MOTION TO DISMISS AS UNTIMELY FILED GRANTED: August 4, 1993 GSBCA 12505-P TRI-COMM, INC., Protester, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Mychal H. Walker, President of Tri-Comm, Inc., Norcross, GA, appearing for Protester. Paul Grabelle, Dennis Foley, and Philip Kauffman, Office of General Counsel, Department of Veterans Affairs, Washington, DC, counsel for Respondent. Before Board Judges DEVINE, NEILL, and GOODMAN. GOODMAN, Board Judge. On July 26, 1993, Tri-Comm, Inc. (Tri-Comm or protester) filed a protest concerning the requirements of RFP 548-02-93 (the solicitation) for a telephone and paging system for the Veterans Administration Medical Center to be constructed in West Palm Beach, Florida, by the Department of Veterans Affairs (VA or respondent). Respondent has moved to dismiss the protest as untimely. For the reasons stated below, we grant respondent's motion and dismiss the protest. Background The solicitation was issued June 16, 1993, for the supply and installation of a telephone and paging system for the Veterans Administration Medical Center to be constructed in West Palm Beach, Florida. Exhibit 1.[foot #] 1 The solicitation required offerors to furnish a bid guarantee and the awardee to furnish a performance bond. Exhibit 2. The original closing date for receipt of initial proposals was July 20, 1993. Exhibit 1. Amendment 1 to the solicitation, issued July 6, 1993, extended the closing date for receipt of initial offers to July 22, 1993, at 3:00 p.m. local time. Exhibit 3. Tri-Comm sent a letter dated July 13, 1993, to the contracting officer which stated, in relevant part: [D]ue to the enormous detail and information required to ensure an appropriate response, we respectfully request a (30) day extention [sic] to appropriately respond. We are quite capable of providing the required information that is requested in The RFP as well as, we are capable of performing all of the tasks necessary to complete the project, but the time frame required for the proposal submission is very ambitious. The fact that the site visit was on July 6, 1993 and the submission date is scheduled only twelve (12) days later, in addition, with the requirement for a bid bond it does not allow ample time to review the proposal, make corrections, or get sub-contractors coordinated and allow our bonding company enough time to prepare the bid bond for submission on July 20 or July 22. Exhibit 4. The remainder of Tri-Comm's letter noted the level of detail required in the proposal, that the proposal was required to be submitted in triplicate and on a computer disk, and that an offeror would be required to mail the proposal no later than the fifth calendar day before the date specified for receipt of offers if it intended to respond by mail. By letter dated July 15, 1993, the VA contracting officer responded to Tri-Comm's letter dated July 13, 1993, and denied Tri-Comm's request for an extension of time for submission of proposals, stating that offerors had thirty-six days from the date of issuance of the RFP to submit proposals, which the VA considered "ample time for preparation and well within the guidelines of the Federal Acquisition Regulations and the Veterans Administration Acquisition Regulations." Exhibit 5. The contracting officer also replied to the other concerns ----------- FOOTNOTE BEGINS --------- [foot #] 1 References to exhibits are to those attached to respondent's motion to dismiss. ----------- FOOTNOTE ENDS ----------- raised by Tri-Comm in its letter by stating that obtaining subcontractors and bonds are part of normal business practices, the level of detail required in the offerors' proposals was necessary so that the VA could be assured the offeror understood the solicitation requirements, and the requirement for submission of the proposal on a computer disk is common practice today. The contracting officer also stated that the method of delivery of the proposal was the responsibility of the offeror. The contracting officer's letter dated July 15, 1993, was telecopied to Tri-Comm that same day. Exhibit 5. Amendment 2 to the solicitation, issued July 20, 1993, stated that "[t]he hour and date specified for receipt of Offers is not extended. Proposals are due July 22, 1993 at 3:00 PM local time." Exhibit 7. Protester submitted a proposal in response to the solicitation on July 22, 1993, and filed this protest on July 26, 1993. The protest complaint reads in relevant part: [T]he contracting officer . . . constructed a RFP that required enormous detail and information for submission as well as a bid bond in an extremely short time frame. The Veteran Administration in the past two (2) years since MIRMO (Medical Information Resource Management Office) has taken over the procurement process of telephone systems have [sic] not required bid bonds nor performance and payment bonds. Most notably, on the past nine (9) VA Medical Centers won by small businesses and 8(a) firms bonds were not required [the letter listed nine previous solicitations which Tri- Comm alleges did not contain bonding requirements] . . . . Due to the enormous information requested in RFP 548-02-93, the unrealistic time frame set for the response and the fact that bid bonds were required for submission on RFP 548-02-93 and (bonds) not required in the previous submissions, we respectfully request that RFP 548-02-93 . . . be re-bid without bonding requirements. Complaint at 1-2. During a prehearing conference with the Board on July 28, 1993, respondent's counsel informed the Board that Tri-Comm's proposal was received by respondent after the closing time for receipt of proposals. Tri-Comm's president stated that the proposal was delivered by commercial airline, and that he had received a written statement from the airline that the airplane had arrived later than scheduled. Respondent's counsel also stated during the prehearing conference that respondent would file a motion to dismiss the protest as untimely, as the protest is based upon alleged improprieties in the solicitation which were apparent before closing time for receipt of proposals and, therefore, should have been filed before the closing time for receipt of initial proposals. Protester's president stated that he had sent a letter to the contracting officer on or about July 13, 1993, concerning the solicitation requirements before the date for receipt of proposals, and had received a written response. As the issue of timeliness was raised in the prehearing conference, the Board directed respondent to file its motion and address the issue of whether the contracting officer construed protester's letter of July 13, 1993, as a protest to the agency. Respondent filed its motion to dismiss, which we grant as discussed below. Discussion Respondent's motion to dismiss alleges that this protest is based upon alleged improprieties in the solicitation which were apparent to the protester before the closing time for receipt of proposals. Protests based upon improprieties in the solicitation must be filed before the date for receipt of proposals. Thus, according to respondent, the protest is untimely. Protester maintained in the prehearing conference that its letter to the contracting officer dated July 13, 1993, was a protest which raised the issues addressed in its protest to this Board. Thus, protester contends that the protest to this Board is timely, as it was filed within ten working days of its receipt of the contracting officer's denial of its agency protest.[foot #] 2 We must first review protester's July 13, 1993, letter to determine whether it was a protest, as the determination as to whether a document constitutes a protest is one to be made by this Board. Electronic Systems & Associates, Inc., GSBCA 11883- P, 93-1 BCA 25,278, 1992 BPD 187. A "protest" is defined as "a written objection by an interested party to a solicitation by a Federal agency for bids or proposals for a proposed contract for the procurement of property or services . . . ." 40 U.S.C. 759(f)(9) (1988). Both the Federal Acquisition Regulation (FAR) and VA Acquisition Regulation (VAAR) require that a protest contain: (1) the name, address, and telephone number of the protester; (2) the solicitation or contract number; (3) a detailed statement of the legal and factual grounds for the protest, including copies of relevant documents; (4) a request for a ruling by the agency; and (5) a statement as to the form of relief requested. 48 CFR ----------- FOOTNOTE BEGINS --------- [foot #] 2 Protester did not file a response to respondent's motion. ----------- FOOTNOTE ENDS ----------- 33.103(b)(3) (1992) (FAR 33.103(b)(3)); 48 CFR 833.103(b)(4) (1992) (VAAR 833.103(b)(4)). Respondent considered Tri-Comm's letter of July 13, 1993, a request for additional time to prepare a proposal, and not a protest of the terms of the solicitation. A plain reading of Tri-Comm's letter supports respondent's interpretation. The letter was not characterized by Tri-Comm as a protest. While Tri-Comm noted the detailed response required and described the difficulties it believed it would encounter in preparing a response in the time allowed (coordination of subcontractors, obtaining bid bond, submission on floppy disk, and timely delivery), it stated that "[w]e are quite capable of providing the required information that is requested in The RFP as well as, we are capable of performing all of the tasks necessary to complete the project . . . ." Tri-Comm's letter contained no allegation that the time allowed for response to the solicitation violated any statute or regulation, nor did it allege that the response time precluded any offeror, including Tri-Comm, from responding to the solicitation. Rather, Tri-Comm only stated difficulties which it anticipated in gathering information and meeting the closing date. The contracting officer did not construe this letter as a protest because the letter stated no legal or factual grounds challenging any term of the solicitation and emphasized Tri- Comm's ability to meet the solicitation requirements. In response, the contracting officer noted that the response time was not in violation of the FAR and the VAAR.[foot #] 3 Despite the difficulties Tri-Comm anticipated in preparing a proposal, it did submit a proposal to respondent to be delivered on the date for receipt of proposals. We agree with respondent that Tri-Comm's July 13, 1993, letter was a request for an extension of the response date, and not a protest. In its protest to this Board, Tri-Comm again notes the amount of detail required in the proposal, references what it considers the "extremely short time frame" for response, protests the inclusion of bonding requirements in the solicitation, and requests the procurement be re-bid without the bonding requirements. The bonding requirements were clearly apparent to Tri-Comm before the closing time for receipt of proposals. Tri- Comm's letter of July 13, 1993, indicates Tri-Comm was concerned about its bonding company having enough time to prepare the bid bond for submission before the date for receipt of proposals, but did not protest the inclusion of the bonding requirements. ----------- FOOTNOTE BEGINS --------- [foot #] 3 FAR 5.203(b) requires that solicitations allow thirty days for response. The VAAR, which is to be utilized in conjunction with the FAR (VAAR 801.101) does not modify this requirement for procurements by the VA. ----------- FOOTNOTE ENDS ----------- Board Rule 5[foot #] 4 reads, in relevant part: (3) Protests. A protest will be considered by the Board if it includes the information required by Rule 7(b)(2) and is timely filed. (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. . . . . (iii) If a protest has been filed initially with the agency, any subsequent protest to the Board filed within 10 days of formal notification of, or actual or constructive knowledge of, initial adverse agency action will be considered, provided that the initial protest to the agency was filed in accordance with the applicable time limits in subparagraphs (b)(3)(i) and (ii) of this rule. As this protest is based upon alleged improprieties in the solicitation which were apparent to Tri-Comm before the closing time for receipt of proposals, and no prior protest had been filed with the agency, pursuant to Rule 5(b)(3)(i) such a protest must be filed before the closing time for receipt of initial proposals. This protest was filed four days after the closing time and was, therefore, untimely. Decision Respondent's motion to dismiss this protest as untimely is GRANTED. The protest is DISMISSED. The suspension order dated July 29, 1993, hereby lapses. ___________________________ ALLAN H. GOODMAN Board Judge We concur: ___________________________ ___________________________ DONALD W. DEVINE EDWIN B. NEILL Board Judge Board Judge ----------- FOOTNOTE BEGINS --------- [foot #] 4 48 CFR 6101 (1992).