B-224558, OCT 22, 1986, 86-2 CPD 443
Highlights
ALLEGED COMPETITIVE ADVANTAGE ENJOYED BY OTHER BIDDERS DOES NOT PROVIDE A BASIS ON WHICH TO OBJECT TO THE PROCUREMENT WHERE THAT ADVANTAGE IS NOT THE RESULT OF IMPROPER CONDUCT BY THE GOVERNMENT. PROTEST CONCERNING DEFECT APPARENT ON THE FACE OF THE SOLICITATION IS UNTIMELY SINCE IT WAS NOT FILED BEFORE THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS. THE RFP WAS ISSUED ON JUNE 23. THAT THOMPSON WAS ADVISED THAT THE COMPETITOR KNEW ABOUT THE SITUATION AND THAT THE PROCUREMENT WOULD CONTINUE. THOMPSON PROTESTS THAT IT HAS BEEN PLACED AT A COMPETITIVE DISADVANTAGE IN THAT THE OFFERED PRICES WILL NOW BE SO LOW THAT IT WILL BE IMPOSSIBLE FOR THOMPSON TO OFFER A REASONABLE PRICE. THOMPSON ALSO PROTESTS THAT COST SHOULD NOT BE THE SOLE FACTOR FOR DETERMINING THE AWARDEE AND THAT THERE SHOULD BE A MINIMUM LOW COST THAT OFFERORS ARE PERMITTED TO PROPOSE.
B-224558, OCT 22, 1986, 86-2 CPD 443
PROCUREMENT - COMPETITIVE NEGOTIATION - COMPETITIVE ADVANTAGE - NON PREJUDICIAL ALLEGATION DIGEST: 1. ALLEGED COMPETITIVE ADVANTAGE ENJOYED BY OTHER BIDDERS DOES NOT PROVIDE A BASIS ON WHICH TO OBJECT TO THE PROCUREMENT WHERE THAT ADVANTAGE IS NOT THE RESULT OF IMPROPER CONDUCT BY THE GOVERNMENT. PROCUREMENT - BID PROTEST - GENERAL ACCOUNTING OFFICE PROCEDURES - PROTEST TIMELINESS - APPARENT SOLICITATION IMPROPRIETIES 2. PROTEST CONCERNING DEFECT APPARENT ON THE FACE OF THE SOLICITATION IS UNTIMELY SINCE IT WAS NOT FILED BEFORE THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS.
THOMPSON TRAFFIC SERVICE, INC.:
THOMPSON TRAFFIC SERVICE, INC., PROTESTS THE AWARD OF ANY CONTRACT UNDER REQUEST FOR PROPOSALS (RFP) NO. FCGA-S8-XV325-N-8-7-86, ISSUED BY THE GENERAL SERVICES ADMINISTRATION TO PROCURE TRANSPORTATION AUDIT SERVICES. WE DISMISS THE PROTEST.
THE RFP WAS ISSUED ON JUNE 23, 1986, AND PROVIDED THAT AN AWARD WOULD BE MADE TO THE TECHNICALLY ACCEPTABLE OFFEROR THAT PROPOSED TO PERFORM THE AUDIT SERVICES AT THE LOWEST COST. THOMPSON ASSERTS THAT AN EMPLOYEE OF A COMPETING FIRM INFORMED THOMPSON AND OTHER BIDDERS OF THE COMPETITOR'S INTENDED BEST AND FINAL PRICE OFFER. THE FIRM STATES THAT IT THEN INFORMED GSA THAT THE EMPLOYEE HAD REVEALED HIS EMPLOYER'S PRICING INFORMATION, AND THAT THOMPSON WAS ADVISED THAT THE COMPETITOR KNEW ABOUT THE SITUATION AND THAT THE PROCUREMENT WOULD CONTINUE. THOMPSON PROTESTS THAT IT HAS BEEN PLACED AT A COMPETITIVE DISADVANTAGE IN THAT THE OFFERED PRICES WILL NOW BE SO LOW THAT IT WILL BE IMPOSSIBLE FOR THOMPSON TO OFFER A REASONABLE PRICE. THOMPSON ALSO PROTESTS THAT COST SHOULD NOT BE THE SOLE FACTOR FOR DETERMINING THE AWARDEE AND THAT THERE SHOULD BE A MINIMUM LOW COST THAT OFFERORS ARE PERMITTED TO PROPOSE.
CONCERNING THOMPSON'S PROTEST THAT OTHER FIRMS HAVE BEEN GIVEN AN ADVANTAGE IN THE COMPETITION (THE SAME ONE THAT SEEMS TO HAVE BEEN AFFORDED THOMPSON), FOR THE PURPOSE OF OUR REVIEW OF BID PROTESTS A FIRM'S COMPETITIVE ADVANTAGE IS OBJECTIONABLE ONLY WHEN IT IS THE RESULT OF A PREFERENCE OR UNFAIR ACTION ON THE PART OF THE GOVERNMENT. ALAMO TECHNOLOGY, INC., ET AL., B-221336, ET AL., APR. 7, 1986, 86-1 CPD PARA. 340. HERE, SINCE GSA DID NOT ENGAGE IN CONDUCT DESIGNED TO GIVE ANY FIRM A PREFERENCE, THOMPSON'S ALLEGATION DOES NOT PROVIDE A BASIS FOR US TO OBJECT TO A CONTRACT AWARD UNDER THE RFP.
CONCERNING THOMPSON'S PROTEST THAT COST SHOULD NOT BE THE SOLE BASIS ON WHICH THE CONTRACT IS AWARDED, TO BE TIMELY UNDER OUR BID PROTEST REGULATIONS AN ISSUE APPARENT FROM THE FACE OF A SOLICITATION MUST BE PROTESTED PRIOR TO THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS. C.F.R. SEC. 21.2(B)(1) (1986). THE RFP INDICATED THE BASIS ON WHICH PROPOSALS WOULD BE EVALUATED, AND THE CLOSING DATE FOR THE RECEIPT OF PROPOSALS WAS AUGUST 7. SINCE THOMPSON DID NOT FILE ITS PROTEST UNTIL OCTOBER 10, THIS BASIS OF PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.
THE PROTEST IS DISMISSED.