B-180421, FEB 5, 1974

B-180421, FEB 5, 1974

WHERE PROTESTER WAS NOTIFIED BY AGENCY BY LETTER DATED DECEMBER 3, 1973, THAT ITS PROTEST AGAINST AWARD TO OTHER OFFEROR WAS DENIED, AND PROTESTER FILED PROTEST WITH THIS OFFICE ON JANUARY 14, 1974, PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED. THIS OFFICE'S INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.1 ET SEQ.) REQUIRE SUCH PROTEST TO BE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION, AND AGENCY'S DECEMBER 3 LETTER CONSTITUTED SUCH ADVERSE ACTION, DESPITE BIDDER'S FURTHER LETTER OF PROTEST TO AGENCY.

TO HYPER-AIR ENGINEERING COMPANY:

REQUEST FOR QUOTATIONS/REQUEST FOR PROPOSALS (RFQ/RFP) N66001-74-R 0034 WAS ISSUED BY THE NAVAL UNDERSEA CENTER, DEPARTMENT OF THE NAVY, PASADENA, CALIFORNIA, TO PROCURE A HI PRESSURE AIR COMPRESSOR. HYPER AIR ENGINEERING COMPANY (HAE) SUBMITTED AN OFFER OF $14,232.10 FOR THE ITEM, BUT THE AWARD OF THE CONTRACT WAS MADE TO AMERICAN COMPRESSOR COMPANY (AMERICAN) ON ITS OFFER OF $15,120.00.

HAE STATES THAT BY LETTER OF OCTOBER 17, 1973, IT RECEIVED NOTIFICATION FROM THE NAVY OF THIS AWARD, AND THAT ON OCTOBER 25, 1973, IT PROTESTED IN WRITING TO THE NAVY CONCERNING THIS ACTION. HAE CLAIMED THAT AMERICAN WAS NOT THE LOW BIDDER AND THAT THE AMERICAN UNIT COULD NOT MEET THE SPECIFICATION'S WEIGHT REQUIREMENTS. IN ADDITION, HAE PROTESTED THAT THE AWARD DID NOT COMPLY WITH THE BUY-AMERICAN ACT REQUIREMENTS.

BY LETTER DATED DECEMBER 3, 1973, THE NAVY RESPONDED TO THIS PROTEST. JUSTIFIED THE CONTRACT AWARD ON THE GROUNDS THAT THE SUCCESSFUL OFFEROR WOULD FURNISH AN ASSEMBLY WHICH CAME CLOSEST TO MEETING THE NAVY'S CRITICAL LIGHTWEIGHT REQUIREMENTS WHEREAS HAE'S LIGHTEST ASSEMBLY FELL SHORT OF THE NAVY'S HORSEPOWER REQUIREMENTS. MOREOVER, HAE OFFERED TWO OPTIONS PROVIDING FOR DELIVERY WITHIN AN ACCEPTABLE PERIOD, HOWEVER, BOTH OPTIONS INCORPORATED ENGINES OF FOREIGN MANUFACTURE. HAE'S THIRD OPTION OF DOMESTIC MANUFACTURE AND AN IDENTICAL ENGINE OPTION OFFERED BY AMERICAN WERE REJECTED BECAUSE OF THE EXCESSIVE TIME REQUIRED FOR DELIVERY.

BY LETTER DATED JANUARY 9, 1974, HAE AGAIN PROTESTED THIS AWARD TO THE NAVY AND OFFERED A REBUTTAL OF THE NAVY AWARD JUSTIFICATION. BY LETTER DATED JANUARY 10, 1974, RECEIVED IN THIS OFFICE ON JANUARY 14, 1974, HAE FILED A FORMAL PROTEST WITH THIS OFFICE AGAINST THE AWARD OF THE CONTRACT TO AMERICAN.

STANDARDS APPLICABLE TO THE TIMELINESS OF PROTESTS ARE PROVIDED IN SECTION 20.2(A) OF THIS OFFICE'S INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.2(A)) IN PERTINENT PART, AS FOLLOWS:

"(A) *** IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. ***"

IN THIS CASE, WE NOTE THAT HAE PROTESTED THE AWARD OF THE CONTRACT IN QUESTION TO THE NAVY BY LETTER DATED OCTOBER 25, 1973. NAVY'S LETTER TO HAE DATED DECEMBER 3, 1973, ADVISED THAT THE NAVY CONSIDERED THIS AWARD VALID AND INFORMED HAE OF THE NAVY'S JUSTIFICATION OF ITS AWARD ACTION AND OF THE REASONS FOR REJECTING HAE'S BID. WE BELIEVE IT IS CLEAR THAT NAVY'S LETTER OF DECEMBER 3 CONSTITUTES THE "NOTIFICATION OF ADVERSE AGENCY ACTION" FROM WHICH TIME HAE HAD FIVE DAYS IN WHICH TO PROTEST TO GAO. 52 COMP. GEN. 20, 22-23 (1972); B-176717(1), FEBRUARY 8, 1973; B- 175779, OCTOBER 13, 1972. AS HAE'S LETTER OF PROTEST TO GAO WAS FILED MORE THAN A MONTH AFTER THE NAVY INITIALLY DENIED ITS PROTEST, HAE HAS NOT COMPLIED WITH THE TIME REQUIREMENTS OF 4 CFR 20.2(A).

ACCORDINGLY, THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED.