Protest Against Extended Closing Date Amendment to Solicitation

A company protested an amendment to extend the closing date under a request for proposals (RFP) issued by the Navy Aviation Supply Office, the Navy's subsequent increase in the quantity of items, and the Navy's solicitation and acceptance of best and final offers prior to resolution of the protest by GAO. The RFP, a total small business set-aside for 21 radio test sets, was first amended to extend the closing date, and then amended to increase the quantity from 21 to 60 sets with the closing date for receipt of proposals again extended. A protest was sent to the Navy, but the Navy negotiated by telegram with the offerors, increased the quantity from 60 to 73 sets and requested best and final offers. The protester asked that the request for best and final offers be postponed pending a GAO decision on the protest. The protesting firm believed that it should be awarded the contract on the basis of its proposal, that solicitation of best and final offers prior to the resolution of the firm's protest was prejudicial to the firm, and that any quantity change subsequent to the filing of the firm's protest should be negotiated by the Navy with the protester. GAO held that the Navy's failure to rescind the amendment and its continued negotiations with the offerors constituted adverse agency action prejudicial to the protester's interests, with the result that the protest was untimely filed with GAO. The protester's timely subsequent protest with regard to the Navy's telegram which increased the quantity and requested best and final offers was to protect the protester's interests if the untimely protest were sustained. Since that protest was not considered, however, the issues of the timely protest were moot and not for consideration. A contracting officer may properly request best and final offers while a protest is pending before GAO, and the Navy complied with regulations by withholding its award pending the GAO decision. Therefore, the protest was dismissed in part and denied in part.