B-242329.2, Mar 12, 1991, 91-1 CPD 273

B-242329.2, Mar 12, 1991, 91-1 CPD 273

PROCUREMENT - Bid Protests - GAO procedures - Protest timeliness - 10 day rule PROCUREMENT - Bid Protests - GAO procedures - Constructive notification

DIGEST

Attorneys

Hilda A. Phelps -- Reconsideration:

Hilda A. Phelps requests reconsideration of our dismissal, as untimely, of her protest under Forest Service solicitation No. R8-90 22. We affirm our dismissal of the protest. Ms. Phelps' protest involved the Forest Service's award of a contract to another firm on November 16, 1990. Ms. Phelps alleged her proposal was technically acceptable and lower priced, and that she should have received the award. The protest record showed that the protester was advised of the award decision during a telephone conversation with the contracting officer on either November 16 or November 19, and that the Forest Service mailed its written notice of the award on November 19. Ms. Phelps' protest to our Office was filed on December 11.

Since our Bid Protest Regulations require that protests such as the one at issue here be filed no later than 10 working days after the protester knew, or should have known, of the basis for protest, whichever is earlier, see 4 C.F.R. Sec. 21.2(a)(2) (1990), we determined that Ms. Phelps' protest had to be filed by December 4 in order to be timely. This determination was based on the assumption that the telephone conversation took place on November 19; 10 working days from that date is December 4. A protester's receipt of oral information forming the basis of the protest is sufficient to start the 10-day time period running, since written notification is not required. Swafford Indus., B-238055, Mar. 12, 1990, 90-1 CPD Para. 268. We also note that even if notice of the award was provided only by the November 19 letter and we presume that the notice letter took 1 week to reach the protester, the time for filing would have commenced on November 26; 10 working days from that date is December 10.

In her request for reconsideration, Ms. Phelps argues that the solicitation instructed contractors to file protests with either the General Services Administration Board of Contract Appeals (GSBCA) or with the General Accounting Office (GAO). Since she did not have an address for our Office she initially filed her protest with the GSBCA and did not file her protest with us until after it was dismissed by the GSBCA on December 5. The protester argues, on this basis, that she has done everything she could to comply with the applicable regulations, and that the protest should be considered timely.

The solicitation contained the standard Federal Acquisition Regulation (FAR) clause concerning the service of bid protests, FAR Sec. 52.233-2. This clause requires that copies of any protest filed with the GSBCA and our Office be served on the contracting officer and provides the location where the copy for the contracting officer should be filed. The clause does not address the jurisdictional limitations of the GSBCA or GAO. However, to the extent Ms. Phelps was misled by the inclusion of the reference to the GSBCA, this does not alter the untimeliness of the protest. Protesters are charged with constructive knowledge, even where they do not have actual knowledge, of government regulations when these regulations have been published in the Federal Register. Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947). Section 33.102 of the Federal Acquisition Regulation identifies the statutory jurisdiction of the GSBCA and was published in the Federal Register. Our Bid Protest Regulations, including the timeliness requirements, also were published in the Federal Register. Thus, as a matter of law, the protester is deemed to be aware of both the GSBCA's jurisdiction and our filing requirements. See Data Processing Serv., B-225443.2, Dec. 18, 1986, 86-2 CPD Para. 683. In this regard, filing with the GSBCA does not toll the running of our filing requirements. Electrophysics Corp., B-240545, Aug. 10, 1990, 90-2 CPD Para. 119.

The dismissal is affirmed.