B-175779, OCT 13, 1972

B-175779, OCT 13, 1972

BID PROTEST - TIMELINESS - "ADVERSE AGENCY ACTION" DENIAL OF REQUEST BY PANORAMIC STUDIOS FOR RECONSIDERATION OF DECISION B- 175779, JULY 13, 1972, DENYING AS UNTIMELY THEIR PROTEST UNDER AN RFP ISSUED BY THE U.S. ARMY MOBILITY EQUIPMENT COMMAND (MECOM). GAO CONSIDERS THE CONTRACTING OFFICER'S LETTER OF JUNE 25, 1971, DENYING PANORAMIC'S PROTEST AS CONSTITUTING "ADVERSE AGENCY ACTION" WITHIN THE MEANING OF SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS. EVEN IF THE CONSTRUCTION PROPOSED BY PROTESTANT WERE ADOPTED, THE PROTEST STILL WOULD BE UNTIMELY SINCE IT WAS NOT FILED UNTIL APRIL 25, 1972, TWENTY DAYS AFTER THE FINAL LETTER FROM THE COMMANDING GENERAL OF MECOM. ACCORDINGLY, THE PRIOR DECISION IS AFFIRMED.

TO PANORAMIC STUDIOS:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 26 AND AUGUST 30, 1972, WHICH REQUEST RECONSIDERATION OF OUR DECISION B-175779, JULY 13, 1972, DENYING AS UNTIMELY YOUR PROTEST UNDER RFP DAAK01-71-R-6301, ISSUED BY THE ARMY MOBILITY EQUIPMENT COMMAND (MECOM).

OUR DECISION OF JULY 13 CONTAINED THE FOLLOWING PARAGRAPH:

"THE NEXT SENTENCE OF SECTION 20.2(A) (OF OUR 'INTERIM BID PROTEST PROCEDURES AND STANDARDS') STATES THAT WHEN A TIMELY PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, SUBSEQUENT PROTESTS TO OUR OFFICE MUST BE FILED 'WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION' IN ORDER TO BE CONSIDERED. WE ARE ADVISED BY THE ARMY THAT IT DENIED YOUR PROTEST BY LETTER OF JUNE 25, 1971, WHICH YOU SUBSEQUENTLY TOLD THE ARMY WAS TOO BRIEF. IN RESPONSE TO YOUR COMPLAINT, A FULLER EXPLANATION WAS MADE BY THE ARMY ON JULY 7, 1971. IT IS OUR UNDERSTANDING THAT THERE HAS BEEN NO FURTHER CORRESPONDENCE BETWEEN YOU AND THE ARMY CONCERNING YOUR PROTEST. THUS, THE 'NOTIFICATION OF ADVERSE AGENCY ACTION' OCCURRED UPON YOUR RECEIPT OF THE ARMY'S LETTER OF JUNE 25, 1971. AS WE OBSERVED IN OUR LETTER OF MAY 10, 1972, YOU DID NOT FILE A PROTEST UNDER THIS PROCUREMENT WITH OUR OFFICE UNTIL APRIL 25, 1972, 10 MONTHS AFTER YOU HAD BEEN NOTIFIED OF ADVERSE AGENCY ACTION CONCERNING YOUR PROTEST. THEREFORE, YOUR PROTEST IS UNTIMELY UNDER THE PROVISIONS OF THE FOURTH SENTENCE OF SECTION 20.2(A)."

IN YOUR LETTER OF JULY 26, YOU CONTENDED THE UNDERSCORED SENTENCE QUOTED ABOVE WAS IN ERROR IN THAT YOU HAD 12 ITEMS OF CORRESPONDENCE FROM THE ARMY REGARDING YOUR PROTEST WRITTEN BETWEEN JULY 1971 AND APRIL 1972. REQUESTED THAT YOU PROVIDE US WITH COPIES OF THIS CORRESPONDENCE SO THAT WE MIGHT REEXAMINE OUR CONCLUSION THAT YOUR PROTEST WAS UNTIMELY FILED.

THE CORRESPONDENCE WHICH YOU HAVE SUBMITTED IN RESPONSE TO OUR REQUEST SHOWS THAT BY LETTER OF JUNE 21, 1971, YOU PROTESTED TO MECOM AGAINST THE AWARD OF A CONTRACT TO ANOTHER OFFEROR UNDER THE INSTANT RFP. THE CONTRACTING OFFICER RESPONDED TO YOUR PROTEST BY LETTER DATED JUNE 25, 1971, IN WHICH HE EXPRESSED THE CONCLUSION THAT:

"THE (SUCCESSFUL) PROPOSAL WAS SUBMITTED WITHOUT EXCEPTION AND AWARDED TO THE LOW, RESPONSIVE, RESPONSIBLE OFFEROR. THE CONTRACTOR IS OBLIGED TO PERFORM IN ACCORDANCE WITH THE TERMS AND SPECIFICATIONS OF THE CONTRACT AND THE GOVERNMENT WILL INSURE THAT THIS IS ACCOMPLISHED."

THE CONTRACTING OFFICER'S RESPONSE APPARENTLY CROSSED IN THE MAIL WITH YOUR LETTER OF THE SAME DATE TO THE SMALL BUSINESS ADMINISTRATION (SBA) REPRESENTATIVE AT MECOM, IN WHICH YOU CONFIRMED AND AMPLIFIED SOME OF THE COMMENTS MADE TO HIM REGARDING YOUR PROTEST. THE SBA REPRESENTATIVE FORWARDED YOUR LETTER TO THE CONTRACTING OFFICER FOR REPLY. MEANWHILE, YOU HAD RECEIVED THE CONTRACTING OFFICER'S DECISION UPON YOUR PROTEST. A LETTER DATED JULY 2, 1971, YOU ADVISED THE CONTRACTING OFFICER THAT HIS RESPONSE HAD BEEN "CURT", "PEREMPTORY" AND "COMPLETELY UNSATISFACTORY."

ON JULY 7, 1971, THE CONTRACTING OFFICER REPLIED TO YOUR LETTERS OF JUNE 25 AND JULY 2, 1971, EXPRESSING ESSENTIALLY THE SAME CONCLUSION AS THAT QUOTED ABOVE FROM HIS LETTER OF JUNE 25, 1971.

WE BELIEVE THE CONTRACTING OFFICER'S LETTERS OF JUNE 25 AND JULY 7, 1971, MAY FAIRLY BE READ AS DENIALS OF YOUR PROTEST. HOWEVER, AS YOU OBSERVED IN YOUR LETTER OF AUGUST 30, 1972, TO OUR OFFICE:

"IT SHOULD BE NOTED THAT, DESPITE NUMEROUS EFFORTS BY THE ARMY TO TREAT THIS AS A UNILATERAL DECISION, LETTERS FROM US CONTINUE THE PROTEST. THE RECORD SHOWS WE HAVE NOT REGARDED THE MATTER AS CLOSED."

ON JULY 12, 1971, YOU INFORMED THE CONTRACTING OFFICER THAT HIS REPLY OF JULY 7 WAS NOT "RESPONSIVE" TO YOUR PROTEST AND THAT YOU CONSIDERED YOUR PROTEST TO STILL STAND UNANSWERED. IN RESPONSE TO THE MAJOR ISSUE RAISED IN YOUR LETTER OF JULY 12, THE CONTRACTING OFFICER SUPPLIED FURTHER INFORMATION ON JULY 20, 1971. IN A LETTER DATED JULY 23, 1971, YOU ADVISED THE CONTRACTING OFFICER THAT THE ADDITIONAL INFORMATION HE HAD SUPPLIED CONFIRMED YOUR BELIEF THAT THE SUCCESSFUL OFFEROR WAS "NOT QUALIFIED OR RESPONSIBLE"; THAT HIS LETTER DID "NOT 'RESOLVE ANY QUESTIONS' AT ALL"; AND THAT "OUR PROTEST STILL STANDS AND WE ARE PRESSING FOR FURTHER INVESTIGATION."

A MEMBER OF CONGRESS HAD ALSO MADE INQUIRY OF THE ARMY IN YOUR BEHALF, IN RESPONSE TO WHICH THE ARMY FURNISHED A REVIEW OF THE PROTEST, DATED AUGUST 9, 1971, WHICH CONCLUDED "WE HAVE FOUND NO WRONG DOING REGARDING THE MANNER IN WHICH THE PROCUREMENT WAS PROCESSED." ON AUGUST 10, 1971, THE CONTRACTING OFFICER ADVISED YOU THAT HE HAD "MADE A COMPLETE REVIEW OF THE LETTERS YOU HAVE SENT REGARDING THE SOLICITATION AND AWARD" AND INDICATED, FOR VARIOUS REASONS, THAT HE WAS OF THE OPINION THAT YOUR ARGUMENTS WERE WITHOUT MERIT. YOU REPLIED BY LETTER OF AUGUST 18, 1971, IN WHICH YOU CHARACTERIZED THE CONTRACTING OFFICER'S STATEMENTS AS "BRAZEN", "OUTRAGEOUS" AND "DELIBERATE" LIES AND CONCLUDED "WE ARE NOT SATISFIED. OUR PROTEST STILL STANDS."

ON SEPTEMBER 22, 1971, THE ARMY RESPONDED TO A FURTHER CONGRESSIONAL INQUIRY IN YOUR BEHALF, AND REITERATED ITS POSITION THAT "THE AWARD WAS GIVEN TO THE LOW RESPONSIVE, RESPONSIBLE OFFEROR IN ACCORDANCE WITH PRESCRIBED REGULATIONS." THE SAME POSITION WAS TAKEN BY THE ARMY IN ITS LETTER TO YOU OF OCTOBER 1, 1971, WHICH RESPONDED TO YOUR LETTER OF AUGUST 18, 1971. HOWEVER, YOU REGARDED THE ARMY'S RESPONSES TO YOUR PROTEST TO CONSIST OF "EVASIONS", "BUREAUCRATIC DOUBLE TALK" AND "OUTRIGHT LIES", AND BY LETTER DATED NOVEMBER 19, 1971, YOU INFORMED THE COMMANDING GENERAL, MECOM, THAT YOU WOULD "CONTINUE TO PRESS FOR FULL INVESTIGATION." THE COMMANDING GENERAL REPLIED TO YOUR LETTER ON DECEMBER 28, 1971, STATING IN PART:

"*** AFTER HAVING REVIEWED THE FACTS, IT IS MY CONCLUSION THAT THE CONTRACTING OFFICER MADE A PROPER DECISION IN AWARDING THE CONTRACT TO R&O INDUSTRIES. HE FOLLOWED THE REQUIREMENTS OUTLINED IN THE ARMED SERVICES PROCUREMENT REGULATION; AND, IN MY OPINION, HE WOULD HAVE BEEN HARD PRESSED TO AWARD TO ANY OTHER FIRM."

"I SINCERELY DO NOT KNOW WHAT ELSE I CAN DO TO PURSUE THIS MATTER ANY FURTHER, SO I ASK YOU TO JOIN ME IN CONSIDERING IT A CLOSED SUBJECT."

BY LETTER OF JANUARY 3, 1972, YOU INFORMED THE COMMANDING GENERAL THAT YOU WOULD NOT JOIN HIM IN CONSIDERING THE MATTER CLOSED; THAT YOU WERE STILL DISSATISFIED WITH THE ARMY'S RESPONSES; AND THAT YOUR PROTEST WOULD "CONTINUE BY EVERY POSSIBLE AGENCY, CHANNEL AND MEDIA."

IN VIEW OF THE FACT THAT YOU HAD REPEATEDLY QUESTIONED THE HONESTY AND COMPETENCE OF CERTAIN EMPLOYEES OF THE PROCURING ACTIVITY, THE COMMANDING GENERAL APPOINTED AN INVESTIGATING OFFICER TO ASCERTAIN THE FACTS OF THE MATTER, UNDER THE AUTHORITY OF ARMY REGULATION 15-6, "PROCEDURE FOR INVESTIGATING OFFICERS AND BOARDS OF OFFICERS CONDUCTING INVESTIGATIONS," AUGUST 12, 1966. UPON CONSIDERATION OF THE REPORT OF THE INVESTIGATING OFFICER, THE COMMANDING GENERAL ADVISED YOU BY LETTER DATED APRIL 5, 1972, THAT HE HAD "CONCLUDED THAT A CORRECT COURSE OF ACTION WAS FOLLOWED AND THE INTEGRITY OF THE COMPETITIVE PROCUREMENT SYSTEM WAS MAINTAINED." YOU DISAGREED WITH THE COMMANDING GENERAL'S CONCLUSIONS, AND YOUR PROTEST WAS FILED WITH THIS OFFICE ON APRIL 25, 1972.

SECTION 20.2(A) OF OUR BID PROTEST REGULATIONS PROVIDES IN PART:

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

WE REGARD THE CONTRACTING OFFICER'S LETTER OF JUNE 25, 1971, AS CONSTITUTING "ADVERSE AGENCY ACTION" WITHIN THE MEANING OF THIS PROVISION. AS YOU RECOGNIZED IN YOUR LETTER OF AUGUST 30, 1972, THE ARMY WOULD HAVE CONSIDERED THE MATTER CLOSED HAD YOU NOT PERSISTED IN YOUR DISAGREEMENT WITH THE ARMY'S CONCLUSIONS. THE RECORD SET FORTH ABOVE SHOWS THAT ALL OF THE ARMY'S CORRESPONDENCE AFTER JUNE 25, 1971, WAS IN RESPONSE TO YOUR CONTINUED OBJECTIONS TO ITS DENIAL OF YOUR PROTEST. EFFECT, THE ARMY RECONSIDERED AND REAFFIRMED ITS ADVERSE ACTION IN ITS LETTERS TO YOU OF JULY 7 AND 20, AUGUST 10, OCTOBER 1 AND DECEMBER 28, 1971, AND APRIL 5, 1972, AND ITS LETTERS TO A MEMBER OF CONGRESS DATED AUGUST 9 AND SEPTEMBER 22, 1971. EVEN IF WE ADOPTED THE CONSTRUCTION, WHICH IS NOT WARRANTED BY THE RECORD, THAT THE "ADVERSE AGENCY ACTION" CONSISTED OF THE COMMANDING GENERAL'S LETTER OF APRIL 5, 1972, WE OBSERVE THAT YOUR PROTEST WAS NOT FILED IN OUR OFFICE UNTIL APRIL 25, 1972.

WHILE WE REGRET THAT OUR DECISION OF JULY 13 ERRONEOUSLY INDICATED THAT THERE WAS NO FURTHER CORRESPONDENCE BETWEEN YOU AND THE ARMY CONCERNING YOUR PROTEST AFTER JULY 7, 1971, WE REMAIN OF THE OPINION THAT YOUR PROTEST WAS UNTIMELY FILED. ACCORDINGLY, OUR DECISION OF JULY 13 IS AFFIRMED.