Dayton-Granger, Inc.--Reconsideration, B-279553.3, October 2,

B-279553.3 Oct 02, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights 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. We dismissed the protest on the basis that it was untimely filed. Thus was being revised upward to 81.4. 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. Finding that the protest should have been filed prior to the closing time for receipt of proposals. 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. View Decision Matter of: Dayton-Granger, Inc.--Reconsideration File: B-279553.3 Date: October 2, 1998 DIGEST Attorneys 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.