Automated Medical Products Corporation

B-275835 Feb 03, 1997 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested a Defense Personnel Support Center (DPSC) contract award for retractor holder sets, contending that: (1) the awardee's item failed to conform to the solicitation requirements; (2) DPSC should have conducted a preaward survey of the awardee; and (3) the award violated patents held by the protester. GAO held that the protest was untimely, since the protester did not diligently pursue its basis for protest or request a post-award debriefing where it could have obtained the same or similar information pursuant to its Freedom of Information Act request. Accordingly, the protest was dismissed. View Decision Matter of: Automated Medical Products Corporation File: B-275835 Date: February 3, 1997 Where protester filed its protest based on information received approximately 4 months after award pursuant to a Freedom of Information Act request, protester did not diligently pursue its basis for protest because it could have received the same information forming its basis for protest if it had requested, as contemplated by statute and regulation, a post-award debriefing. Attorneys DECISION Automated Medical Products Corporation (AMPC) protests the award of a contract to International Hospital Supply Company (IHSC) under request for proposals (RFP) No. SPO200-96-R-8029, issued by the Defense Personnel Support Center, Defense Logistics Agency, for retractor holder sets, as identified by a commercial item number. AMPC maintains that IHSC's item fails to conform to the requirements of the solicitation. We dismiss the protest. The agency awarded the contract to IHSC as the low-priced, technically acceptable offeror on August 23, 1996. On August 30, after receiving the notice of award, AMPC filed a Freedom of Information Act (FOIA) request with the agency for "all available information regarding this award including, but not limited to, the full specifications submitted, drawings submitted, testing analysis, point of manufacturing, etc." On September 9, AMPC filed an agency-level protest challenging the award to IHSC on the basis of its low price. AMPC also alleged that the award to IHSC violates patents held by AMPC and that the agency should conduct a pre-award survey of IHSC. AMPC did not request a post-award debriefing. By letter dated December 12, the agency denied AMPC's agency-level protest. On December 20, the agency released to AMPC, pursuant to its FOIA request, the requested drawings. The drawings did not contain confidential information. On December 26, AMPC filed this protest with our Office "based solely on the [FOIA] materials provided by [the agency] on December 20, 1996," contending that "the device being furnished by the awardee is not the item required by the [RFP]." [1] The agency argues that this protest is untimely because AMPC did not diligently pursue its basis for protest, that is, AMPC did not request a post-award debriefing where it could have obtained from the agency the same or similar information ultimately released by the agency pursuant to the firm's FOIA request, which formed AMPC's basis for protest. The agency states that had AMPC availed itself of the debriefing process, the agency would have explained in a timely manner after award why IHSC's proposal, but not AMPC's proposal, was selected for award, thereby providing AMPC with the same or similar information as that released to the firm under FOIA. We agree with the agency that by not requesting a post-award debriefing, and instead making a FOIA request, AMPC did not diligently pursue its basis for protest. Our Bid Protest Regulations contain strict rules for the timely submission of protests. Under these rules, a protest based on other than alleged improprieties in a solicitation must be filed not later than 10 calendar days after the protester knew, or should have known, of the basis for protest, whichever is earlier; however, in the case of a protest challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required, a protest filed not later than 10 days after the date on which the debriefing is held will be timely. Bid Protest Regulations, section 21.2(a)(2), 61 Fed. Reg. 39039, 39043 (1996) (to be codified at 4 C.F.R. Sec. 21.2(a)(2)); The Real Estate Center, B-274081, Aug. 20, 1996, 96-2 CPD Para. 74. These 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.--Request for Recon., B-238220.2, Jan. 29, 1990, 90-1 CPD Para. 129. In this regard, a protester may not passively await the receipt of information providing a basis for protest; rather, the protester has an affirmative obligation to diligently pursue information which may form a basis for protest.