In re PRC Government Information Systems
| Decision Date | 23 September 1982 |
| Docket Number | B-203731 |
| Parties | MATTER OF: PRC Government Information Systems, |
| Court | Comptroller General of the United States |
DIGEST:
1. Protest that geographic scope of contract. is excessively broad is untimely because, while it was filed with the contracting agency prior to the time for receipt of initial proposals as required, the subsequent protest to GAO was no' filed within 10 days of initial adverse agency action--the passage of the time for receipt of initial proposals without a change in the protested solicitation provision.
2. Where initial incorrect wage determination was deleted from solicitation after the receipt of initial proposals and new wage determinations were added, the contracting agency was not required to cancel the solicitation and resolicit to include firm that protested initial wage determination, but did not submit a proposal, where the initial wage determination was not void ab initio, where the change resulting from the new determination was not so substantial as to require a complete revision of the solicitation, and where the protester has not shown that it was reasonably prevented from submitting a competitive proposal.
PRC Government Information Systems, division of Planning Research Corporation (PRC), protests request for proposals No CDPP-W-80-H-A0008-74for ADP support services, issued by the General Services Administration (GSA). Essentially, PRC protests GSA's decision not to cancel the solicitation and reopen competition when the Department of Labor (DOL) ruled, in response to a protest by PRC, that the Service Contract Act, 41 U.S.C. § 351, et seq. (1976), wage determination included in the solicitation was improper. Instead, GSA amended the solicitation to delete the original wage determination and include the newt correct wage determinations. Since PTC had not submitted a proposal claiming that the erroneous wage determination trade that too risky, PRC contends that GSA's action prevented it from joining the competition.
We deny this portion of the protest.
PRC also protests the geographic scope of potential performance of the contract, contending that it is so broad that task orders issued for services outside the so-called primary and secondary areas will constitute improper sole-source procurements. This issue was not timely raised and therefore, we dismiss it.
The solicitation contemplated a 1-year contract with two 1-year options for a wide range of ADP technical support services. This contract is the mandatory source for the requirements of GSA and several other Federal agencies for needs within the primary and secondary areas. The primary area is composed of 10 sites and any location within a specific mile radius of each site. The secondary area includes all of GSA regions 2 and 4 and a portion of GSA region 3. In addition, the solicitation provided that the contract "may be used" to provide coverage in other GSA regions that do not have existing contracts for the services, or to provide coverage for services that exceed the scope of an existing regional contract.
Prices were to be submitted on a fixed-price hourly basis for 32 separate categories of employees. These hourly rates were to be the sole compensation for work performed. There were three separate price scheduled within which the geographical areas were grouped.
The solicitation estimated hours of work for the various locations, but no specific amount of work was guaranteed. The contractor would be issued task orders, which it was to respond to by submitting proposals showing how the work would be done and how many hours of labor would be provided in each category. The number of hours proposed for each category multiplied by the fixed contract price for that category and then totaled, would yield the proposed fixed price for the task. There is a maximum dollar amount of $500, 000 per task order.
The solicitation also included the standard Service Contract Act clause and wage determination No. 77-117, January 30, 1981. The wage determination listed the Federal Data Processing Center, Huntsville, Alabama (Lie contract's largest single work site), as the "locality." However, the wage determination also provided that it was applicable to all service employees employed on the contract, regardless of the place of performance. During the preproposal conference, GSA stated that the wage determination was a "national" wage determination.
By letter of April 2, 1981, PRC complained, among other things, that the nationwide wage determination was improper, that the scope of the contract was too broad and that it would be difficult to submit an offer as the solicitation stood. PRC asked that the solicitation be amended. GSA amended the solicitation to change some features that PRC had complained of, but did not change the wage determination or the scope of the contract. GSA also responded to PRC's complaints by letter of April 17, 3981, stating why it disagreed with PRC's position. On April 27, 1981, prior to the time set for receipt of Proposals on that day, PRC protested to GSA, again complaining that the nationwide wage determination was improper and that the contract scope was overly broad. PRC also informed GSA that these problems with the solicitation ware so serious as to prevent PRC from submitting an offer and that PRC felt that competition was restricted by the problems. PRC asked that the solicitation be canceled and reissued with the objectionable elements removed or changed. The protest was referred to DOL for its comments.
Two offers were received in response to the solicitation from the incumbent Computer Sciences Corporation (CSC) and from Computer Data Systems, Inc. (CDS), GSA then began the process of evaluation and negotiation.
On June 8, 1981, GSA received DOL'S letter of June 4, 1981, which advised that the nationwide wage determination contained in the solicitation was inappropriate. DOL issued 14 new wage deteminations-13 local determinations for the primary and secondary areas and one nationwide determination to cover task orders outside the primary and secondary areas, On June 8, 1981, GSA indicated to PRC that it did not intend to cancel and resolicit, but that it would only amend the solicitation. That amendment (No, 3), incorporating the new wage determinations and permitting the two firms that had submitted offers to revise price proposals, was issued with an effective date of June 11, 1981. Amendment No. 4, changing the price schedules, was issued on June 16, 1981. PRC then protested to our Office on June 18, 1981. Award was subsequently made to CDS.
PRC argues that the portion of the contract covering services outside the primary and secondary areas is impermissibly broad and that task orders issued for work in that Area will be tantamount to impermissible sole-source contracts. PRC contends that such task orders should be competitively procured separately.
This is a protest of an alleged solicitation defect apparent on the face of the solicitation. To be timely, it must be filed with GAO or the contracting agency prior to the time for receipt of initial proposals. 4 C.F.R. § 21.2(b)(1) (1982)9 DRC filed its protest with GSA prior to that time. When a protest is timely filed initially with the contracting agency, to be timely, any subsequent protest to GAO must be filed within 10 days of actual or constructive notice of "initial adverse agency action." 4 C.F.R. § 21.2(a) (1982). Where, as here, the agency protest is of an apparent solicitation defect, the passage of the time for receipt of initial proposals without correction of the defect is initial adverse agency action. McCaleb Associates, Inc., B-197209 September.2, 1980, 80-2 CPD 163, PRC-did not file its protest here within 10 working-days of the time for receipt of initial proposals therefore, it is untimely and will not be considered.
PRC argues that the protest is timely for two reasons. First, PRC contends that because it understood that GSA might not fully consider its protest prior to the closing date for receipt of initial proposals and, therefore, asked for cancellation and resolicitation as a remedy, closing is not initial adverse agency action. Second, PRC argues that since It also protested orders to be issued under the contract, it was not required to protest until each order is issued. In this regard, PRC cites our decision in Tosco Corp., B-187776, May 10, 1977 77-1 CPD 329, for tile proposition that a protester need not file a protest concerning one of a series of procurement actions at the beginning of the series. Alternatively, PRC contends that even if the issue is untimely, it should be considered under our "significant issue" exception. 4 C.F.R. § 21.2(c) (1982).
The nature of the complaint, not the relief requested, is relevant to what constitutes initial adverse agency action. PRC complained of an alleged defect in the solicitation. Once GSA accepted initial proposals without having corrected the all aged deficiency, it was taking action adverse to PRC's position, and PRC was required to protest to GAO within 10 working days. PRC's argument that it was also protesting the issuance of any orders under the contract does not make the protest timely. It was obvious from the solicitation that such orders could be issued once the contract was awarded. The complaint is really against the solicitation provision. The Tosco decision is inapposite in these circumstances and, in any event, does not stand for the proposition for which PRC cited it.
Finally the matter is not for consideration under our "significant issue" exception. This exception is to be used sparingly--only when the subject of the protest is a matter of widespread interest to the procurement...
To continue reading
Request your trial