B-233115.3, Feb 17, 1989

B-233115.3, Feb 17, 1989

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule DIGEST: Protest concerning alleged unfair competitive advantage is dismissed as untimely when filed more than 10 working days after the protester knew or should have known the basis of protest.

S.T. Research Corporation:

S.T. Research Corporation protests the award of a contract to ARGOSystems, Inc. under request for proposals (RFP) No. N00024-88-R 5512, issued by the Naval Sea Systems Command for the development, fabrication, integration, testing, installation, demonstration, and documentation of a field change evaluation kit for the AN/WLR-1H(V)3 radar system. S.T. Research argues that the Navy incorporated an enhanced version of ARGOSystems' January 21, 1988, engineering change proposal (ECP) for a single package antenna into the RFP's statement of work (SOW), thereby giving an unfair competitive advantage to ARGOSystems and preventing S.T. Research from competing fairly or otherwise offering an acceptable proposal. S.T. Research asserts that it did not have notice of the basis of its protest until it received a copy of ARGOSystems' ECP on January 6, 1989. /1/

We dismiss the protest as untimely.

The Navy restricted the RFP for the field change kit, issued on April 27, 1988, to two offerors, ARGOSystems and S.T. Research. The RFP called for proposals to provide production improvements to an electronic countermeasure device which provides long range area surveillance of hostile targeting emitters, enabling shipboard weapons to be engaged before hostile targeting radar is able to detect the presence of a Navy ship. Offerors were to develop, test, and install an evaluation change package which will incorporate various subsystems, tolerances, interfaces, tests and standards. The single package antenna assembly with radio frequency side lobe inhibitor (RFSLI) subsystem, which reduces signal interference from the antenna's side lobes, is a major part of the field change kit.

On June 6, 1988, the Navy distributed a memorandum to interested contractors, including ARGOSystems and S.T. Research, concerning approval for testing and evaluation of nine ECPs for the radar system. Enclosed with the memorandum were copies of the nine ECPs, including ARGOSystems' single package antenna ECP and an S.T. Research ECP for a software tracker. On June 16, the Navy then issued a sole-source purchase order to ARGOSystems for a single package antenna, without the RFSLI feature, for the AN/WLR-1H(V)3 radar system. ARGOSystems' single package antenna ECP was a major element of that purchase order and was referenced throughout the SOW for the contract.

The Navy argues that S.T. Research's current protest that ARGOSystems had an unfair competitive advantage in connection with the field change kit procurement is untimely. Specifically, the Navy contends that, although S.T. Research received a copy of ARGOSystems' single package antenna ECP as an attachment to the June 6 Navy memorandum distributed to both S.T. Research and ARGOSystems, it did not file a protest with our Office raising this issue until January 23, 1989.

The Navy further asserts that S.T. Research in fact raised the issue of ARGOSystems' alleged unfair competitive advantage in an October 13, 1988, letter to Senator John Warner, alleging that the Navy's sole source purchase order to ARGOSystems for a single package antenna, a copy of which was obtained by S.T. Research on August 11 through a Freedom of Information Act request, was "similar, if not identical" to the single package antenna requirement contained in the field change kit RFP. addition, the Navy argues that S.T. Research, in its November 21 response to the Navy's refusal to provide certain documents to S.T. Research in its initial protest involving the field change kit, again raised the competitive advantage issue, stating that documents pertaining to the sole -source purchase order to ARGOSystems were relevant to that protest because "an identical single package antenna system was the major requirement" under the field change kit RFP and that the prior issuance of this purchase order to ARGOSystems would have had an "impact on S.T. Research's ability to receive a fair technical evaluation."

We agree with the Navy that S.T. Research's protest of ARGOSystems' alleged unfair competitive advantage is untimely because it was filed more than 10 working days after S.T. Research knew or should have known the basis for protest. See 4 C.F.R. Sec. 21.2(a)(2) (1988).

With regard to the Navy's contention that S.T. Research first became aware of the basis for protest as early as 7 months before the protest was filed, after it received the Navy's June 6, 1988, memorandum transmitting the various ECPs for the radar system, S.T. Research maintains that it did not receive the ARGOSystems ECP at that time; according to S.T. Research, it first received a copy of the ECP on January 6, 1989, when the Navy furnished it a copy in connection with another protest. Even accepting the protester's assertion in this regard, however, the record shows that S.T. Research obtained a copy in August 1988 of the purchase order issued to ARGOSystems for the single package antenna; the ARGOSystems ECP on which the current protest is based is a major element of that purchase order, referenced throughout the SOW.

Further, the record demonstrates that S.T. Research first raised the issue of ARGOSystems' alleged unfair competitive advantage under the field change kit RFP resulting from the sole-source award to ARGOSystems of the purchase order for the single package antenna on October 13, 1988, in its letter to Senator Warner, which resulted in a congressional inquiry concerning the award. Moreover, S.T. Research raised the issue a second time on November 21, in its attempt to obtain documents in connection with its initial protest to our Office of the field change kit award.

As a result, in our view it is clear that S.T. Research had sufficient information to raise the issue of ARGOSystems' competitive advantage as early as August and at the latest by mid-October, both well over 10 days before it filed its protest on January 23. Since the protest was untimely filed, we will not consider it on the merits.

The protest is dismissed.

/1/ This protest is one of three filed by S.T. Research concerning the field change kit procurement. The initial protest challenged S.T. Research's elimination from the competition as technically unacceptable, and was denied on February 15, 1989. In the second protest, which will be addressed in a subsequent decision, S.T. Research argues that ARGOSystems has an unfair competitive advantage because it wrote the SOW for the field change kit RFP, and that award of a contract to ARGOSystems resulted in an organizational conflict of interest.