BNUMBER: B-279553.3
DATE: October 2, 1998
TITLE: Dayton-Granger, Inc.--Reconsideration, B-279553.3, October 2,
1998
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Matter of:Dayton-Granger, Inc.--Reconsideration
File: B-279553.3
Date:October 2, 1998
Richard A. Ciambrone, Esq., Thompson, Hine & Flory, for the requester.
Ronald M. Pettit, Esq., Defense Logistics Agency, for the agency.
Sylvia Schatz, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Where solicitation advised offerors that evaluation of proposals would
be based on price and automated best value model (ABVM) score (a
measure of past delivery performance), and indicated how offerors
could access and, if they desired, challenge their score, protest that
agency used wrong score for protester properly was dismissed as
untimely where it was not filed prior to the closing time for receipt
of offers.
DECISION
Dayton-Granger, Inc. requests reconsideration of our June 12, 1998,
dismissal of its protest of the award of a contract to Dorne &
Margolin, Inc. under request for proposals (RFP) No. SPO970-98-R-X017,
issued by the Defense Supply Center, Columbus (DSCC), Defense
Logistics Agency, for 368 antennas. We dismissed the protest on the
basis that it was untimely filed.
We deny the request.
Dayton-Granger initially protested (B-279553) on the basis that, in
awarding to Dorne & Margolin, the agency improperly had rejected
Dayton-Granger's proposal based on a nonresponsibility determination,
without referring the matter to the Small Business Administration.
Dayton-Granger subsequently withdrew that protest. Thereafter, the
agency advised the firm that its automated best value model (ABVM)
score of 64.8 (a 100-point scale measure of delivery performance on
prior similar contracts) erroneously had included numerous delinquent
delivery orders actually caused by the agency, and thus was being
revised upward to 81.4. Dayton-Granger then filed a protest
(B-279553.2) within 10 days after receiving this information,
maintaining that it should have received the award under the RFP based
on its corrected ABVM score of 81.4, which was higher than Dorne &
Margolin's score of 80.
We dismissed the protest as untimely, finding that the protest should
have been filed prior to the closing time for receipt of proposals.
Bid Protest Regulations, 4 C.F.R. sec. 21.2(a)(1) (1998). We noted
in this regard that, while the RFP did not expressly indicate each
offeror's ABVM score, it stated that the evaluation of past
performance would be based on each offeror's score, and that offerors
could obtain their scores and performance information--and, if they
desired, challenge their scores--by contacting the agency or by
accessing the Electronic Bulletin Board (EBB). Based on the
availability of the information, and the fact that offerors were on
notice that it would be integral to the evaluation, we concluded that
any alleged discrepancies in the ABVM scores or performance
information were in the nature of a solicitation defect, and thus had
to be protested prior to the closing time, the point at which scores
could be reviewed by the agency and, if necessary, corrected without
affecting the evaluation. Thus, we held, Dayton-Granger's protest
filed on April 16, 1998, well after the November 24, 1997 closing time
and March 3 award, was untimely.
In its reconsideration request, Dayton-Granger disputes our conclusion
that the ABVM score deficiencies constitute solicitation deficiencies
which had to be challenged prior to the closing time, since they were
not actually included in the solicitation. Dayton-Granger instead
characterizes its protest as one challenging the propriety of the
agency's making award to a firm which neither offered the lowest price
nor had the highest ABVM score. As such, it asserts, the timeliness
of its protest is governed by the rule under 4 C.F.R. sec. 21.2(a)(2),
which provides that protests based on other than alleged solicitation
deficiencies must be filed within 10 days after the protester knew, or
should have known, the protest basis. Dayton-Granger argues that its
protest is timely under this rule because it diligently pursued its
ABVM information and then filed the protest within 10 days after it
learned that the agency had conceded that the firm's ABVM score was
erroneous, which allegedly rendered the award improper.
We find no basis to change our conclusion. While Dayton-Granger is
correct that potentially defective ABVM scores were not actually
included in the solicitation, we think--as discussed generally above
and in our decision--the RFP's notice as to the accessibility of the
scores was sufficient to put potential offerors on constructive notice
of their scores, and thus warrant considering the scores incorporated
into the RFP. The scores were not unlike provisions incorporated into
a solicitation by reference; in such situations, although the language
of the provisions is not set forth in the solicitation, protesters are
deemed to be on notice of the provisions, and must protest any alleged
deficiency in them prior to the closing time. See Telos Computing,
Inc., B-190105, Mar. 27, 1978, 78-1 CPD para. 235 at 8.
Moreover, as a policy matter, it is clear--again, as discussed in our
decision--that the accuracy of ABVM scores for purposes of a specific
evaluation is a matter that is best addressed as a solicitation
deficiency. Only where a prospective offeror accesses its ABVM score
and challenges it prior to receipt of proposals is the agency able to
attempt to resolve any dispute prior to embarking upon the evaluation;
a challenge raised any later--if found to be meritorious--would
potentially nullify the evaluation and any award decision. Indeed,
that is precisely the effect Dayton-Granger's late-filed protest would
have in this case. See Soltec Corp.--Recon., B-234598.2, Mar. 28,
1989, 89-1 CPD para. 321 at 2-3. While Dayton-Granger's protest, on its
face, purported to challenge the propriety of the award, the specific
claimed impropriety was the agency's use of the wrong ABVM score for
Dayton-Granger in the evaluation. Thus, the propriety of the score
used was the real protest basis for purposes of determining
timeliness; delaying the protest until the agency actually used the
allegedly defective ABVM information in the evaluation and award
decision did not convert it into a post-award protest.[1]
Dayton-Granger maintains that it could not have anticipated that it
should have protested its defective ABVM score prior to the closing
date, and that it thus was unfair to dismiss its protest on this
basis. As is evident from our analysis, we disagree. Since the
solicitation stated that the ABVM score would be considered in the
evaluation, and provided potential offerors with all of the
information needed to access their ABVM scores, we think
Dayton-Granger reasonably should have anticipated that it could not
opt to await the outcome of the competition before assessing the
accuracy of the score on which the evaluation was to be based.[2]
The protester asserts that its efforts in disputing and trying to
resolve specific contract performance discrepancies directly with the
contracting activities since 1996 constituted diligent pursuit, and
that its protest after award therefore was timely. We disagree. The
protest was based on the agency's use of an incorrect ABVM score in
the selection decision. While the protest was filed within 10 days of
the protester's learning in early April that the agency had conceded
that the firm's ABVM score was incorrect, the firm's belief that the
ABVM score was incorrect, not the agency's concurrence in that belief,
was the basis of protest. Once the protester learned of the award
decision shortly after the March 3 award, it could have easily pursued
its basis of protest by checking the EBB to ascertain the then-current
ABVM score, upon which the agency had relied in its award decision.
Had the firm checked the EBB, it would have learned in March that the
EBB still listed the ABVM score which Dayton-Granger believed to be
inaccurate. Because the firm failed to file a protest challenging the
ABVM score within 10 days of award, we would find that the firm had
failed to file a timely protest--even if we did not view the defective
ABVM score as akin to a solicitation impropriety. To allow the
agency's concession of the ABVM scoring error to be the event starting
the 10-day protest clock would mean that, had the agency made that
concession months later than it actually did, a protest challenging
the award could be filed many months after award. It thus remains our
view that Dayton-Granger's protest would have been properly dismissed
as untimely even under the 10-day timeliness rule.[3]
We will reconsider a decision only where it is shown to be factually
or legally erroneous. 4 C.F.R. sec. 21.14(a) (1998); G&C Enters.
Inc.--Recon., B-233537.2, May 10, 1989, 89-1 CPD para. 439 at 2.
Dayton-Granger has not established any error in our decision.
Accordingly, the request for reconsideration is denied.
Comptroller General
of the United States
1. In its comments on the reconsideration request, the agency agrees
with the protester that the 10-day, instead of the pre-closing time,
rule should have been applied (it believes, however, that the protest
properly was dismissed as untimely based on the protester's failure to
diligently pursue the ABVM information on which its protest was
founded). We note that this argument ignores one of the alternative
arguments set forth in the agency's original report on the protest.
There, noting that raising the matter prior to the closing time would
have enabled the agency to timely address the protester's concerns
about its score, the contracting officer stated:
This is not unlike the GAO bid protest regulation that
require[s] protests based on alleged improprieties in a
solicitation, which are apparent prior to . . . the time
set for receipt of initial proposals, be filed prior to
the time set for receipt of initial proposals. . . . If
Dayton-Granger objected to the provisions of clause L-15,
it was required to protest that issue prior to the
solicitation closing date. It did not. The agency cannot
establish a separate procedure simply to accommodate
Dayton-Granger's failure to diligently pursue its
interests.
Contracting Officer's Statement, at 4 (unnumbered). Obviously, we
agreed with this rationale. As the agency notes, in one published
decision, United Terex, Inc., B-275962.2, May 30, 1997, 97-1 CPD para.
196 at 6, we actually cited a lack of diligent pursuit in addressing a
challenge to the protester's ABVM score. However, that decision does
not refer to our timeliness rules or indicate what would have
constituted diligent pursuit. Thus, our position that the ABVM score
protest had to be filed prior to the closing time is not inconsistent
with the analysis in this decision and, in any case, it is our view
that the pre-closing time rule is the correct one.
2. Dayton-Granger argues, as a policy concern, that our decision will
encourage offerors to challenge their ABVM score prior to closing
irrespective of their rating. The overall purpose of the ABVM program
was to give offerors a continuing and timely opportunity to access and
seek amendment of the performance records on which the agency
announced it would rely in future procurements unless the
discrepancies were brought to its attention. United Terex, Inc.,
supra, at 6. Further, as the RFP explicitly stated, the EBB was
established to provide offerors with an opportunity to review
historical performance data and to provide a way to expeditiously
resolve perceived discrepancies. Thus, offerors already are
permitted--indeed, encouraged--to monitor their ABVM scores on a
continuing basis. We see no reason to expect firms which monitor
their ABVM scores to file more challenges as a result of our decision.
3. Dayton-Granger asserts that we should consider its protest under
the significant issue exception to our timeliness requirements. 4
C.F.R. sec. 21.2(c). However, we will invoke the exception only where a
protest raises an issue of first impression or one that would be of
widespread interest to the procurement community. Keco Indus., Inc.,
B-238301, May 21, 1990, 90-1 CPD para. 490 at 4. The protest issue
here--the propriety of the ABVM score evaluation--is not an issue of
first impression (see USA Elecs., B-275389, Feb. 14, 1997, 97-1 CPD para.
75) and, in any case, there is no reason to believe it would be of
widespread interest to the procurement community.