BNUMBER:  B-276676 
DATE:  April 21, 1997
TITLE: Matter of:Fumigadora Popular, S.A.

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Matter of:Fumigadora Popular, S.A.

File:     B-276676

Date:April 21, 1997

Jed L. Babbin, Esq., Tighe, Patton, Tabackman & Babbin, L.L.C., for 
the protester.
Diane D. Hayden, Esq., Department of the Navy, for the agency.
Adam Vodraska, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Post-debriefing protest of rejection of bid as unreasonably low is 
untimely under the Bid Protest Regulations where it was filed more 
than 10 days after the protester received written notice from the 
agency of the basis for rejection of its bid; since the procurement 
was not conducted on the basis of competitive proposals, the 
timeliness rules based on requested and required debriefings are not 
applicable.

DECISION

Fumigadora Popular, S.A., protests the rejection of its bid as 
unreasonably low by the Department of the Navy, Naval Facilities 
Engineering Command, Resident Officer in Charge of Construction, 
Panama Canal Area, under invitation for bids (IFB) No. 
N62470-96-B-4189, for pest control services.

We dismiss the protest.

At the November 20, 1996, bid opening, the bids ranged in price from 
Fumigadora's low bid of $70,782 to a high bid of $950,000.  The Navy's 
estimate was $230,000.  Shortly after bid opening, the Navy asked 
Fumigadora to confirm its bid price, which it did on December 16.  In 
follow-up letters to the Navy dated December 17 and December 26, 
Fumigadora explained that it was able to provide the services for the 
low price because it was attempting to expand its business and its 
overhead costs were already absorbed by its subcontracts with an Army 
contractor.

On March 13, 1997, the protester inquired of the Navy as to the status 
of contract award.  The following day, March 14, the protester 
received by facsimile transmission a copy of a letter addressed to 
Fumigadora from the contracting officer, which was dated February 13, 
stating that:

     "[a]lthough your firm was considered to have the expertise 
     necessary to perform the work outlined in the specification, your 
     bid has been rejected because your extremely low bid amount is 
     not a fair and reasonable price as it is evident that the costs 
     to perform the work required by the contract exceed your bid 
     price.  You have indicated in correspondence that many of your 
     overhead costs, including labor salaries are being covered by 
     other contracts."

The letter also stated that the contract had been awarded to TNT 
Control de Plagas.  Fumigadora had not received the letter earlier 
because the letter had apparently been mailed to the wrong address.

Following its March 14 receipt of the contracting officer's letter, 
Fumigadora requested a debriefing, which the Navy provided on March 
31.  According to Fumigadora, Navy officials stated at the debriefing 
that they had rejected the bid because they were "uncertain that the 
company could perform at its low price if it should lose the jobs that 
it is performing on subcontracts for an Army contractor that entail 
the same kind of work as that covered by the Navy contract in 
question."  Fumigadora filed its protest with our Office on April 4, 
contending that none of the criteria of Federal Acquisition Regulation  sec.  
14.404-2 pertaining to the rejection of individual bids were 
applicable here or cited by the Navy as a reason for rejecting 
Fumigadora's bid.

Our Bid Protest Regulations contain strict rules for the timely 
submission of protests.  Under these rules, a protest such as 
Fumigadora's, based on other than alleged improprieties in a 
solicitation, must be filed not later than 10 calendar days after the 
protester knew, or should have known, of the basis for protest, 
whichever is earlier; in the case of a protest challenging a 
procurement conducted on the basis of competitive proposals under 
which a debriefing is requested and, when requested, is required, a 
protest filed not later than 10 days after the date on which the 
debriefing is held will be timely.  4 C.F.R.  sec.  21.2(a)(2) (1997).  
These timeliness rules reflect the dual requirements of giving parties 
a fair opportunity to present their cases and resolving protests 
expeditiously without disrupting or delaying the procurement process.  
Professional Rehabilitation Consultants, Inc., B-275871,
Feb. 28, 1997, 97-1 CPD  para.  94.

Fumigadora contends that it did not learn of the basis for its protest 
until the March 31 debriefing, and since it filed its protest on April 
4, its protest was timely filed within 10 calendar days of when it 
knew the basis of its protest, as required.  In this regard, 
Fumigadora maintains that neither the contracting officer's letter 
received on March 14, nor any events prior to the March 31 debriefing, 
gave Fumigadora any actual or constructive notice of the grounds of 
this protest.  Specifically, Fumigadora asserts that the contracting 
officer's letter failed to adequately explain, or give plausible 
reasons for, the rejection of the bid, and that the "real reason" for 
the rejection of Fumigadora's bid was only revealed during the March 
31 debriefing.

While Fumigadora may have questioned the adequacy or plausibility of 
the reasons for the rejection of its bid given by the contracting 
officer in her letter, and consequently sought the debriefing, the 
contracting officer's letter, as stated by one of Fumigadora's own 
representatives, "constituted notice that the contract had been 
awarded to another bidder and that [Fumigadora's] bid had been 
rejected."  Moreover, according to another Fumigadora representative 
in correspondence to the Navy dated March 17, "[w]hat the [contracting 
officer's] letter does contain is the reason why [Fumigadora's] bid 
was rejected."  Thus, Fumigadora knew the underlying basis for its 
April 4 protest--the rejection of its bid as unreasonably low 
priced--on March 14.  Even the "real reason" Fumigadora speculates for 
the rejection of its bid and which it claims was revealed only at the 
March 31 debriefing--namely, some type of inadequately documented 
"risk analysis" allegedly conducted by the contracting officer 
relating to Fumigadora's other contracts--was reasonably apparent from 
the contracting officer's letter in which she referred to the other 
contracts in rejecting Fumigadora's bid.  Because Fumigadora's protest 
was filed with our Office more than 10 working days after Fumigadora 
knew the basis for protest, the protest is untimely and not for 
consideration on the merits.  Bid Protest Regulations, 4 C.F.R.  sec.  
21.2(a)(2);  see Western State Management Servs., Inc., B-214427, Mar. 
13, 1984, 84-1 CPD  para.  305 at 2; aff'd, B-214427.2, Apr. 17, 1984, 84-1 
CPD  para.  437. 

Although Fumigadora's protest was filed within 10 days of a 
debriefing, we note that the challenged procurement was not conducted 
on the basis of competitive proposals, and the provision in our 
Regulations relating to the timeliness of protests based on requested 
and required debriefings, 4 C.F.R.  sec.  21.2(a)(2), is therefore 
inapplicable. 

The protest is dismissed.

Comptroller General
of the United States