B-206810.4, AUG 2, 1982

B-206810.4, AUG 2, 1982

DIGEST: GAO DISMISSES PROTEST THAT LOW BID IS UNBALANCED FILED ALMOST THREE MONTHS AFTER PROTESTER FILED ANOTHER PROTEST THAT THE BID WAS UNREASONABLY LOW, BECAUSE PROTESTER DID NOT DILIGENTLY PURSUE THE INFORMATION THAT WOULD HAVE REVEALED THE PROTEST GROUND.

TOMBS & SONS, INC.:

TOMBS & SONS, INC. PROTESTS AWARD TO K-P SERVICES COMPANY UNDER ARMY INVITATION FOR BIDS (IFB) NO. DABT31-82-B-0042. WE RECENTLY DISMISSED IN PART AND SUMMARILY DENIED IN PART ANOTHER TOMBS PROTEST FILED APRIL 22, 1982 WHICH ALLEGED, AMONG OTHER THINGS, THAT K-P'S BID IS TOO LOW TO PERMIT SATISFACTORY PERFORMANCE. TOMBS & SONS, INC., B-206810.3, JULY 20, 1982, 82-2 CPD . THE PROTESTER NOW CONTENDS THAT THE REASON K-P'S BID IS SO LOW IS BECAUSE IT IS MATHEMATICALLY AND MATERIALLY UNBALANCED.

ALTHOUGH THE PROTESTER ATTEMPTS TO RELATE ITS ALLEGATION OF UNBALANCING TO THE EARLIER PROTEST, WE CONSIDER THE ISSUE A NEW PROTEST GROUND WHICH MUST INDEPENDENTLY SATISFY THE REQUIREMENTS OF OUR BID PROTEST PROCEDURES. SEE SUN ELECTRIC CORPORATION, B-202325, AUGUST 10, 1981, 81-2 CPD 112. OUR PROCEDURES REQUIRE THAT A PROTEST OF THIS TYPE BE FILED WITHIN TEN WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD BE KNOWN, WHICHEVER IS EARLIER. 4 C.F.R. SEC. 21.2(B)(2) (1982). ORDINARILY, A PROTESTER IS NOT CHARGED WITH KNOWLEDGE OF A BASIS FOR PROTEST UNTIL THE CONTRACTING AGENCY CONVEYS TO THE PROTESTER A POSITION ADVERSE TO THE PROTESTER'S INTEREST. SUN ELECTRIC CORPORATION, SUPRA. IN THIS CASE IT IS NOT CLEAR WHEN TOMBS KNEW THAT THE AGENCY CONSIDERED K-P'S BID ACCEPTABLE. CONSTRUING WHEN A PROTESTER SHOULD KNOW THE BASIS FOR PROTEST, HOWEVER, WE HAVE HELD THAT WHERE A PROTESTER FILES A PROTEST ON ONE GROUND BECAUSE IT EXPECTS THAT THE AGENCY MIGHT TAKE AN ACTION ADVERSE TO ITS INTEREST, THE PROTESTER MUST DILIGENTLY PURSUE INFORMATION WHICH MAY REVEAL RELATED GROUNDS OF PROTEST. SEE SUN ELECTRIC CORPORATION, SUPRA; JAMES G. BIDDLE COMPANY, B-196394, FEBRUARY 13, 1980, 80-1 CPD 129. OUR PROCEDURES DO NOT CONTEMPLATE A PIECEMEAL PRESENTATION OR DEVELOPMENT OF PROTEST ISSUES. PENNSYLVANIA BLUE SHIELD, B-203338, MARCH 23, 1982, 82-1 CPD 272.

K-P'S BID, UPON WHICH TOMBS BASES ITS LATEST PROTEST, WAS AVAILABLE FOR EXAMINATION AT BID OPENING ON APRIL 9, 1982. WHILE TOMBS FILED A PROTEST WITHIN TWO WEEKS AFTER BID OPENING THAT K-P'S BID PRICE (ANNOUNCED AT BID OPENING) WAS UNREASONABLY LOW, IT DID NOT REQUEST TO EXAMINE K-P'S BID UNTIL JULY, AND DID NOT FILE ITS CURRENT PROTEST WITH THIS OFFICE UNTIL JULY 19.

IN LIGHT OF THIS, WE BELIEVE THAT TOMBS FAILED TO PURSUE THE INFORMATION WHICH PROVIDED THE BASIS FOR PROTEST DILIGENTLY. SEE JAMES G. BIDDLE COMPANY, SUPRA.TO CONSIDER TOMBS' PIECEMEAL PROTEST WOULD ONLY SERVE TO DELAY THE PROCUREMENT PROCESS AND THUS RUN COUNTER TO THE THEME OF OUR BID PROTEST PROCEDURES, WHICH EMPHASIZE THE EXPEDITIOUS PURSUIT OF PROTESTS. SEE SUN ELECTRIC CORPORATION, SUPRA.

TOMBS ADDITIONALLY PROTESTS THAT K-P'S BID ON ITS FACE DOES NOT SUFFICIENTLY EVIDENCE K-P'S INTENT TO BE BOUND TO THE CONTRACT REQUIREMENTS. TOMBS SHOULD HAVE KNOWN THIS PROTEST GROUND WHEN IT FIRST SHOULD HAVE EXAMINED K-P'S BID, AS DISCUSSED ABOVE. WE THEREFORE FIND THIS GROUND TO BE UNTIMELY ALSO.

TOMBS ASSERTS THAT THE UNBALANCING ISSUE RAISES A QUESTION AS TO THE REASONABLENESS OF THE ARMY'S EVALUATION CRITERIA AND THUS IS A SIGNIFICANT ISSUE FOR THE PURPOSE OF INVOKING AN EXCEPTION TO OUR TIMELINESS REQUIREMENTS. SEE 4 C.F.R. SEC. 21.2(C); SOUTHEASTERN SERVICES, INC. AND WORLDWIDE SERVICES, INC., 56 COMP.GEN. 668 (1977), 77-1 CPD 390.

WE EXERCISE THE SIGNIFICANT ISSUE EXCEPTION SPARINGLY SO THAT OUR TIMELINESS STANDARDS DO NOT BECOME MEANINGLESS. SEE DOMAR BUCKLE MFG. CORP. - RECONSIDERATION, B-202901.2, AUGUST 17, 1981, 81-2 CPD 148. SOUTHEASTERN SERVICES, WE INVOKED THE EXCEPTION WHERE A BIDDER PROTESTED AFTER BID OPENING THAT THE LOW BID WAS UNBALANCED AND LOW ONLY AS A RESULT OF A DEFECT IN THE EVALUATION FORMULA. WE STATED THAT THE PRIMARY ISSUE WAS THE PROPRIETY OF THE GOVERNMENT'S EVALUATION FORMULA, WHICH NORMALLY SHOULD BE PROTESTED PRIOR TO BID OPENING BECAUSE IT IS APPARENT PRIOR TO THAT DATE. SEE 4 C.F.R. SEC. 21.2(B)(1). NONETHELESS, WE FOUND THE ISSUE SIGNIFICANT BECAUSE THE USE OF DEFECTIVE EVALUATION CRITERIA PREVENTS THE GOVERNMENT FROM OBTAINING FULL AND FREE COMPETITION. THAT DECISION, HOWEVER, DID NOT INVOLVE A PROTESTER WHO FAILED TO PURSUE THE MATTER DILIGENTLY, AND WE BELIEVE THE SIGNIFICANT ISSUE EXCEPTION IS INAPPROPRIATE IN THIS CASE.

MOREOVER, WE REPEATEDLY HAVE HELD THAT THE SIGNIFICANT ISSUE EXCEPTION IS LIMITED TO ISSUES WHICH ARE OF WIDESPREAD INTEREST TO THE PROCUREMENT COMMUNITY, AND DOES NOT EXTEND TO ISSUES PREVIOUSLY CONSIDERED BY THIS OFFICE. SEE DOMAR BUCKLE MFG. CORP. - RECONSIDERATION, SUPRA. WE HAVE CONSIDERED THE ISSUE OF UNBALANCED BIDDING MANY TIMES, AND THERE IS NOTHING TO INDICATE THAT CONSIDERATION OF THIS CASE WOULD BENEFIT ANY MEMBER OF THE PROCUREMENT COMMUNITY EXCEPT TOMBS.

THE PROTEST IS DISMISSED.