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B-220618.3, FEB 10, 1986, OFFICE OF GENERAL COUNSEL

B-220618.3 Feb 10, 1986
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CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: PROTEST WHICH APPEARED UNTIMELY ON ITS FACE WAS PROPERLY NOT REOPENED AS A TIMELY APPEAL TO AN AGENCY DENIAL OF THE PROTEST. THE HONORABLE ELDON RUDD: HOUSE OF REPRESENTATIVES THIS IS IN RESPONSE TO YOUR LETTER DATED DECEMBER 18. YOU EXPRESS CONCERN THAT THE REASONS OUR OFFICE DISMISSED MARCO'S PROTEST ARE BASED ON LEGAL TECHNICALITIES IN OUR BID PROTEST REGULATIONS THAT WERE NOT REASONABLY COMMUNICATED TO MARCO. YOU REQUEST THAT WE CLARIFY THIS MATTER WITH THE DEPARTMENT OF THE INTERIOR SO THAT PROTESTERS ARE ADEQUATELY APPRISED OF SUCH REQUIREMENTS.

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B-220618.3, FEB 10, 1986, OFFICE OF GENERAL COUNSEL

CONTRACTS - PROTESTS - GENERAL ACCOUNTING OFFICE PROCEDURES - TIMELINESS OF PROTEST - DATE BASIS OF PROTEST MADE KNOWN TO PROTESTER DIGEST: PROTEST WHICH APPEARED UNTIMELY ON ITS FACE WAS PROPERLY NOT REOPENED AS A TIMELY APPEAL TO AN AGENCY DENIAL OF THE PROTEST, WHERE THE PROTESTER FAILED TO MENTION IN ITS INITIAL GAO PROTEST THAT IT HAD PREVIOUSLY PROTESTED TO THE AGENCY.

THE HONORABLE ELDON RUDD:

HOUSE OF REPRESENTATIVES

THIS IS IN RESPONSE TO YOUR LETTER DATED DECEMBER 18, 1985, CONCERNING OUR DECISION IN MARCO CRANE & RIGGING CO.-- REQUEST FOR RECONSIDERATION, B-220618.2, NOV. 27, 1985, 85-2 CPD PARA. 612, WHICH AFFIRMED OUR OFFICE'S DISMISSAL OF A PROTEST BY MARCO CRANE & RIGGING CO. (MARCO) AGAINST THE REJECTION OF ITS BID BY THE BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR, UNDER INVITATION FOR BIDS NO. 5-51-30-03230. YOU EXPRESS CONCERN THAT THE REASONS OUR OFFICE DISMISSED MARCO'S PROTEST ARE BASED ON LEGAL TECHNICALITIES IN OUR BID PROTEST REGULATIONS THAT WERE NOT REASONABLY COMMUNICATED TO MARCO. YOU REQUEST THAT WE CLARIFY THIS MATTER WITH THE DEPARTMENT OF THE INTERIOR SO THAT PROTESTERS ARE ADEQUATELY APPRISED OF SUCH REQUIREMENTS.

MARCO'S PROTEST TO OUR OFFICE ON OCTOBER 2, 1985, WAS INITIALLY DISMISSED ON OCTOBER 4, 1985, AS UNTIMELY UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1985). WE CONSIDERED THE PROTEST UNTIMELY BECAUSE MARCO WAS APPRISED THAT ITS BID WAS REJECTED ON OR ABOUT SEPTEMBER 3, 1985, AND MARCO'S PROTEST WAS NOT FILED AT OUR OFFICE WITHIN 10 WORKING DAYS OF THAT DATE, WHICH WAS WHEN THE BASIS FOR PROTEST WAS KNOWN, AS REQUIRED BY SECTION 21.2(A)(2) OF OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.2(A)(2).

MARCO ASKED US TO RECONSIDER THE DISMISSAL ON OCTOBER 16, 1985. DURING THE PROCESS OF RECONSIDERING THIS DISMISSAL, WE LEARNED FOR THE FIRST TIME THAT MARCO HAD PREVIOUSLY PROTESTED THIS MATTER TO THE AGENCY ON SEPTEMBER 3, 1985, AND THE PROTEST TO OUR OFFICE WAS ACTUALLY AN APPEAL OF THE AGENCY'S SEPTEMBER 24, 1985, DENIAL OF MARCO'S PROTEST. HOWEVER, MARCO DID NOT MENTION THIS CRITICAL FACT TO OUR OFFICE IN ITS INITIAL PROTEST.

WE WILL CONSIDER AN APPEAL FROM AN AGENCY DENIAL OF A PROTEST IF IT IS TIMELY FILED. IN ORDER TO BE TIMELY, IT MUST BE FILED WITHIN 10 WORKING DAYS OF THE PROTESTER'S RECEIPT OF SUCH DENIAL. 4 C.F.R. SEC. 21.2(A)(3). IF OUR OFFICE HAD BEEN APPRISED IN THE INITIAL PROTEST LETTER THAT THIS WAS AN APPEAL FROM THE AGENCY'S ADVERSE ACTION, THE PROTEST WOULD HAVE BEEN CONSIDERED.

WE DECIDE BID PROTESTS UNDER THE AUTHORITY OF SECTION 2741(A) OF THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C.A. SEC. 3554(A)(3) (WEST SUPP. 1985). THE STATUTE AUTHORIZES OUR OFFICE TO DISMISS A PROTEST WHICH WE DETERMINE FRIVOLOUS, OR WHICH, ON ITS FACE, DOES NOT STATE A VALID BASIS FOR PROTEST. THIS PROVISION WAS INCLUDED IN CICA BECAUSE OF THE SERIOUS POTENTIAL DISRUPTION THAT PROTESTS HAVE ON THE PROCUREMENT PROCESS. THEREFORE, OUR BID PROTEST REGULATIONS IMPLEMENTING CICA PLACE THE SLIGHT BURDEN ON PROTESTERS TO "SET FORTH A DETAILED STATEMENT OF THE LEGAL AND FACTUAL GROUNDS OF PROTEST INCLUDING COPIES OF RELEVANT DOCUMENTS," 4 C.F.R. SEC. 21.1(B)(4), AND WARN THAT PROTESTS FAILING TO FOLLOW THESE REQUIREMENTS MAY BE DISMISSED. 4 C.F.R. SEC. 21.1(F). THE AGENCY'S DENIAL OF A PROTEST IS A MATTER WHICH SHOULD BE INCLUDED IN THE INITIAL PROTEST LETTER. SINCE MARCO FAILED TO MENTION THIS FACT, WE REFUSED TO REINSTATE THE PROTEST.

YOU HAVE EXPRESSED CONCERN THAT MARCO WAS NOT CLEARLY APPRISED OF ANY REQUIREMENT TO SPECIFICALLY BRING ITS AGENCY PROTEST TO OUR OFFICE'S ATTENTION WHEN IT FILED ITS PROTEST. IN THIS REGARD, YOU NOTE THAT ALTHOUGH THE CONTRACTING OFFICER INFORMED MARCO THAT IT COULD APPEAL THE DENIAL OF ITS AGENCY PROTEST TO OUR OFFICE, HE DID NOT WARN MARCO THAT ITS PROTEST MAY BE DISMISSED BY OUR OFFICE IF MARCO FAILED TO ESTABLISH THAT THE PROTEST WAS A TIMELY APPEAL OF THE AGENCY DENIAL.

YOU HAVE ALSO FORWARDED A LETTER DATED DECEMBER 12, 1985, FROM MARCO EXPRESSING ADDITIONAL CONCERNS ABOUT THE PROTESTED INVITATION FOR BIDS. IN THIS LETTER, MARCO COMPLAINS THAT IT WAS NOT PROMPTLY NOTIFIED BY THE AGENCY OF THE REJECTION OF ITS LOW BID AND ONLY AFTER IT PROTESTED TO THE AGENCY DID IT LEARN OF THE REASONS FOR THE REJECTION. AGENCIES SHOULD INFORM BIDDERS OF THE REASONS THEIR BIDS ARE REJECTED. HOWEVER, THE FAILURE TO GIVE SUCH NOTICE IS A PROCEDURAL DEFICIENCY NOT AFFECTING THE VALIDITY OF THE AWARD AND DOES NOT APPEAR TO HAVE PREJUDICED MARCO.

WE ARE ADVISING THE DEPARTMENT OF THE INTERIOR OF YOUR CONCERN AND RECOMMENDING THAT IN THE FUTURE, LETTERS DENYING A PROTEST INFORM PROTESTERS THAT THEY SHOULD PROVIDE OUR OFFICE A COPY OF THE DENIAL OF THE AGENCY PROTEST WHEN THEY APPEAL TO OUR OFFICE.

WE HOPE THE FOREGOING SATISFIES THE PURPOSES OF YOUR INQUIRY.

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