B-196735, JAN 8, 1980

B-196735, JAN 8, 1980

DIGEST: PROTEST BY BIDDER AGAINST INCLUSION OF SERVICE CONTRACT ACT IN SOLICITATION FILED WITH GAO AFTER BID OPENING IS UNTIMELY UNDER 4 C.F.R. SEC. 20.2(B)(1) (1979). ALSO, COVER LETTER INCLUDED WITH BID TAKING EXCEPTION TO REQUIREMENT, IF CONSIDERED PROTEST TO AGENCY, IS UNTIMELY AS PROTEST CONTAINED IN BID SUBMISSION IS NOT PROTEST BEFORE BID OPENING.

AM MULTIGRAPHICS:

AM MULTIGRAPHICS (AM) HAS PROTESTED THE REJECTION OF ITS BID BY THE ENVIRONMENTAL PROTECTION AGENCY (EPA) UNDER INVITATION FOR BIDS NO. WA 79- A-372.

AM'S BID WAS REJECTED AS NONRESPONSIVE BECAUSE WITH ITS BID IT ENCLOSED A COVER LETTER WHICH STATED AM DID NOT BELIEVE THE SERVICE CONTRACT ACT SHOULD APPLY TO THE PROCUREMENT. FOLLOWING THE REJECTION BY EPA, AM PROTESTED HERE.

AM'S PROTEST IS UNTIMELY FILED UNDER OUR BID PROTEST PROCEDURES (4 C.F.R. PART 20 (1979)). SECTION 20.2(B)(1) REQUIRES PROTESTS BASED ON ALLEGED IMPROPRIETIES IN A SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING TO BE FILED PRIOR TO BID OPENING. THE IFB INDICATED THAT THE SERVICE CONTRACT ACT WOULD APPLY AND, IF AM FELT THIS TO BE IMPROPER, THE TIME TO PROTEST WAS PRIOR TO BID OPENING.

MOREOVER, IF AM'S LETTER WITH ITS BID IS CONSIDERED A PROTEST TO THE AGENCY, IT IS ALSO UNTIMELY, SINCE A PROTEST OF AN ALLEGED SOLICITATION IMPROPRIETY FILED WITH THE BID PACKAGE IS NOT TIMELY FILED BEFORE BID OPENING. EMERSON ELECTRIC CO., B-184346, SEPTEMBER 9, 1975, 75-2 CPD 141.

THE PROTEST IS DISMISSED.