES RAISED SINCE WE FIND THE PROTEST TO BE UNTIMELY AND THE ISSUES RAISED TO HAVE BEEN PREVIOUSLY CONSIDERED IN PRIOR DECISIONS OF OUR OFFICE.

OUR BID PROTEST PROCEDURES REQUIRE THAT PROTESTS (OTHER THAN THOSE BASED UPON ALLEGED IMPROPRIETIES APPARENT IN A SOLICITATION) BE FILED WITHIN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST WAS KNOW OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 20.2(B)(2) (1979). COMARC STATES THAT IT LEARNED OF THE AWARD TO M & S ON JUNE 15, 1979, AND THAT ITS DIRECTOR OF MARKETING WAS PROVIDED A COPY OF HUD'S EVALUATION OF THE COMARC PROPOSAL IN LATE JUNE OF 1979. FROM THIS INFORMATION COMARC SHOULD HAVE BEEN ABLE TO FORMULATE ITS FOUR BASES OF PROTEST. HOWEVER, COMARC WAITED UNTIL OCTOBER 1, 1979, TO FILE ITS PROTEST. IT IS THEREFORE UNTIMELY.

COMARC URGES US TO CONSIDER THE ISSUES RAISED, NOTWITHSTANDING THEIR UNTIMELINESS, SINCE, IN COMARC'S OPINION, THEY CONCERN SUBSTANTIAL VIOLATIONS OF FEDERAL PROCUREMENT REGULATIONS. IN THIS REGARD, COMARC REQUESTS THEIR CONSIDERATION UNDER 4 C.F.R. SEC. 20.2(C) (1979) WHICH SANCTIONS OUR CONSIDERATION OF UNTIMELY BUT "SIGNIFICANT" PROTEST ISSUES. WE HAVE TAKEN THE POSITION THAT SUCH A REQUEST WILL NOT BE HONORED WHERE WE HAVE PREVIOUSLY CONSIDERED THE ISSUES RAISED. IN OUR OPINION SUCH PREVIOUSLY CONSIDERED ISSUES ARE NOT "SIGNIFICANT" WITHIN THE MEANING OF 4 C.F.R. SEC. 20.2(C) (1979). D.A. CRUCIANI AND FRANK A. AGNONE, B-187958, DECEMBER 21, 1976, 76-2 CPD 518. OUR REVIEW OF COMARC'S ISSUES DISCLOSES THAT THEY PRESENT QUESTIONS WHICH WE HAVE PREVIOUSLY CONSIDERED. THE FIRST ISSUE WAS CONSIDERED IN DACONICS, B-182309, MAY 19, 1975, 75-1 CPD 300; THE SECOND ISSUE IN 51 COMP.GEN. 431 (1972); THE THIRD ISSUE IN FORDEL FILMS, INC., B-186841, OCTOBER 29, 1976, 76-2 CPD 370; AND THE FOURTH ISSUE IN LEON WHITNEY, CERTIFIED PUBLIC ACCOUNTANT, B-190792, DECEMBER 19, 1978, 78-2 CPD 420.

FOR THE ABOVE REASONS THE PROTEST IS NOT FOR CONSIDERATION ON ITS MERITS AND, THEREFORE, MUST BE DISMISSED.