BNUMBER:  B-276843 
DATE:  May 22, 1997
TITLE: Minotaur Engineering, B-276843, May 22, 1997
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Matter of:Minotaur Engineering

File:     B-276843

Date:May 22, 1997

Kevin Recker for the protester.
Dennis Foley, Esq., Philip Kauffman, Esq., and Phillipa L. Anderson, 
Esq., Department of Veterans Affairs, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Exception to 10-day period for filing a protest pursuant to 4 C.F.R.  sec.  
21.2(a)(2) (1997), where protester challenges a procurement conducted 
on the basis of competitive proposals where a debriefing is requested 
and, when requested, is required, does not apply where protester does 
not timely request required post-award debriefing as contemplated by 
statute and regulation.

DECISION

Minotaur Engineering protests the award of a contract to Televoice, 
Inc. under request for proposals (RFP) No. 516-048-97, issued by the 
Department of Veterans Affairs (VA) for a toll-free integrated voice 
response system using dual tone multi-frequency signaling to 
disseminate information on VA-acquired properties in Florida.

We dismiss the protest.

Section B of the RFP required that offerors submit a price for a 
one-time charge for applications, development, and set up; a unit and 
a total price for service charges for a base period of 6 months; unit 
and total prices for each of two 1-year option periods; and a grand 
total price.  Section M of the RFP listed the following evaluation 
factors in descending order of importance:  total cost; capability; 
and qualifications, and stated that award would be made to the offeror 
whose proposal received the "highest combined score" based on the 
evaluation of proposals.

On April 7, 1997, Minotaur received the VA's "NOTICE OF AWARD" letter 
stating as follows:

     "Based on the offers received in this office on March 12, 1997, 
     award is made to Televoice Inc. of Houston, Texas, in the amount 
     of $4,800.00 [for the base period]. . . .

     "The offer which was submitted by [Minotaur] has been rejected.  
     This was necessary since the [standard form] (SF) 33 
     (Solicitation, Offer and Award) was not returned nor were there 
     any documents provided indicating that [Minotaur's] proposal was 
     a binding offer."

On April 17, Minotaur requested a copy of the abstract of offers; the 
contracting officer furnished the abstract on April 18.

Minotaur filed this protest in our Office on April 23, challenging the 
rejection of its proposal.  The protester also asserts that the award 
to Televoice at a total price higher than Minotaur proposed was 
improper.

Under our Bid Protest Regulations, a protest based on other than 
alleged improprieties in a solicitation must be filed no later than 10 
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) (1997).  
The VA's "NOTICE OF AWARD" letter clearly informed Minotaur why the VA 
rejected its proposal, thus providing Minotaur with a basis for 
protest.  Since it is undisputed that Minotaur received that letter on 
April 7, to be timely, Minotaur was required to have filed its protest 
no later than 10 days after that date, or by April 17.  Minotaur's 
protest, filed in our Office on April 23, is therefore untimely, and 
will not be considered.[1]

Minotaur argues that its protest is timely pursuant to the exception 
to the 10-day timeliness rule for filing protests challenging a 
negotiated procurement provided for in 4 C.F.R.  sec.  21.2(a)(2), which 
states:

     "Protests other than those covered by paragraph (a)(1) of this 
     section shall be filed not later than 10 days after the basis of 
     protest is known or should have been known (whichever is 
     earlier), with the exception of protests challenging a 
     procurement conducted on the basis of competitive proposals under 
     which a debriefing is requested and, when requested, is required.  
     In such cases, with respect to any protest basis which is known 
     or should have been known either before or as a result of the 
     debriefing, the initial protest shall not be filed before the 
     debriefing date offered to the protester, but shall be filed not 
     later than 10 days after the date on which the debriefing is 
     held."  (Emphasis added.)

Minotaur contends that its request for the abstract of offers should 
be considered a debriefing request, which, under this provision, 
extended the period for filing its protest challenging the rejection 
of its proposal.  Minotaur argues, therefore, that its protest, filed 
on April 23, within "10 days after the date on which the debriefing 
[was] held"--i.e., after the date it received the abstract of 
offers--should be considered timely.  We disagree.

As expressly stated in our Regulations, the extension to the 10-day 
period for filing protests in our Office challenging a negotiated 
procurement applies only where "a debriefing is requested and, when 
requested, is required."  Under Federal Acquisition Regulation (FAR)  sec.  
15.1004 (FAC 90-37), which implements 41 U.S.C.  sec.  253b(e) (1994), a 
"required debriefing" is one resulting from a written debriefing 
request "received by the agency within three days after the date on 
which that offeror has received notice of contract award."  If such a 
request is timely received by the agency, the offeror must then be 
debriefed and furnished the basis for the selection decision within 5 
days of the agency's receipt of the request, if practicable.

In order to encourage early and meaningful debriefings and to preclude 
strategic or defensive protests--i.e., protests filed before actual 
knowledge that a basis for protest exists or in anticipation of 
improper actions by the contracting agency, our Office will not 
consider a protest challenging a procurement conducted on the basis of 
competitive proposals where a debriefing is "requested and required," 
if the protest is filed before the debriefing date offered to the 
protester--even where the protest basis was known before the 
debriefing.  The Real Estate Center, B-274081, Aug. 20, 1996, 96-2 CPD  para.  
74 at 2.  As Minotaur correctly points out, under those circumstances, 
the protest instead should be filed not later than 10 days after the 
date on which the debriefing is held.  Id.  Offerors thus preserve the 
right to raise a protest issue, the basis of which they may have known 
prior to the debriefing, without disrupting the procurement or unduly 
delaying the bid protest process in our Office.

As a preliminary matter, Minotaur did not submit a written request for 
a debriefing, but only requested the abstract of offers.  
Additionally, FAR  sec.  15.1004(d) sets forth the minimum information that 
agencies are required to provide in a debriefing, including, for 
example, the government's evaluation of the significant weaknesses or 
deficiencies in the offeror's proposal; a summary of the rationale for 
the award; and reasonable responses to relevant questions concerning 
the source selection procedures.  In our view, the abstract of offers 
standing alone, particularly in the context of a best value 
procurement, cannot reasonably be construed as a "debriefing" as 
contemplated by the FAR. 

In any event, even assuming that Minotaur's request for the abstract 
of offers was tantamount to a written debriefing request, and that the 
abstract of offers could be considered the VA's "debriefing," Minotaur 
did not properly preserve its right under our Bid Protest Regulations 
to challenge the rejection of its proposal.

Minotaur's request for the abstract of offers was received by the 
agency on April 17, more than 3 days after April 7, when Minotaur 
received the notice of award letter.  Accordingly, the VA's 
"debriefing" was not a "required debriefing" under the FAR.  
Minotaur's receipt of the abstract of offers, therefore, did not 
trigger an extension to the 10-day timeliness rule under 4 C.F.R.  sec.  
21.2(a)(2).  Minotaur's protest challenging the rejection of its 
proposal is thus untimely.[2]

The only timely issue Minotaur raised in its protest is the contention 
that award to Televoice at a total price higher than Minotaur proposed 
was improper, since Minotaur learned of that total price when it 
received the abstract.  Under the bid protest provisions of the 
Competition in Contracting Act of 1984, 31 U.S.C.A.  sec.  3551-3556 (West 
Supp. 1997), only an "interested party" may protest a federal 
procurement.  That is, a protester must be an actual or prospective 
supplier whose direct economic interest would be affected by the award 
of a contract or the failure to award a contract.  4 C.F.R.  sec.  21.0(a).  
Since Minotaur failed to timely challenge the rejection of its 
proposal, we have no basis for objecting to the rejection.  Minotaur 
thus would not be in line for award even if its protest concerning 
award to Televoice at a higher total price than Minotaur proposed were 
sustained; Minotaur therefore lacks the direct economic interest 
required to maintain the protest on this ground.[3]  Custom Training 
Aids, Inc., B-241446.2, Feb. 12, 1991, 91-1 CPD  para.  151 at 4.

The protest is dismissed.

Comptroller General 
of the United States

1. Minotaur argues that we should consider its protest under the 
significant issue exception to the timeliness rules.  4 C.F.R.  sec.  
21.2(c).   The significant issue exception will be invoked only where 
the protest involves issues of first impression that would be of 
widespread interest to the procurement community as a whole.  The VA's 
rejection of Minotaur's proposal, while of interest to the protester, 
does not present a significant issue of widespread interest to the 
procurement community.

2. Our conclusion that Minotaur's challenge to the VA's rejection of 
its proposal is untimely does not mean that an offeror that fails to 
timely request a "required debriefing," as described above, loses its 
right to file a timely protest in our Office based on information 
learned as a result of a debriefing.  In this regard, FAR  sec.  15.1004(a) 
states that "[w]hen practicable, debriefing requests received more 
than three days after the offeror receives notice of contract award 
shall be accommodated."  An offeror that learns the basis for protest 
as a result of such a non-required briefing is not precluded from 
subsequently filing a timely protest based on information learned at 
that debriefing.

3. In any event, in a negotiated procurement, unless the RFP so 
specifies there is no requirement that award be based on lowest price.  
Stewart-Warner Elecs. Corp., B-235774.3, Dec. 27, 1989, 89-2 CPD  para.  598 
at 9.  Here, the RFP clearly stated that award would be made to the 
offeror whose proposal received the highest combined numerical score 
based on the evaluation of technical factors and price.  Thus, the 
fact that Minotaur learned that it had submitted the lowest total 
proposed price after it received the abstract of offers, or that 
historically the agency has awarded similar contracts on the basis of 
the lowest total proposed price as the protester contends, does not 
provide a valid basis for protest.