NewSat North America, LLC

B-415138 Nov 21, 2017 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights NewSat North America, LLC, of Indialantic, Florida, protests the terms of request for proposals (RFP) No. W25G1V-17-R-0003 issued by the Department of the Army, U.S. Army Materiel Command for construction of a Radome equipment shelter. NewSat contends that the Army violated procurement regulations by failing to include in the solicitation language required by Army Federal Acquisition Regulation Supplement (AFARS) section 5132.702(a)(ii)(B), despite funds not being available for the procurement. The agency requests that we dismiss the protest because the protester acknowledges the agency acted reasonably in cancelling the solicitation, and that NewSat knew when the solicitation was issued that funding availability was an issue. We dismiss the protest. We dismiss the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of:  NewSat North America, LLC File:  B-415138 Date:  November 21, 2017 Gregory R. Hallmark, Esq., Elizabeth N. Jochum, Esq., Holland & Knight LLP, for the protester. Wade L. Brown, Esq., Department of the Army, for the agency. Robert T. Wu, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging an alleged defect in a solicitation that became apparent after the solicitation's closing time is dismissed as untimely where the protester did not challenge the alleged defect within 10 days of the defect becoming apparent. DECISION NewSat North America, LLC, of Indialantic, Florida, protests the terms of request for proposals (RFP) No. W25G1V-17-R-0003 issued by the Department of the Army, U.S. Army Materiel Command for construction of a Radome equipment shelter. [1]  NewSat contends that the Army violated procurement regulations by failing to include in the solicitation language required by Army Federal Acquisition Regulation Supplement (AFARS) section 5132.702(a)(ii)(B), despite funds not being available for the procurement.  The agency requests that we dismiss the protest because the protester acknowledges the agency acted reasonably in cancelling the solicitation, and that NewSat knew when the solicitation was issued that funding availability was an issue.  We dismiss the protest. BACKGROUND The solicitation, issued on December 20, 2016, sought proposals for construction of a radome.  Tobyhanna Army Depot (TYAD), the activity procuring the radome, is a working-capital fund activity, and the radome was to be procured as a capital asset under the authority of section 2208(k) of Title 10 of the United States Code (U.S.C.).[2]  Id.  The record shows that at the time the solicitation was issued, funding was not yet made available by TYAD's higher headquarters, U.S. Army Materiel Command (AMC), as required by agency procedures.  MOL at 3.  Specifically, the applicable Army guidance provides, "[w]hen a project is approved by AMC and funds are issued for the [fiscal year], activities should obligate funds by 31 March.  A project cannot be funded until it is approved by AMC."  AMC Pamphlet 37-1, Economic Analysis of Army Working Capital Fund (AWCF) Capital Investment Program (CIP) Projects, 10 April 2013, paragraph 8(b). NewSat submitted its proposal to the agency on February 2, 2017.  Agency Report (AR), Tab 11, NewSat Proposal, at 1.  On March 9, the agency entered into discussions with NewSat, to which the firm provided a written response addressing the agency's concerns on March 20.  See generally, AR, Tab 13, Letter Opening Discussions; Tab 14, NewSat Response to Discussions.  The record shows, however, that at the time the solicitation was issued, the project had not yet been approved by AMC, and thus funds were not available for the procurement in accordance with AMC Pamphlet 37-1.  AR, Tab 8, Email among TYAD Engineers; MOL at 2-4.  The record also indicates that NewSat was aware of the funding issues as early as May 18, when a representative of the firm communicated with an agency official inquiring about the status of funding for the radomes.  AR, Tab 17, Emails between TYAD and NewSat, at 3-4.  On July 17, after being unable to obtain approval and funding from AMC to proceed with the procurement, the agency cancelled the solicitation.  AR, Tab 3, Amendment 0002; MOL at 6.  NewSat filed an agency-level protest on July 24 alleging, among other things, that the agency failed to notify industry of the funding issues in accordance with AFARS section 5132.702, and requested that the cancellation of the solicitation be rescinded.  AR, Tab 4, Agency-Level Protest, at 2-3.  The agency issued a decision denying the protest on August 11.  AR, Tab 5, Contracting Officer's Decision. This protest followed. DISCUSSION In its protest filed with our Office, New...