TITLE: B-297261.2, MadahCom, Inc.--Reconsideration, November 21, 2005
BNUMBER: B-297261.2
DATE: November 21, 2005
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B-297261.2, MadahCom, Inc.--Reconsideration, November 21, 2005

   Decision

   Matter of: MadahCom, Inc.--Reconsideration

   File: B-297261.2

   Date: November 21, 2005

   Joel Singer, Esq., Sidley Austin Brown & Wood LLP, for the protester.

   Christina Sklarew, Esq., and Jerold D. Cohen, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that a solicitation improperly restricits competition to
   multiple-award task- order contract holders, and that the task orders will
   exceed the scope of the underlying contracts, is timely under section
   21.2(a)(1) of GAO's Bid Protest Regulations where filed before the closing
   date for receipt of task-order proposals. Dismissal of protest as untimely
   under section 21.2(a)(2) because it was not filed within 10 days of when
   the protester knew that the procurement would be restricted to task-order
   contract holders therefore is reversed.

   DECISION

   MadahCom, Inc. asks that we reconsider our October 6, 2005 dismissal, as
   untimely, of its protest of the decision of the Department of the Army,
   U.S. Army Corps of Engineers (USACE), Europe District, to procure custom
   emergency mass notification systems (MNS) for facilitating emergency
   notifications at various locations in Germany under request for proposals
   (RFPs) issued under multiple-award task order contracts Nos.
   W912GB-04-D-0024-0028, 0032--0035.

   We grant the request for reconsideration.

   The RFPs were issued on September 7 and 8, 2005 to firms holding one of
   the existing task-order contracts. According to the president of MadahCom,
   on September 7 he spoke to a contracting official at USACE Europe and was
   told that a prior solicitation for MNSs would not be implemented until
   2006, while a "couple of small local projects" would be done this year
   using the existing task-order contracts. On that day, MadahCom also
   contacted a contracting official at USACE Europe by e-mail, in which
   MadahCom acknowledged that the task-order contracts would be the
   contracting vehicle for currently available funds. The following day,
   MadahCom's president directed one for the firm's sales managers to contact
   certain task-order contract holders to attempt to understand what the
   task-order contract was, how it was issued, and what its scope was. The
   sales manager expressed interest in working as a subcontractor to one of
   the contract holders and attempted to obtain a copy of the task order in
   order to prepare a proposal prior to a bidders conference that had been
   scheduled for September 14. On September 13, MadahCom learned that it
   would not be permitted to participate in the bidders conference.

   In its protest filed with our Office on September 20, MadahCom argued (as
   relevant here) that the agency's decision to procure the MNSs by issuing
   task orders for sophisticated electronic systems under the multiple-award
   contracts for construction services was improper as the task orders will
   exceed the scope of the underlying contracts. We dismissed this aspect of
   the protest as untimely under our Bid Protest Regulations, which require a
   protest based on other than alleged improprieties in a solicitation to be
   filed not later than 10 calendar days after the protester knew or should
   have known of the basis for protest. 4 C.F.R. sect. 21.2(a)(2) (2005). We
   reasoned that not later than September 8, MadahCom knew or should have
   known of its basis of protest--that it was not eligible to compete as a
   prime contractor for any of the referenced requirements--yet it did not
   file its protest in our Office until September 20.

   In requesting reconsideration, MadahCom argues that we applied the wrong
   timeliness standard, since the basis of protest was that the RFP was
   defective in limiting the competition to the multiple-award contract
   holders because the proposed task orders were outside the scope of those
   contracts--a solicitation impropriety. As protests of this type are
   required to be filed prior to the time set for receipt of initial
   proposals, 4 C.F.R. sect. 21.2(a)(1), and since that date in this case was
   September 21, MadahCom contends that its September 20 protest should be
   deemed timely.

   Under our Regulations, to obtain reconsideration the requesting party must
   set out the factual and legal grounds upon which reversal or modification
   of the decision is deemed warranted, specifying any errors of law made of
   information not previously considered. 4 C.F.R. sect. 21.14(a).

   On reconsideration, we are persuaded that the appropriate rule to apply in
   these circumstances is the solicitation-impropriety rule at 4 C.F.R. sect.
   21.2(a)(1). We have applied the solicitation-impropriety rule in similar
   situations. We have held, for example, that a protest that a competitive
   task order solicitation issued to multiple firms holding umbrella
   contracts is beyond the scope of the umbrella contracts must, pursuant to
   4 C.F.R. sect. 21.2(a)(1), be filed before the time set for proposal
   receipt. United Information Sys., Inc., B-282895, B-282896, June 22, 1999,
   99-1 CPD para.115 at 3. Similarly, we have stated that a small (but not
   disadvantaged) business challenge to a small disadvantaged business
   set-aside--a protest by a company being excluded from a competition--must
   be filed before responses to the restricted solicitation are due, not
   within 10 days after the excluded firm learns of the limitation. Star
   Brite Constr. Co., Inc., B-241741, Feb. 1, 1991, 91-1 CPD para. 105 at 2.
   Where we have held that a beyond-the-scope protest in the context of award
   to multiple-award contract holders had to be filed within 10 days of when
   the protester knew or should have known of the basis for protest,
   application of this rule was based on our conclusion that the particular
   impropriety alleged had not been apparent from the solicitation (because,
   for example, the scope of work when the umbrella contracts were awarded
   was too broad and vague to allow offerors to anticipate a scope-related
   impropriety that might arise later). LBM, Inc., B-290682, Sept. 18, 2002,
   2002 CPD para.157 at 5-7.

   In sum, since the crux of MadahCom's protest concerned the terms of that
   solicitation, it had to be filed before proposals under the solicitation
   in issue were due. Based on the chronology of the events outlined above,
   we conclude that MadahCom's protest was timely filed.

   We are reopening our file and requesting an agency report from USACE, and
   we intend to address the merits of MadahCom's protest in a separately
   decision.

   The request for reconsideration is granted.

   Anthony H. Gamboa

   General Counsel