IBSS appeal on NMC RFP for copiers denied due to untimely protest
(February 10, 2009)
OPA released its decision on the appeal filed by Island Business Systems & Supplies (IBSS) resulting from the denial of its protest of NMC RFP 08-007 for copiers by the President of the Northern Marianas College (NMC). In its decision, OPA found that IBSS failed to file its original protest in a timely manner, and thus NMC was correct in its determination to essentially deny the protest.
According to the NMC procurement regulations, any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the President. The protest shall be received by the President in writing within ten (10) days after such aggrieved person knows or should have known of the facts giving rise thereto ....
Similarly, under the CNMI's Procurement Regulations, any actual or prospective bidder, offeror, or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the P&S Director. The protest shall be received by the P&S Director in writing within ten days after such aggrieved person knows or should have known ofthe facts giving rise thereto ....
IBSS was notified by letter dated March 4,2008 that another company was selected to provide the copiers. IBSS did not allege delay in receipt of that letter. Instead, in its April 30, 2008 protest, IBSS argued that its employee after puzzling over [the letter dated March 4, 2008, wherein NMC notified IBSS that it did not receive the contract award because "another company offered a lower fee when compared with your offer"], the IBSS employee wrote NMC a letter on March 28, 2008 requesting all documents related to the solicitation.
While it is possible that IBSS did not know how it was aggrieved on March 4, 2008, it certainly knew that it was aggrieved. It could have at that time requested all the documents from NMC, thereby possibly staying the time required for its filing of a protest. Instead, it waited 16 working days ofthe College to request information.
IBSS officially protested NMC's award ofthe contract on April 30, 2008, when it was not timely. NMC did not write a decision on the protest, but rather provided a "courtesy" response eight months later. NMC seems to believe that since it did not write a decision on the protest, OPA is precluded from writing a decision on the appeal. It is, perhaps, semantic, whether OPA refuses to accept the appeal or accepts it and then determines it not to be timely, but OPA believes that all its actions, as well as those ofthe College, should be on the record.
Based on the foregoing, OPA finds the College properly denied IBSS' protest as untimely.
