MOTION TO AMEND DENIED: September 22, 1992 GSBCA 12006-P VALIX FEDERAL PARTNERSHIP I, Protester, v. DEPARTMENT OF THE ARMY, Respondent, and FUTURA SYSTEMS & TECHNOLOGIES, INC., Intervenor. Shelton H. Skolnick, Derwood, MD, counsel for Protester. Richard Couch, Craig E. Hodge, William R. Medsger, MAJ, JAGC, U.S. Army Materiel Command, Alexandria, VA, and David H. Scott, U.S. Army Test and Evaluation Command, Aberdeen Proving Ground, MD, counsel for Respondent. Patricia O'Hearn, Vice President of Futura Systems & Technologies, Inc., Salem, NH, appearing for Intervenor. Before Board Judges NEILL, PARKER, and VERGILIO. NEILL, Board Judge. This protest was filed by Valix Federal Partnership I (Valix) on September 9, 1992. It concerns an invitation for bids for the purchase of microcomputers and peripheral equipment by the Department of the Army (the Army). The procurement has been set aside by the Army for small disadvantaged business (SDB). Protester has challenged the propriety of this SDB set-aside on a relatively specific ground. It now seeks to amend its original complaint to add an additional ground. For the reasons set out below, we deny the motion to amend. Background Prior to the date established for the submission of bids, Valix filed an agency protest regarding this SDB set-aside. In making its agency protest, Valix pointed out that some items sought were supplied or manufactured by "large and non-SDB business," that the procurement was unduly restrictive of competition, and that it would cause the Government to pay unnecessary additional cost for the equipment in question. In responding to Valix's agency protest, the contracting officer referred protester to Defense Federal Acquisition Regulation Supplement (DFARS) 219.502-2-70. Under that provision, the Department of Defense requires that total set- asides for SDB concerns shall be made whenever the following three conditions are met: (1) Offers will be received from at least two responsible small disadvantaged business (SDB) concerns who -- (i) Can comply with the FAR 52.219-14 limitations on subcontracting; or (ii) In the case of SDB regular dealers, will provide the supplies of SDBs . . . . (2) Award will be made at not more than ten percent above fairmarket price; and (3) Scientific and/or technological talent consistent with the demands of the acquisition will be offered. 48 CFR 219.502-2-70 (1991). Valix's protest was denied by the contracting officer on the ground that the instant SDB procurement met the three basic criteria set out in the applicable DFARS provision. Within ten working days of receipt of the agency's reply to its protest, Valix filed a protest to this Board. In its protest to the Board, Valix repeated the contention made in its agency protest that the procurement includes end items for which the only sources are other than SDBs. Subsequent to the prehearing conference convened for this protest on September 14, protester sought to add an additional ground of protest. The proposed amendment observes that the agency denied Valix's original protest because of DFARS 219.502- 2-70 but, in doing so, failed to mention the prohibition against SDB set-asides contained in that same regulation. Valix has in mind the provision under subparagraph (b) which states that a product successfully acquired as a small business set-aside is not to be set aside for SDBs. Valix now wishes to allege, "on information and belief," that the subject procurement is violative of DFARS 219.502-2-70(b) because, "Respondent has previously acquired (by a small business setasides [sic]) the products being acquired in the protested procurement." Respondent objects to the amendment on the ground that it is untimely. Respondent points out that the original agency protest, which was filed on September 1, did not allege the SDB set-aside was incorrect because the items had been part of any prior small business set-aside. Bids were opened on September 3, the date on which the agency also denied Valix's protest. In the mind of respondent, it is now too late for protester to add a new ground of protest to its Board protest. On Friday, September 18, we convened a telephonic conference to discuss protester's motion to amend. At that time, the Board sought to determine precisely what information had led protester to believe that the product being sought in the current SDB set- aside had been the subject of a prior small business set-aside. From counsel's answer to our inquiry, it is clear that in seeking now to amend this protest, Valix knows nothing more on this issue than it knew even before it filed its agency protest. Conference Memorandum (Sept. 18, 1992). The Board's Rule 5(b)(3) states: (i) A protest based upon alleged improprieties in any type of solicitation which are apparent before bid opening or the closing time for receipt of initial proposals shall be filed before bid opening or the closing time for receipt of initial proposals. . . . (ii) A protest, other than one covered in subparagraph (b)(3)(i) of this rule, shall be filed no later than 10 days after the basis for the protest is known or should have been known, whichever is earlier. 48 CFR 6101.5(b)(3). An exception to these provisions exists where an alleged impropriety has been the subject of an agency protest but the protest is not resolved prior to the time for bid opening or the closing time for receipt of proposals. In such situations, the vendor may protest to the Board within ten days of formal notification of, or actual or constructive knowledge of, initial adverse agency action regarding the original protest.[foot #] 1 Id., 5(b)(3)(iii). In this protest, Valix is clearly entitled to take advantage of this exception. However, it is well established that in such cases, when a vendor submits its protest to this Board after denial of the protest at the agency level, the subsequent Board protest must be limited to the issues timely raised in the agency ----------- FOOTNOTE BEGINS --------- [foot #] 1 The same rule also requires, however, that the initial protest to the agency be filed in accordance with the applicable time limits in subparagraphs (b)(3)(i) and (ii). ----------- FOOTNOTE ENDS ----------- protest. International Technology Corp., GSBCA 9967-P, 89-2 BCA 21,741, 1989 BPD 99. In opposing protester's amendment, respondent has provided us with a copy of the original agency protest. In it we find no criticism of respondent's SDB set-aside on the basis that it fails to recognize an exception for products previously obtained through non-SDB set-asides. Neither are we convinced that this issue is somehow implicit in protester's otherwise general criticisms of the Army's SDB set-aside as being less competitive than a normal set-aside. The less competitive character of this procurement is simply the inevitable consequence of the regulatory scheme upon which such set-asides are based. We, therefore, deny protester's motion to amend as untimely. To the extent the proposed amendment can be said to concern an alleged impropriety apparent on the face of the invitation for bids and was not alleged in the agency protest, it is clearly now untimely under Rule 5(b)(3)(i) and (iii). On the other hand, if the factual basis for pleading this additional ground for protest "on information and belief" is the same as it was prior to the agency protest, then clearly, under Rule 5(b)(3)(ii), it is also untimely since it was known for more than ten days prior to the filing of the motion to amend. Decision Protester's motion to amend is, therefore, DENIED. Any inquiries made by protester on this point during discovery may be disregarded by respondent as irrelevant to the matters which actually are in issue. _______________________ EDWIN B. NEILL Board Judge We concur: _______________________ _______________________ ROBERT W. PARKER JOSEPH A. VERGILIO Board Judge Board Judge