B-181731, OCT 18, 1974

B-181731, OCT 18, 1974

1. PROTEST AGAINST USE OF TWO-STEP PROCUREMENT, AGAINST AMBIGUOUS SOLICITATION PROVISIONS, AND AGAINST REJECTION OF TECHNICAL PROPOSAL, WHICH IS FILED MORE THAN 3 WEEKS AFTER PROTESTER RECEIVES AGENCY DEBRIEFING REGARDING REJECTION OF PROPOSAL, IS UNTIMELY, SINCE 4 C.F.R. 20.2(A) REQUIRES PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN A SOLICITATION TO BE FILED PRIOR TO CLOSING DATE FOR RECEIPT OF PROPOSALS AND PROTESTS ON OTHER GROUNDS TO BE FILED WITHIN 5 DAYS AFTER THE BASIS FOR PROTEST BECOMES KNOWN. 2. ALTHOUGH PROTEST IS UNTIMELY AND CANNOT BE CONSIDERED ON THE MERITS, COMPTROLLER GENERAL COULD NOT AGREE WITH IMPLICATION IN MARINE CORPS' JUSTIFICATION FOR USE OF TWO-STEP ADVERTISING THAT SPECIFICATION CAN BE REGARDED AS TOO INDEFINITE TO PERMIT FORMAL ADVERTISING MERELY BECAUSE DEPARTMENT OF DEFENSE (DOD) HAS NO PRIOR PROCUREMENT EXPERIENCE WITH THE SPECIFICATION. RATHER, SPECIFICATION ITSELF, WITHOUT REGARD TO PROCUREMENT EXPERIENCE UNDER IT, MUST BE EVALUATED TO DETERMINE IF IT IS SUFFICIENTLY DEFINITE TO PERMIT FORMAL ADVERTISING.

ALS ELECTRONICS CORPORATION:

ON MARCH 19, 1974, THE MARINE CORPS ISSUED REQUEST FOR TECHNICAL PROPOSALS NO. M00027-74-B-0039 AS THE FIRST STEP OF A TWO-STEP PROCUREMENT FOR 42 SOLID STATE 5 KVA FREQUENCY CONVERTERS. THE FIVE PROPOSALS RECEIVED WERE TECHNICALLY EVALUATED AND TWO, INCLUDING THE PROPOSAL SUBMITTED BY ALS ELECTRONICS CORPORATION (ALS), WERE DETERMINED TO BE UNACCEPTABLE. AFTER A MEETING BETWEEN THE MARINE CORPS AND ALS DURING WHICH ALS WAS BRIEFED AS TO THE REASONS FOR REJECTION OF ITS PROPOSAL, ALS FILED A PROTEST WITH THIS OFFICE, ALLEGING THAT THE MARINE CORPS IMPROPERLY UTILIZED TWO-STEP ADVERTISING FOR THIS PROCUREMENT, THAT THE SOLICITATION WAS AMBIGUOUS, AND THAT THE REJECTION OF THE ALS PROPOSAL WAS ARBITRARY AND CAPRICIOUS.

THE PROTEST MUST BE REGARDED AS UNTIMELY. OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS PROVIDE THAT 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." C.F.R. 20.2(A). ACCORDINGLY, INSOFAR AS THE PROTEST IS BASED UPON THE USE OF A TWO-STEP PROCUREMENT AND UPON SOLICITATION PROVISIONS WHICH WERE APPARENTLY AMBIGUOUS FROM THE FACE OF THE SOLICITATION, IT IS UNTIMELY BECAUSE IT WAS NOT FILED PRIOR TO THE CLOSING DATE FOR RECEIPT OF TECHNICAL PROPOSALS. FURTHERMORE, THE RECORD INDICATES THAT THE MARINE CORPS NOTIFIED ALS BY LETTER DATED MAY 23, 1974, OF REJECTION OF ITS PROPOSAL, AND THAT ALS RECEIVED A BRIEFING REGARDING THE REJECTION ON JUNE 12, 1974. THE PROTEST WAS NOT FILED, HOWEVER, UNTIL JULY 5, 1974. THUS, IT IS CLEAR THAT THE PORTION OF THE PROTEST BASED UPON THE REJECTION OF THE ALS PROPOSAL AND UPON SOLICITATION AMBIGUITIES, WHICH ALLEGEDLY BECAME APPARENT ONLY AS A RESULT OF THE MARINES' USE OF VARIOUS SOLICITATION PROVISIONS TO DISQUALIFY THE ALS PROPOSAL, IS ALSO UNTIMELY SINCE IT WAS NOT FILED WITHIN 5 DAYS AFTER THE BASIS FOR PROTEST BECAME KNOWN.

FOR THE FOREGOING REASONS, WE MUST DECLINE TO CONSIDER THE MERITS OF THE PROTEST. HOWEVER, WE NOTE THAT THE MARINE CORPS, IN EXPLAINING ITS USE OF TWO-STEP FORMAL ADVERTISING, REFERS TO BOTH INDEFINITE SPECIFICATIONS AND ITS LACK OF KNOWLEDGE OF ANY PRIOR MILITARY PROCUREMENT OF A FREQUENCY CONVERTER BUILT TO THE MILITARY SPECIFICATION THAT WAS INCLUDED IN THE SOLICITATION. IN FACT, WHILE THE CORPS IDENTIFIES CERTAIN SPECIFICATION AREAS (MATERIALS, PROCESSES, METHODS) WHICH ALLOW CONTRACTORS BROAD LATITUDE, IT ALSO STATES THAT DOD "LACK OF EXPERIENCE WITH SOLID STATE FREQUENCY CONVERTERS LESSENED THE DEFINITENESS AND COMPLETENESS OF THE SPECIFICATION FOR PURPOSES OF FORMAL ADVERTISING." THUS, THE MARINE CORPS "DETERMINED THAT THERE SHOULD BE TECHNICAL EVALUATION OF SUPPLIERS' PROPOSALS" BECAUSE IT HAD ONLY "A BASIC PERFORMANCE SPECIFICATION."

AN ADMINISTRATIVE DECISION TO USE TWO-STEP ADVERTISING BECAUSE OF INSUFFICIENTLY DEFINITE SPECIFICATIONS IS ONE WITHIN THE COGNIZANCE OF PROCUREMENT OFFICERS WHO ARE BEST QUALIFIED TO REVIEW AND DETERMINE THE QUALITATIVE REQUIREMENTS OF AN AGENCY, 40 COMP. GEN. 514 (1961); 50 ID. 346 (1970), AND WE DO NOT QUESTION THAT DECISION IN THIS CASE. HOWEVER, WE COULD NOT AGREE WITH THE IMPLICATION IN THE CORPS' JUSTIFICATION THAT DOD "LACK OF EXPERIENCE" WITH CONVERTERS IS WHAT LEADS IT TO REGARD THE MILITARY SPECIFICATION USED IN THIS PROCUREMENT AS INDEFINITE. RATHER, IT IS THE SPECIFICATION ITSELF, WITHOUT REGARD TO AN AGENCYS' PROCUREMENT EXPERIENCE UNDER IT, THAT MUST BE EVALUATED TO DETERMINE IF IT IS SUFFICIENTLY DEFINITE TO PERMIT FORMAL ADVERTISING. OF COURSE, LACK OF EXPERIENCE WITH CERTAIN EQUIPMENT MAY WELL PREVENT AN AGENCY FROM DEVELOPING AN ADEQUATE SPECIFICATION FOR THAT EQUIPMENT, AND WE UNDERSTAND THAT THIS IS WHAT THE CORPS INTENDED TO CONVEY WHEN IT EXPLAINED ITS USE OF TWO-STEP PROCEDURES. ALTHOUGH WE FURTHER NOTE THAT THE MARINE CORPS HAS PREVIOUSLY PROCURED 5 KVA SOLID STATE CONVERTERS, ALBEIT PURSUANT TO A MARINE CORPS PURCHASE DESCRIPTION RATHER THAN THE SUPERSEDING MILITARY SPECIFICATION, B 178404, JUNE 28, 1973, WE HAVE NO REASON TO BELIEVE THAT THE CORPS' EXPERIENCE WITH THE PRIOR PROCUREMENT PROVIDED A SUFFICIENT BASIS FOR THE DEVELOPMENT OF A DEFINITIVE, DETAILED SPECIFICATION FOR USE IN THE INSTANT PROCUREMENT. WE MAKE THESE COMMENTS, HOWEVER, BECAUSE OF THE IMPORTANCE WHICH WE ATTACH TO THE PROPER USE OF TWO-STEP ADVERTISING AND TO PRECLUDE THE POSSIBLE IMPROPER USE OF SUCH PROCEDURES.