Appeal from the Superior Court of the District of Columbia (MPA 9-01) (Honorable Rhonda Reid Winston, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID and GLICKMAN, Associate Judges, and SCHWELB, Senior Judge.*fn1
Appellant IIU Consulting Institute, Inc. ("IIU"), and appellee Trifax Corporation, Inc. ("Trifax"), were competing bidders for a District of Columbia government contract. After the contract was awarded to IIU, Trifax filed a protest with the Contract Appeals Board. Several weeks later, Trifax amended its protest to raise additional grounds for overturning the award. The Contract Appeals Board sustained the protest on one of the added grounds, rejecting the argument that it was untimely, and the Superior Court upheld the Board.
Bid protests are subject to strict statutory time limitations, and the Board is without jurisdiction to consider a protest that is untimely. Trifax was required to raise the protest ground on which it prevailed no later than ten business days after it knew or should have known of that ground. We conclude that Trifax waited too long. Accordingly, we reverse.
On April 4, 2000, the District of Columbia Office of Contracting and Procurement ("OCP") issued an invitation for bids ("IFB") on a contract to provide the Department of Health with the services of two registered pediatric nurses. The nurses were wanted to conduct home visits with children enrolled in the Birth to Eight Project of the Preventive Health Services Administration for one base year and, at the government's option, up to four additional years. The IFB specified that the contract would be a "firm fixed price indefinite quantity contract with a fixed unit price," meaning that each nurse could be called upon to work anywhere between ten and 1,386 hours a year, with payment to the contractor based on a fixed hourly rate. The contract was to be awarded to "the lowest responsive responsible bidder." In the parlance of government contracting, a "responsive" bidder is one whose bid "conforms to the material elements of an invitation to bid"; a "responsible" bidder is one who "has the necessary resources and experience to perform a given job." American Combustion, Inc. v. Minority Bus. Opportunity Comm'n, 441 A.2d 660, 671 (D.C. 1982) (citations and internal quotation marks omitted). If a bid is not responsive, it cannot be cured after the bid is open and must be rejected. Id. "A lack of bidder responsibility is curable after the bids are opened," however. Id.
In addition to other requested information, the IFB required each bidder to submit the names and resumes of the "key personnel" (i.e., the nurses) who would perform the proposed contract. Because "the personnel specified in the contract are considered to be essential to the work being performed hereunder," the IFB explained, the contractor would have to give advance notice and justify any change in personnel.
The OCP received eight bids in response to the IFB, including submissions from IIU and Trifax. The bids were opened for public inspection on May 12, 2000. IIU's bid quoted a total price of $367,549, with a base year price of $74,566.80 (all figures based on 1,386 hours of work by each nurse). This was the second lowest bid, and it was approximately twenty-five percent less than Trifax's bid of $479,247. IIU's bid did not include the names or resumes of the nurses who would perform the contract. The OCP specifically noted the lack of resumes in IIU's submission on the Bid Abstract Form, a summary of the information in all the bids that was prepared at the time of the bid opening. Nonetheless, on June 29, 2000, after eliminating the lowest bidder as non-responsible, the OCP awarded the contract to IIU. The base year price was fixed at $66,520, a reduced figure that reflected the contracting officer's unilateral decision to lower the maximum annual number of hours that could be required under the contract from 1,386 to 1,236 hours per nurse.
As an unsuccessful bidder, Trifax received formal notification of the award to IIU on August 15, 2000. The notification stated that the solicitation was awarded to IIU in the amount of $66,520 without explaining the discrepancy between that figure and the higher base year price quoted in IIU's bid. After attending a debriefing session with the contracting officer on August 22, Trifax filed a pro se bid protest with the Contract Appeals Board ("CAB") on August 30, 2000. The protest challenged the award to IIU on several grounds, the principal one being that IIU was not a responsible bidder because it had not committed to pay the minimum wages and benefits required by a U.S. Department of Labor Wage schedule incorporated in the IFB and the contract.*fn2 This claim was premised on Trifax's mistaken assumption that the approved base year price of $66,520 was for two nurses working the original maximum annual number of hours specified in the IFB. Even after being debriefed on August 22, Trifax was unaware that the base year price was low because the maximum number of hours had been reduced.*fn3
Trifax's August 30 protest did not raise the failure of IIU's bid to identify and provide the resumes of the key personnel who were to perform the contract. Nor did the protest expressly charge that IIU's bid was not responsive to the IFB.
On September 20, 2000, the District filed with the CAB an OCP report on the contract award together with a motion to dismiss Trifax's protest. This filing disclosed (apparently for the first time) that the contract award was based on a lower annual maximum number of hours than the maximum set forth in the IFB (thereby demonstrating that Trifax's minimum wage claim was in error). The District also contended that Trifax's protest was untimely under the applicable statute, which in pertinent part provided that "protests shall be filed not later than 10 business days after the basis of protest is known or should have been known, whichever is earlier." (Former) D.C. Code § 1-1189.8 (b)(2) (1999), recodified as D.C. Code § 2-309.08 (b)(2) (2001). Alternatively, the District asserted that Trifax was not aggrieved by the award and lacked standing to protest it because another bidder, Motir Services, Inc. ("Motir"), would have been next in line for the contract had IIU's bid been rejected. On October 5, 2000, however, the District acknowledged in a letter to the CAB that Motir had failed to submit bid prices for the third and fourth option years of the contract,*fn4 and for that reason the District thereafter conceded that Motir's bid was non-responsive.
At an October 13, 2000, status conference, the CAB asked about IIU's failure to submit the names and resumes of nurses with its bid. The following week, on October 20, 2000, Trifax amended its protest to assert, for the first time, that IIU's bid was not responsive because, inter alia, it omitted the key personnel information required by the IFB. Trifax stated that it had not been aware of the material omissions in IIU's bid until it reviewed the government's September 20 motion to dismiss and October 5 letter to the CAB. The District disputed the timeliness of Trifax's new objections to the award.
On January 8, 2001, the CAB issued its decision sustaining Trifax's protest on the sole ground that IIU's bid was not responsive to the IFB because it did not include the names and resumes of the key personnel who would perform the contract.*fn5 Although the CAB did not directly address the timeliness of Trifax's belated assertion of this ground on October ...