BNUMBER:  B-279383 
DATE:  June 2, 1998
TITLE: United Communications Systems, Inc., B-279383, June 2, 1998
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Matter of:United Communications Systems, Inc.

File:     B-279383

Date:June 2, 1998

Gerard F. Doyle, Esq., and Ron R. Hutchinson, Esq., Doyle & Bachman, 
for the protester.
Rand L. Allen, Esq., and Scott M. McCaleb, Esq., Wiley, Rein & 
Fielding, for Datatrac Information Services, Inc., an intervenor.
Charles A. Walden, Esq., Department of Justice, and Marie Adamson 
Collins, Esq., and Roger D. Waldron, Esq., General Services 
Administration, for the agencies.
David A. Ashen, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

General Accounting Office will not exercise its discretion to waive 
timeliness requirements with respect to untimely protest of ordering 
provisions under General Services Administration multiple-award 
schedule contract for information technology where protester has 
received orders and accepted benefits under the ordering provisions.

DECISION

United Communications Systems, Inc. (UCS) protests the Drug 
Enforcement Administration's (DEA) issuance of an order for 
information technology technical services to Datatrac Information 
Services, Inc. (DIS) under DIS's multiple-award schedule (MAS) 
contract (No. GS-35F-4513G) (hereafter, No. 4513G) with the General 
Services Administration (GSA).  UCS argues that DEA improperly failed 
to synopsize its requirement in the Commerce Business Daily (CBD) and 
compete it among interested potential offerors.  UCS specifically 
challenges DEA's reliance on the provisions of Federal Acquisition 
Regulation (FAR)  sec.  8.404 as authority for not synopsizing the agency's 
requirement.

We dismiss the protest as untimely filed.

On August 16, 1995, GSA issued solicitation No. FCI-96-DL0001B 
(hereafter, No. DL0001B), for offers for the award of contracts under 
GSA's Federal Information Processing (FIP) MAS program, group 70, part 
I, sections B and C, for commercial automatic data processing (ADP) 
equipment, software, service and maintenance.  On July 8, 1996, GSA 
published in the Federal Register a notice and interim rule--41 C.F.R.  sec.  
201-39.801-1--providing that GSA's FIP MAS program would be part of 
the Federal Supply Schedule program and that FIP MAS schedule 
contracts therefore would be governed by FAR Subpart 8.4, Federal 
Supply Schedules.  61 Fed. Reg. 35,635 (1996).  In addition, on 
November 12, 1996, GSA issued amendment No. 4 to solicitation No. 
DL0001B, which added a clause that referenced FAR  sec.  8.404 in 
connection with use of the schedules, and specifically provided that 
"[a] delivery order for quantities that exceed the maximum order may 
be placed with the contractor selected in accordance with FAR 8.404."  
In this regard, FAR  sec.  8.404(a) (June 1997) provided that "[w]hen 
placing orders under a Federal Supply Schedule, ordering activities 
need not seek further competition [or] synopsize the requirement . . . 
."

Meanwhile, on June 26, 1996, UCS submitted an offer in response to 
solicitation No. DL0001B.  UCS acknowledged amendment No. 4 on 
December 4, and was awarded a MAS contract on January 6, 1997.  
Thereafter, on February 24, DIS was awarded MAS contract No. 4513G 
under solicitation No. DL0001B.  

DEA is procuring the information technology technical services as part 
of Phase II of its Firebird Project, which involves an upgrade of 
DEA's ADP infrastructure--as it relates to office automation, text 
processing, image processing and enhanced communications systems--to 
an open system architecture.  DEA established blanket purchase 
agreements (BPA) with DIS on January 6, 1998, and with UCS on January 
28, under their GSA MAS contracts.  (UCS had been furnishing technical 
services to DEA in connection with Phase I of the Firebird Project 
under a Small Business Administration 8(a) contract with DEA.)  On 
February 24, DEA requested a quotation from DIS under its BPA; on 
February 26, the agency issued an order to DIS under the BPA in the 
amount of $1,732,308.48.

UCS argues that DEA's issuance of the order to DIS without first 
synopsizing its requirement and competing it among interested 
potential offerors is inconsistent with the requirement in 41 U.S.C.  sec.  
416(a)(1)(A) (1994) and 15 U.S.C.  sec.  637(e)(1)(A) (1994) that agencies 
synopsize requirements where they intend to "(i) solicit bids or 
proposals for a contract for property or services for a price expected 
to exceed $25,000; or (ii) place an order, expected to exceed $25,000, 
under a basic agreement, basic ordering agreement, or similar 
arrangement . . . ."  In addition, UCS notes that 41 U.S.C.  sec.  
259(b)(3) (1994) provides that the procedures established for GSA's 
MAS program satisfy the general requirement in 41 U.S.C.  sec.  253(a)(1) 
(1994) for use of competitive procedures, "if--(A) participation in 
the program has been open to all responsible sources; and (B) orders 
and contracts under such procedures result in the lowest overall cost 
alternative to meet the needs of the Government."  41 U.S.C.  sec.  
259(b)(3).  UCS argues that a contracting officer cannot determine, 
months after GSA MAS contracts have been awarded, that an order under 
such a contract will result in the lowest overall cost alternative 
without synopsizing the requirement and evaluating responses.  See 
Systemhouse Fed. Sys., Inc., GSBCA 10277-P, 90-1 BCA  para.  22,435.  UCS 
concludes that, under these statutory provisions, DEA was required to 
synopsize its requirement.  To the extent that the provisions of FAR  sec.  
8.404(a) authorized placement of an order under DIS's GSA MAS contract 
without seeking further competition and synopsizing the requirement, 
UCS argues that the regulation is inconsistent with the applicable 
statutory authorities and thus cannot serve as the basis for the 
agency's action here.

Under our Bid Protest Regulations, protests based upon alleged 
improprieties in a solicitation which are apparent prior to closing 
time shall be filed prior to that time; alleged improprieties which do 
not exist in the initial solicitation, but which are subsequently 
incorporated into the solicitation must be protested not later than 
the next closing time for receipt of proposals following the 
incorporation.  4 C.F.R.  sec.  21.2(a)(1) (1998).  The primary purpose of 
these timeliness rules is to afford parties a fair opportunity to 
raise objections they may have to the terms of a solicitation prior to 
the submission of offers, without unduly disrupting or delaying the 
procurement.  Atlantic Coast Contracting, Inc., B-259082.3, July 17, 
1995, 95-2 CPD  para.  21 at 4.

Here, by incorporation of FAR  sec.  8.404(a), amendment No. 4 authorized 
the placement of orders without seeking further competition and 
synopsizing the requirement.  UCS acknowledged amendment No. 4, 
submitted an offer under the terms of the solicitation including 
amendment No. 4, and accepted award without protesting the revised 
terms of the solicitation.  UCS has subsequently received orders under 
its contract.  Although the express requirements of our timeliness 
rules are phrased in terms of the solicitation closing time, we 
believe that in the context of the current "continuous" open seasons 
for the submission of proposals for the award of GSA MAS contracts, 
where awards often are made before the close of the open season, it 
would be inconsistent with the purpose of our timeliness rules to 
permit a firm, as here, to submit a proposal, accept award (and even 
receive orders under the resulting contract), and only then challenge 
the terms of the solicitation.  In any case, UCS did not file its 
protest until after the open season under solicitation No. DL0001B had 
closed (by notice published in the CBD) on December 17, 1997.  UCS's 
protest therefore is untimely.  

UCS asserts that, even if the protest is untimely, we should consider 
the issue raised as significant to the procurement system and 
entertain the protest pursuant to 4 C.F.R.  sec.  21.2(c), which provides 
discretion for our Office to waive timeliness requirements in certain 
cases.  We decline to do so here.  According to GSA, UCS has reported 
receiving orders (since October 1, 1997) in excess of $700,000 under 
its GSA MAS contract.  Indeed, UCS's sales literature highlighted the 
lack of any synopsis requirements when describing the benefits 
afforded under its Federal Supply Schedule contract.  We do not 
consider it an appropriate exercise of our discretion to consider 
UCS's challenge to the ordering provisions under which it has accepted 
such benefits.  See Wilkinson v. Legal Servs. Corp., 80 F.3d 535, 
538-539 (D.C. Cir. 1996); Robertson v. Fed. Election Com'n, 45 F.3d 
486, 490 (D.C. Cir. 1995). 

The protest is dismissed.

Comptroller General
of the United States