BNUMBER: B-276676
DATE: April 21, 1997
TITLE: Matter of:Fumigadora Popular, S.A.
**********************************************************************
Matter of:Fumigadora Popular, S.A.
File: B-276676
Date:April 21, 1997
Jed L. Babbin, Esq., Tighe, Patton, Tabackman & Babbin, L.L.C., for
the protester.
Diane D. Hayden, Esq., Department of the Navy, for the agency.
Adam Vodraska, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Post-debriefing protest of rejection of bid as unreasonably low is
untimely under the Bid Protest Regulations where it was filed more
than 10 days after the protester received written notice from the
agency of the basis for rejection of its bid; since the procurement
was not conducted on the basis of competitive proposals, the
timeliness rules based on requested and required debriefings are not
applicable.
DECISION
Fumigadora Popular, S.A., protests the rejection of its bid as
unreasonably low by the Department of the Navy, Naval Facilities
Engineering Command, Resident Officer in Charge of Construction,
Panama Canal Area, under invitation for bids (IFB) No.
N62470-96-B-4189, for pest control services.
We dismiss the protest.
At the November 20, 1996, bid opening, the bids ranged in price from
Fumigadora's low bid of $70,782 to a high bid of $950,000. The Navy's
estimate was $230,000. Shortly after bid opening, the Navy asked
Fumigadora to confirm its bid price, which it did on December 16. In
follow-up letters to the Navy dated December 17 and December 26,
Fumigadora explained that it was able to provide the services for the
low price because it was attempting to expand its business and its
overhead costs were already absorbed by its subcontracts with an Army
contractor.
On March 13, 1997, the protester inquired of the Navy as to the status
of contract award. The following day, March 14, the protester
received by facsimile transmission a copy of a letter addressed to
Fumigadora from the contracting officer, which was dated February 13,
stating that:
"[a]lthough your firm was considered to have the expertise
necessary to perform the work outlined in the specification, your
bid has been rejected because your extremely low bid amount is
not a fair and reasonable price as it is evident that the costs
to perform the work required by the contract exceed your bid
price. You have indicated in correspondence that many of your
overhead costs, including labor salaries are being covered by
other contracts."
The letter also stated that the contract had been awarded to TNT
Control de Plagas. Fumigadora had not received the letter earlier
because the letter had apparently been mailed to the wrong address.
Following its March 14 receipt of the contracting officer's letter,
Fumigadora requested a debriefing, which the Navy provided on March
31. According to Fumigadora, Navy officials stated at the debriefing
that they had rejected the bid because they were "uncertain that the
company could perform at its low price if it should lose the jobs that
it is performing on subcontracts for an Army contractor that entail
the same kind of work as that covered by the Navy contract in
question." Fumigadora filed its protest with our Office on April 4,
contending that none of the criteria of Federal Acquisition Regulation sec.
14.404-2 pertaining to the rejection of individual bids were
applicable here or cited by the Navy as a reason for rejecting
Fumigadora's bid.
Our Bid Protest Regulations contain strict rules for the timely
submission of protests. Under these rules, a protest such as
Fumigadora's, based on other than alleged improprieties in a
solicitation, must be filed not later than 10 calendar days after the
protester knew, or should have known, of the basis for protest,
whichever is earlier; in the case of a protest challenging a
procurement conducted on the basis of competitive proposals under
which a debriefing is requested and, when requested, is required, a
protest filed not later than 10 days after the date on which the
debriefing is held will be timely. 4 C.F.R. sec. 21.2(a)(2) (1997).
These timeliness rules reflect the dual requirements of giving parties
a fair opportunity to present their cases and resolving protests
expeditiously without disrupting or delaying the procurement process.
Professional Rehabilitation Consultants, Inc., B-275871,
Feb. 28, 1997, 97-1 CPD para. 94.
Fumigadora contends that it did not learn of the basis for its protest
until the March 31 debriefing, and since it filed its protest on April
4, its protest was timely filed within 10 calendar days of when it
knew the basis of its protest, as required. In this regard,
Fumigadora maintains that neither the contracting officer's letter
received on March 14, nor any events prior to the March 31 debriefing,
gave Fumigadora any actual or constructive notice of the grounds of
this protest. Specifically, Fumigadora asserts that the contracting
officer's letter failed to adequately explain, or give plausible
reasons for, the rejection of the bid, and that the "real reason" for
the rejection of Fumigadora's bid was only revealed during the March
31 debriefing.
While Fumigadora may have questioned the adequacy or plausibility of
the reasons for the rejection of its bid given by the contracting
officer in her letter, and consequently sought the debriefing, the
contracting officer's letter, as stated by one of Fumigadora's own
representatives, "constituted notice that the contract had been
awarded to another bidder and that [Fumigadora's] bid had been
rejected." Moreover, according to another Fumigadora representative
in correspondence to the Navy dated March 17, "[w]hat the [contracting
officer's] letter does contain is the reason why [Fumigadora's] bid
was rejected." Thus, Fumigadora knew the underlying basis for its
April 4 protest--the rejection of its bid as unreasonably low
priced--on March 14. Even the "real reason" Fumigadora speculates for
the rejection of its bid and which it claims was revealed only at the
March 31 debriefing--namely, some type of inadequately documented
"risk analysis" allegedly conducted by the contracting officer
relating to Fumigadora's other contracts--was reasonably apparent from
the contracting officer's letter in which she referred to the other
contracts in rejecting Fumigadora's bid. Because Fumigadora's protest
was filed with our Office more than 10 working days after Fumigadora
knew the basis for protest, the protest is untimely and not for
consideration on the merits. Bid Protest Regulations, 4 C.F.R. sec.
21.2(a)(2); see Western State Management Servs., Inc., B-214427, Mar.
13, 1984, 84-1 CPD para. 305 at 2; aff'd, B-214427.2, Apr. 17, 1984, 84-1
CPD para. 437.
Although Fumigadora's protest was filed within 10 days of a
debriefing, we note that the challenged procurement was not conducted
on the basis of competitive proposals, and the provision in our
Regulations relating to the timeliness of protests based on requested
and required debriefings, 4 C.F.R. sec. 21.2(a)(2), is therefore
inapplicable.
The protest is dismissed.
Comptroller General
of the United States