Goel Services, Inc.
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.
B-310822.2, Goel Services, Inc., May 23, 2008
Decision
Matter of: Goel Services, Inc.
Abiye Tibebe, Esq., Quagliano & Seeger, PC, for the protester.
Lawrence M. Prosen, Esq., and Joel S. Rubinstein, Esq.,
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.
The IFB, issued on
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,
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
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). We conclude that neither exception is appropriate here.
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,
Here, Goel has offered no compelling reason for its failure to protest prior to bid opening, thus the good cause exception has no application. We also see nothing in the record to suggest that Goel's protest issue is of widespread interest to the procurement community warranting its resolution in the context of an otherwise untimely protest. As a consequence, we decline to address this protest issue here.
Finally, we note that Goel raises another basis of protest for the first time in its
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] GSA rejected as late a bid received from Biscayne Contractors, Inc. after being informed by Goel that it believed the Biscayne bid was late. Protester's Opposition to Agency's Request to Dismiss at 5. On
[2] A contracting agency is required to include FAR sect. 52.219-4, notice of price evaluation preference for HUBZone small business concerns, in solicitations using full and open competition procedures. FAR sect. 19.1308(b).