TITLE: B-298408, WareOnEarth Communications, Inc., July 11, 2006
BNUMBER: B-298408
DATE: July 11, 2006
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B-298408, WareOnEarth Communications, Inc., July 11, 2006

   Decision

   Matter of: WareOnEarth Communications, Inc.

   File: B-298408

   Date: July 11, 2006

   David W. Burgett, Esq., Allison D. Pugsley, Esq., and Brian C.J. Berry,
   Esq., Hogan & Hartson LLP, for the protester.

   JoAnn W. Melesky, Esq., Defense Information Systems Agency, for the
   agency.

   Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging agency's issuance of amendments changing basis of
   price evaluation is dismissed as untimely where protest was not filed
   before the time set for receipt of revised proposals.

   DECISION

   WareOnEarth Communications, Inc. (WCI) protests the terms of request for
   proposals (RFP) No. HC1019-04-R-0008, issued by the Defense Information
   Systems Agency, Defense Information Technology Contracting Organization --
   Pacific (DITCO). Specifically, WCI challenges the agency's issuance of
   amendments altering the basis for the agency's price evaluation.

   We dismiss the protest as untimely.

   The agency issued the RFP on June 9, 2005, for various telecommunications
   services for military installations throughout the state of Hawaii,
   referred to as the "Joint Hawaii Information Transfer System (JHITS),"
   which encompasses "switched voice and data services, Integrated Services
   Digital Network (ISDN) services, dedicated transmission (point-to-point
   and multi-point) as well as optional services for the maintenance of
   Customer Premise Equipment (CPE) and intra-base Outside Plant (OSP) cable
   including fiber optic cable." Agency's Comments on Timeliness at 2. The
   RFP contemplates the award of a contract with a period of performance up
   to 10 years in length (6-year base period with a 3-year option period,
   plus an additional 1-year option period).

   As it relates to the protest, the RFP required offerors to submit prices
   for approximately 7,600 contract line item numbers and sub-line item
   numbers (CLIN/SLIN) covering all required services over the 10 years of
   potential contract performance. Each offeror's price was to be evaluated
   based on a "Discounted Life Cycle Cost (DLCC)" calculated for the life of
   the contract. As explained by the parties, the DLCC was to be based on the
   sum of all nonrecurring and recurring costs for all CLINs/SLINs with
   future year costs discounted to present value based on a table of discount
   factors provided by the agency. The agency also provided offerors with a
   software application which automatically calculated their total prices
   based on each offeror's price data. Final proposals were due on April 20,
   2006.

   After receiving final proposals, the agency issued two additional
   amendments to the solicitation on Thursday, June 1, amendments 14 and 15,
   which are the subject of this protest. Principally, these amendments
   changed the basis for determining the offerors' DLCCs by deleting various
   CLINs/SLINs from the calculation.[1] While indicating that the revised
   DLCC pricing scheme "should not result in changes to the offerors'
   proposed pricing," the agency requested offerors to provide their new
   proposed total DLCCs by 4 p.m. on Monday, June 5. RFP amend. 0014, at 2.
   WCI timely submitted its revised DLCC, which consisted of 2 pages, to the
   agency both electronically and via mail. Subsequently, on June 12, WCI
   filed the subject protest challenging the revised basis for calculating
   offerors' DLCCs as set forth in amendments 14 and 15. (June 12 was the
   first business day following the tenth day after WCI received notice of
   the amendments (June 11), which fell on a Sunday.) In its protest WCI
   argues that the agency lacked a legitimate reason or rational basis for
   reducing the scope of the cost evaluation and that even if such reasons
   existed, there was no compelling reason to revise the solicitation after
   receipt and evaluation of final proposals.[2]

   Our Bid Protest Regulations contain strict rules requiring timely
   submission of protests. Challenges to alleged solicitation improprieties
   that did not exist in the initial solicitation but which are subsequently
   incorporated into the solicitation, such as WCI's challenges to amendments
   14 and 15, must be filed prior to the next closing time for receipt of
   proposals. See Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2006).
   Applying this rule, WCI's protest is untimely since it was not filed
   before the June 5 closing time following the issuance of amendments 14 and
   15.

   WCI argues, however, that our Office has recognized an exception to the
   above rule where a protester does not have a reasonable opportunity to
   file its protest before the due date for proposals. In such cases our
   Office has required that the protester challenge the impropriety no later
   than 10 days from the time it knew or should have known of its basis for
   protest--in this case, when WCI learned of amendments 14 and 15. Applying
   this exception, WCI's protest would be timely.

   According to WCI, the exception should apply in this case because WCI did
   not have a reasonable opportunity to file a protest with our Office prior
   to the June 5 closing date due to the numerous steps required to file the
   protest, including: (1) analyzing "the likely differential impact of the
   evaluation changes on the WCI proposal relative to the competition"; (2)
   the need for WCI, a small business concern without in-house counsel, to
   identify and obtain outside counsel; (3) researching and clearing any
   potential conflicts of interest by outside counsel; (4) researching and
   analyzing the bases of protest; and (5) drafting and filing the protest,
   as well as the complex nature of the procurement and protest issues.
   Protester's Letter on Timeliness at 3. WCI further argues that if we do
   not apply the exception in this instance, agencies will have "a strong
   incentive to game the system and avoid review of dubious procurement
   actions" by imposing short closing times for the receipt of revised
   proposals requiring offerors to file "precipitous protests" to protect
   their rights. Id. at 6.

   We conclude that application of the exception is not appropriate in this
   instance. Our timeliness rules reflect the dual requirements of giving
   parties a fair opportunity to present their cases and resolving protests
   expeditiously without unduly disrupting or delaying the procurement
   process. Air Inc.--Recon., B-238220.2, Jan. 29, 1990, 90-1 CPD para. 129
   at 2. In order to prevent these rules from becoming meaningless,
   exceptions are strictly construed and rarely used. Id. The cases where we
   have concluded that an offeror did not have a reasonable opportunity to
   protest solicitation terms, and thus applied the exception advocated by
   WCI, are those where the protester faced an extremely limited timeframe
   within which to challenge the solicitation provisions at issue. See, e.g.,
   Dube Travel Agency & Tours, Inc.; Garber Travel, B-270438, B-270438.2,
   Mar. 6, 1996, 96-1 CPD para. 141 at 6 n.7 (amendment not received until 1
   day before proposals due); Skyline Indus., Inc., B-257340, Sept. 22, 1994,
   94-2 CPD para. 111 at 3 (time for receipt of proposals was "practically
   simultaneous with solicitation itself"); Ling Dynamic Sys., Inc.,
   B-252091, May 24, 1993, 93-1 CPD para. 407 at 3 (protester learned basis
   for challenging solicitation only 2 hours before bid opening); G. Davidson
   Co., Inc., B-249331, July 14, 1992, 92-2 CPD para. 21 at 2 n.1 (concluding
   that 2 hours and 45 minutes was not a reasonable period of time within
   which to file a protest); Bardes Servs., Inc., B-242581, Apr. 29, 1991,
   91-1 CPD para. 419 at 3 (protest not feasible since protester was informed
   of basis of protest only 1 day before proposals due); ImageMatrix, Inc.,
   B-243170, Mar. 11, 1991, 91-1 CPD para. 270 at 1 (protester did not
   receive amendment until 1 day before proposals were due); The Big Picture
   Co., B-210535, Feb. 17, 1983, 83-1 CPD para. 166 at 2 (solicitation
   amendment not received until 1 day before proposals due); Culligan, Inc.,
   58 Comp. Gen. 307 (1979) (protester received solicitation amendment less
   than 3 hours before bid opening); Ampex Corp., B-190529, Mar. 16, 1978,
   78-1 CPD para. 212 at 3 ("the time for receipt of proposals was
   practically simultaneous with the solicitation, the entire process
   apparently taking only 10 minutes").

   Here, the protester received the amendments 4 days--or, as the protester
   describes them, 2 working days--before revised proposals were due and was
   able to prepare and timely submit the revised pricing information required
   by the agency. In other cases we have found that a similar period of
   time--2 or 3 days--prior to a bid or proposal closing date afforded an
   offeror a reasonable opportunity to file a protest challenging the terms
   of a solicitation. See, e.g., Concepts to Operations, Inc., B-248606,
   Sept. 10, 1992, 92-2 CPD para. 164 at 2 (dismissing protest as untimely
   where 3 calendar days, 1 business day, was sufficient time to file
   protest); Mobile/Modular Express, B-246183, Nov. 13, 1991, 91-2 CPD para.
   459 at 2-3 (2 days reasonable period of time to file protest); Pacific
   Instruments, Inc., B-228274, Oct. 21, 1987, 87-2 CPD para. 380 ( "only 2
   working days" as argued by protester was reasonable opportunity to file
   protest); R&B Equip. Co., B-219560.2, Sept. 5, 1985, 85-2 CPD para. 272 at
   2 (afforded "only 2 working days"); Reliance Steel Prods. Co., B-206754,
   Jan. 23, 1983, 83-1 CPD para. 77 at 2 (2 days reasonable); Cybermedic,
   B-200628, May 19, 1981, 81-1 CPD para. 380 at 3 (2 days reasonable
   opportunity to file protest); Clarke & Lewis, Inc., B-196954, Jan. 8,
   1980, 80-1 CPD para. 24 at 2 (2 days sufficient period of time to file
   protest); Irvin Indus., Inc., B-187849, Mar. 28, 1977, 77-1 CPD para. 217
   at 2 (2 days reasonable period of time to file protest).[3]

   As factors in favor of waiving our timeliness rule, WCI points to the
   purported complexity of the protest issues in this case--a factor which
   appears overstated given the limited nature and detail of the arguments
   raised in WCI's protest--as well as its status as a small business concern
   without the aid of in-house counsel. In our view, it is not appropriate to
   take such factors into account as part of our determination. Giving weight
   to such considerations would undermine the bright-line nature of our
   timeliness rules, which serve as a predictable guide to the procurement
   community and, as noted above, strike an appropriate balance between two
   principal goals of our bid protest forum, giving parties a fair
   opportunity to present their cases and resolving protests expeditiously
   without unduly disrupting or delaying the procurement process. Air
   Inc.--Recon., supra.

   The protest is dismissed.

   Gary L. Kepplinger

   General Counsel

   ------------------------

   [1] The amendments explained, however, that all CLIN/SLIN prices,
   including those not utilized for calculating the DLCC, would be evaluated
   for completeness and reasonableness. RFP amend. 0014, at 2.

   [2] For the purpose of establishing competitive prejudice, WCI posits that
   the amended price evaluation scheme appears to favor the incumbent, citing
   three CLINs/SLINs which were not removed from the revised calculation.

   [3] In support of its position that our Office should apply the exception
   to the general rule regarding timely filing of challenges to solicitation
   improprieties, the protester relies on Morrison Knudsen Corp., B-247160,
   Jan. 7, 1992, 92-1 CPD para. 35 at 2, holding that a period of 5 days, or
   3 working days, did not afford the protester a reasonable opportunity to
   file its protest before proposals were due and therefore applying the
   10-day rule. This decision appears to be a departure from our case law and
   will no longer be followed in this respect.