BNUMBER:  B-272222
DATE:  September 3, 1996
TITLE:  Eagle Vision

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Matter of:Eagle Vision

File:     B-272222

Date:September 3, 1996

Dan Hawkins for the protester.
Terrence J. Tychan and Mike Colvin, Department of Health & Human 
Services, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest of agency's rejection of bid due to defective bid bond is 
dismissed as untimely where initial agency-level protest was untimely 
filed.

2.  Because Buy Indian Act does not require that particular contracts 
be set aside for exclusive participation of Indian firms, General 
Accounting Office will not consider protest that procurement should 
have been restricted to Indian firms absent a clear showing of an 
abuse of the broad discretion conferred by the act.

DECISION

Eagle Vision protests the cancellation of invitation for bids (IFB) 
No. 102-IFB-95-0037, issued as a total set-aside for Indian-owned and 
controlled concerns by the Department of Health and Human Services.  
The protester contends that its bid was improperly rejected based on 
the unacceptability of its proposed individual bid bond surety, and 
objects to the resolicitation of the requirement on an unrestricted 
basis.

We dismiss the protest.

The IFB was issued on October 26, 1995, as a total set-aside for 
Indian-owned and controlled concerns pursuant to the Buy Indian Act, 
25 U.S.C.  sec.  47 (1994).  Three bids were received by the December 12 
bid opening.  One bid was disqualified because the bidder was not 
Indian-owned.  Eagle Vision's low bid was rejected because of agency 
concerns about the acceptability of its individual surety supporting 
the bid bond.  The only remaining responsive bid was determined to be 
unreasonably high.  On January 24, 1996, the procurement was converted 
to negotiated in accordance with Federal Acquisition Regulation (FAR) 
 sec. 14.404-1(e)(1).  

On February 6, offers were requested from Eagle Vision and Gordon 
Construction, the two qualified Indian-owned firms that had bid under 
the original IFB.  Only Eagle Vision submitted an offer by the 
February 21 closing date for receipt of proposals.  By letter dated 
March 5, Eagle Vision was advised that there were deficiencies with 
its individual surety that needed to be corrected.  

Eagle Vision attempted to clarify the matter and to ameliorate the 
deficiencies, but  by letter of March 13, the contracting officer 
advised Eagle Vision that its response did not satisfy the agency's 
concerns regarding the acceptability of the individual sureties.  
Eagle Vision was requested to provide a best and final offer (BAFO) by 
March 22, with a new and acceptable bid bond.  By letter dated March 
22, Eagle Vision advised the contracting officer that a new bid bond 
had been ordered and that it would be forwarded shortly.  On March 22, 
the agency received Eagle Vision's BAFO, but it did not include a new 
bid bond.  Eagle Vision stated in its BAFO that it had ordered a new 
bid bond and expected to receive it shortly. 

The promised new bid bond was not provided and, on March 28, Eagle 
Vision was informed that its offer was rejected because of the 
unacceptability of the individual surety.  That letter also advised 
Eagle Vision that the requirement would be reprocured on an 
unrestricted basis and that the resolicitation would be advertised in 
the Commerce Business Daily (CBD).  The advertisement for the new 
solicitation appeared in the CBD on April 18.  On April 15, the agency 
sent Eagle Vision a copy of the presolicitation notice for the new 
solicitation and on May 13, the protester was sent a copy of the new 
solicitation.  Bid opening under the new solicitation was set for June 
13.  

On May 28, Eagle Vision protested to the contracting officer objecting 
to the rejection of its offer and the resolicitation of the 
requirement on an unrestricted basis.  The agency denied the protest 
on June 5, finding that the protest was untimely to the extent it 
concerned the unacceptability of Eagle Vision's individual surety.  
Thereupon, Eagle Vision filed this protest with our Office on June 5, 
challenging both the agency's determination that Eagle Vision's bid 
bond was unacceptable and the decision to resolicit on an unrestricted 
basis.  

Under our Bid Protest Regulations, protests not based on alleged 
solicitation improprieties must be filed no later than 14 calendar 
days after the protester knew, or should have known, of the basis for 
protest, whichever is earlier.  4 C.F.R.  sec.  21.2(a)(2) (1996).  
Further, our Regulations provide that a matter initially protested to 
the agency will be considered only if the initial protest to the 
agency was filed within the time limits for filing a protest with our 
Office, unless the contracting agency imposes a more stringent time 
for filing, in which case the agency's time for filing will control.  
4 C.F.R.  sec.  21.2(a)(3); Tandy Constr., Inc., B-238619, Feb. 22, 1990, 
90-1 CPD  para.  206.  Thus, to be timely under our Regulations, Eagle 
Vision's agency-level protest concerning its bid bond was required to 
have been filed within 14 calendar days after it learned of the basis 
of its protest.  Having learned on March 28, that the agency had 
rejected its offer because of the unacceptability of its bid bond, 
Eagle Vision's initial agency-level protest, filed on May 28, was 
untimely under our regulations, hence, its subsequent protest to our 
Office is also untimely.

Eagle Vision also protests the agency's decision to issue the new 
solicitation on an unrestricted basis.  The Buy Indian Act permits the 
negotiation of contracts for Indian products with Indians to the 
exclusion of non-Indians.  See Bartow Assocs., Inc., B-204287, Aug. 
17, 1981, 81-2 CPD  para.  151.  While the Secretary of the Interior has 
broad discretionary authority to negotiate exclusively with Indian 
contractors, there is nothing in the Buy Indian Act that requires 
particular procurements to be set aside for Indians.  Under 48 C.F.R. 
Sec. 380.5 (1995), contracting officers for the Indian Health Service 
are vested with this discretion for procurements such as the one at 
issue here.  Our Office has held that we limit review of a decision 
not to restrict procurements to Indian firms only to cases where there 
has been a prima facie showing that there has been an abuse of the 
broad discretion conferred by the Buy Indian Act.  Pine Ridge Constr. 
Co., B-221501, Jan. 22, 1986, 86-1 CPD  para.  71;
Oregon Paiute Contractors, Inc., B-216207, Oct. 22, 1984, 84-2 CPD  para.  
433.

Here, Eagle Vision simply objects to the unrestricted nature of the 
reprocurement which in Eagle Vision's view should have been restricted 
to Indian firms.  The agency had converted the requirement to an 
unrestricted basis because it did not anticipate offers at a fair 
market price by two or more responsible Indian enterprises based on 
the fact that the immediate procurement history had not included any 
offers from responsible Indian-owned firms at a reasonable price.  
Since Eagle Vision has not provided any viable reason to question this 
determination, its protest provides no basis for our Office to 
conclude that there was any abuse of the discretion granted to the 
agency under the act.

The protest is dismissed.

Comptroller General
of the United States