B-201390 L/M, DEC 30, 1980

B-201390 L/M, DEC 30, 1980

OFFICE OF GENERAL COUNSEL

GMR, A PARTNERSHIP:

ATTENTION: MARCO J. GIARDINO, PRINCIPAL PARTNER

WE REFER TO YOUR NOVEMBER 25, 1980 LETTER PROTESTING THE AWARD OF CONTRACT J7530-0-0024 BY THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, TO THE CENTER FOR GULF SOUTH HISTORY FOR AN ETHNOHISTORIC OVERVIEW OF MISSISSIPPI DELTA CULTURE.

THE ENCLOSURES TO YOUR LETTER SHOW THAT YOU WERE ADVISED OF THE SELECTION OF THE CENTER FOR GULF SOUTH HISTORY ON AUGUST 1, 1980, AND OF THE SPECIFIC REASONS THEREFOR BY LETTER FROM THE CONTRACTING OFFICER DATED AUGUST 13. ON AUGUST 15, YOU SENT TO THE CONTRACTING OFFICER A "NOTICE OF APPEAL AND COMPLAINT TO THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS" PROTESTING THE AWARD; WE ASSUME THAT YOU EXPECTED THAT THE "NOTICE OF APPEAL" WOULD BE FORWARDED TO THE REFERENCED BODY. HOWEVER, YOUR LETTER WAS TREATED BY THE CONTRACTING OFFICER AS A PROTEST TO THE PROCURING ACTIVITY, AND THE PROTEST WAS DENIED BY LETTER OF SEPTEMBER 22. WE RECEIVED YOUR NOVEMBER 25 LETTER ON DECEMBER 1.

SECTION 20.2(A) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980), REQUIRES THAT A PROTEST AGAINST A CONTRACT AWARD BE FILED IN EITHER THE CONTRACTING AGENCY OR THE GENERAL ACCOUNTING OFFICE WITHIN 10 WORKING DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. (THE CONTRACTING AGENCY MAY IMPOSE A MORE STRINGENT TIME FOR FILING A PROTEST WITH IT, WHICH WILL CONTROL WHEN THAT ALTERNATIVE IS SELECTED BY A DISAPPOINTED BIDDER OR OFFEROR.) THE SECTION ALSO REQUIRES THAT WHEN A PROTEST HAS BEEN TIMELY FILED WITH A CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO OUR OFFICE BE FILED WITHIN 10 WORKING DAYS OF KNOWLEDGE OF THE AGENCY'S INITIAL ADVERSE ACTION ON THE MATTER.

SINCE YOUR PROTEST TO OUR OFFICE WAS FILED MORE THAN 10 WORKING DAYS AFTER YOUR RECEIPT OF THE CONTRACTING OFFICER'S SEPTEMBER 22 LETTER, THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.

WE POINT OUT THAT EVEN IF THE CONTRACTING OFFICER HAD NOT CONSIDERED YOUR "NOTICE OF APPEAL" AS A "PROTEST" TO THE CONTRACTING AGENCY, THE PROTEST TO OUR OFFICE NONETHELESS WOULD BE DISMISSED BECAUSE NO PROTEST AGAINST THE AWARD OF THE CONTRACT WOULD HAVE BEEN FILED WITHIN 10 WORKING DAYS AFTER THE BASIS FOR IT WAS KNOWN TO YOUR FIRM.

FINALLY, WE NOTE THAT AFTER RECEIVING THE CONTRACTING OFFICER'S DENIAL OF YOUR "PROTEST" OF AUGUST 15, YOU IMMEDIATELY PURSUED THE MATTER WITH THE DEPARTMENT OF THE INTERIOR'S BOARD OF CONTRACT APPEALS. THE PROTEST TO OUR OFFICE WAS FILED ONLY AFTER THE BOARD, ON NOVEMBER 18, DISMISSED THE MATTER FOR LACK OF JURISDICTION.

THE TIME LIMITS SET OUT IN OUR BID PROTEST PROCEDURES REFLECT OUR ATTEMPT TO BALANCE WHAT WE RECOGNIZE ARE OFTEN CONFLICTING CONSIDERATIONS: RESOLVING BID PROTESTS IN A MANNER THAT COMPORTS WITH THE ORDERLY AND EXPEDITIOUS PROCESS OF GOVERNMENT PROCUREMENT, AND AFFORDING PROTESTERS A FAIR OPPORTUNITY TO PRESENT THEIR CASES. CONSISTENT WITH THAT ATTEMPT, WE CONSIDER IT INCUMBENT UPON FIRMS TO BE DILIGENT IN THE PURSUIT OF THEIR PROTESTS SO AS NOT TO DELAY THE PROCUREMENT PROCESS ANY MORE THAN ABSOLUTELY NECESSARY. SEE BIRD JOHNSON COMPANY - REQUEST FOR RECONSIDERATION, B-199445.3, OCTOBER 14, 1980, 80-2 CPD 275. IN THAT CONNECTION, BECAUSE OUR BID PROTEST PROCEDURES WERE PUBLISHED IN THE FEDERAL REGISTER, YOU MUST BE VIEWED AS BEING ON NOTICE OF THEIR CONTENTS, INCLUDING THE TIME LIMITS FOR FILING PROTESTS. U. S. FINANCIAL SERVICES, INC. - REQUEST FOR RECONSIDERATION B-197859, OCTOBER 8, 1980, 80-2 CPD 254.

IN VIEW THEREOF, YOUR PROTEST MUST BE DISMISSED.