B-310822.2, Goel Services, Inc., May 23, 2008

B-310822.2 May 23, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Goel Services, Inc. protests the award of a contract to Grunley Construction Company under invitation for bids (IFB) No. GS-11P-07-MKC-0093 issued by the General Services Administration (GSA) for construction services. Goel contends that GSA improperly failed to apply the HUBZone price evaluation preference to the bids received which prevented the firm from receiving the award. We deny the protest. View Decision B-310822.2, Goel Services, Inc., May 23, 2008 Decision Matter of: Goel Services, Inc. File: B-310822.2 Date: May 23, 2008 Abiye Tibebe, Esq., Quagliano & Seeger, PC, for the protester. Lawrence M. Prosen, Esq., and Joel S. Rubinstein, Esq., Bell, Boyd & Lloyd LLP, for Grunley Construction Company, the intervenor. Timothy C. Tozer, Esq., General Services Administration, Public Buildings Service, for the agency. Paula A. Williams, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protester's contention that the agency failed to apply the Historically Underutilized Business Zone (HUBZone) price evaluation preference is denied where the solicitation did not include the HUBZone price evaluation preference; to the extent the protester argues that the preference should have been included in the solicitation, the protest is untimely as the protester did not challenge the terms of the solicitation until after the agency made an award. DECISION Goel Services, Inc. protests the award of a contract to Grunley Construction Company under invitation for bids (IFB) No. GS-11P-07-MKC-0093 issued by the General Services Administration (GSA) for construction services. Goel contends that GSA improperly failed to apply the HUBZone price evaluation preference to the bids received which prevented the firm from receiving the award. We deny the protest. The IFB, issued on September 6, 2007 and amended several times, called for the demolition and construction of a security screening area at a Department of State federal building in Washington, DC. By the October 18 bid opening date, the agency received four timely bids.[1] The total bid prices were as follows: Sigal Construction Corporation, $4,360,819; Grunley, $6,507,000; Southern Insulation, $6,532,000; and Goel, $7,129,692. Sigal subsequently was authorized by the agency to withdraw its bid, and on January 16, 2008, award was made to Grunley. By letter dated that same day, the agency notified Goel of the award and this protest followed. In its initial protest, Goel challenges the award to Grunley alleging that under Federal Acquisition Regulation (FAR) sect. 19.1308 the agency should have applied a 10 percent price evaluation preference for HUBZone firms such as itself, and argues that, with the preference, it would have been next in line for award. In answer to the protest, the agency advised Goel, and our Office, that the solicitation mistakenly failed to include the clause implementing the HUBZone price evaluation preference. Agency Request for Dismissal at 1. Goel replies that even if the solicitation did not include the clause, the agency was required to apply the price preference here. We disagree. Given that the agency did not include the clause in its solicitation, the agency did not violate the terms of the solicitation by failing to apply the preference. In addition, despite the protester's arguments to the contrary, there is no requirement that mandatory provisions must be incorporated into solicitations by operation of law when they have been omitted. See American Imaging Serv., Inc.--Recon., B'250861.2, Jan. 5, 1993, 93-1 CPD para. 13 at 2 (involving a mandatory preference for small disadvantaged business concerns); see also Parsons Precision Prod., Inc., B-249940, Dec. 22, 1992, 92-1 CPD para. 431 at 6 (involving omission of a clause implementing the Prompt Payment Act). Moreover, to the extent the protester is now arguing that the HUBZone price evaluation preference should have been included in the solicitation, the protest is untimely. Our Bid Protest Regulations contain strict rules for the timely submission of protests. They specifically require that a protest based upon alleged improprieties apparent on the face of the solicitation, such as Goel's challenge to GSA's failure to include the HUBZone price evaluation preference in the solicitation,[2] must be filed prior to bid opening. See Bid Protest Regulations, 4 C.F.R. sect. 21.2 (a)(1) (2008). Applying this rule, Goel's protest is untimely since it was not filed before the October 18, 2007 bid opening date. Goel argues, however, that our regulations permit us to consider an untimely protest –for good cause shown— or where we determine that a protest raises issues significant to the procurement system. 4 C.F.R. sect. 21.2(c).