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.