B-181086, AUG 23, 1974

B-181086, AUG 23, 1974

1. SINCE PROTESTER INTENDED TO EVALUATE EXPLANATION FOR NOT RECEIVING AWARD PROVIDED BY AGENCY AT DEBRIEFING HELD ON MARCH 21, 1974, BEFORE PURSUING ITS PROTEST, PROTESTER COULD NOT EXPECT AGENCY TO ACT FURTHER ON PROTEST WITHOUT ADDITIONAL TIMELY INITIATIVE BY PROTESTER, AND THEREFORE PROTEST FILED WITH OUR OFFICE ON APRIL 17, 1974 IS UNTIMELY UNDER SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS WHICH PROVIDES THAT "BID PROTESTS SHALL BE FILED NOT LATER THAN FIVE WORKING DAYS AFTER THE BASIS FOR THE PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER." 2.SINCE PROTESTER WAS ADVISED THAT AWARD HAD BEEN MADE TO ANOTHER OFFEROR BY AGENCY LETTER OF APRIL 2, 1974, WHICH WAS RECEIVED APRIL 4, 1974, AND OFFEROR DID NOT FILE ITS PROTEST WITH THIS OFFICE UNTIL APRIL 17, 1974, PROTEST IS UNTIMELY UNDER SECTION 20.2 (A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS WHICH REQUIRES THAT PROTEST FILED INITIALLY WITH THE CONTRACTING AGENCY BE PROTESTED TO THE GENERAL ACCOUNTING OFFICE WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION REGARDING INITIAL PROTEST TO AGENCY.

LPL TECHNICAL SERVICE, INCORPORATED:

IN A DECISION DATED MAY 13, 1974, THIS OFFICE CONCLUDED THAT A PROTEST FILED HERE ON APRIL 17, 1974 BY LPL TECHNICAL SERVICE WAS UNTIMELY SINCE IT WAS FILED MORE THAN FIVE DAYS AFTER A DEBRIEFING BY THE PROCURING AGENCY ON MARCH 21, 1974, TO EXPLAIN THE BASIS FOR PROPOSAL REJECTION. SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. 20.2(A).

LPL NOW CONTENDS THAT IT MET THE FIVE-DAY FILING REQUIREMENT OF THE ABOVE REGULATION BY LODGING A VIGOROUS VERBAL PROTEST ON MARCH 21 AT THE DEBRIEFING. IN THIS CONNECTION LPL STATES:

"WE ADVISED ALL WHO WERE PRESENT, AS ENUMBERATED IN PREVIOUS CORRESPONDENCE, THAT WE WOULD EXAMINE OUR POPOSAL FOR WHAT WAS STATED BY THE NAVY AS 'DEFICIENCIES', AND CONTINUE OUR PTOEST IF WE FELT JUSTIFIED. IN NO WAY DID THIS EXAMINATION OF OUR PROPOSAL FORFEIT OUR RIGHT TO CINTINUE TO PROEST. WE MERELY AGREED WITH MR. WEINTRAUB, OF THE NAVY TECHNICAL DEPARTMENT, THAT WE WOULD EXAMINE OUR PROPOSAL FOR THE DISCREPANCIES HE CITED. UPON THE RE-EXAMINATION OF OUR PROPOSAL, WE PROCEEDED WITH OUR PROTEST BY LETTER TO VARIOUS DEPARTMENTS; I.E., NAVY DEPARTMENT, 11TH NAVAL DISTRICT, AND THE GENERAL ACCOUNTING OFFICE."

IT IS CLEAR THAT LPL INTENDED TO EVALUATE THE EXPLANATION GIVEN AT THE DEBRIEFING AND TO RETAIN ITS RIGHT TO PURSUE ITS PROTEST. THUS LPL COULD NOT HAVE FAIRLY EXPECTED NAVY TO INITIATE ANY FURTHER EFFORT WITH REGARD TO VERBAL PROTESTATIONS IT MAY HAVE LODGED AT THE DEBRIEFING. CLEARLY, IT WAS INCUMBENT UPON LPL TO WEIGH THE EXPLANATION PROVIDED AND THEN TO ACT ON ITS CONCLUSIONS. SINCE LPL DID NOT BRING HIS MATTER TO OUR ATTENTION UNTIL APRIL 17 (BY LETTER DATED APRIL 11) WE REMAIN OF THE OPINION THAT SUCH ACTION WAS UNTIMELY UNDER THE ABOVE-CITED PROTEST PROCEDURE.

IN ANY EVENT, THE RECORD REVEALS THAT BY LETTER DATED APRIL 2, 1974, AND RECEIVED BY LPL ON APRIL 4, 1974, OFFICIAL NOTICE OF CONTRACT AWARD WAS GIVEN. ASSUMING, ARGUENDO, THAT A VALID PROTEST WAS MADE TO THE PROCURING ACTIVITY ON MARCH 21, 1974, 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 PROTEST TO OUR OFFICE MUST BE FILED "WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION" IN ORDER TO BE CONSIDERED. WE HAVE HELD THAT WHERE THE INITIAL PROTEST IS LODGED WITH THE PROCURING AGENCY IT IS OBLIGATORY UPON A PROTESTER TO FILE ITS PROTEST WITH OUR OFFICE WITHIN 5 DAYS OF NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION. 52 COMP. GEN. 20, 23 (1972). IT APPEARS THAT LPL WAS NOTIFIED OF AN AWARD (AFTER IT CLAIMS TO HAVE PROTESTED AGAINST SUCH AN AWARD ON MARCH 21, 1974) APPROXIMATELY 9 WORKING DAYS BEFORE ITS PROTEST WAS FILED WITH OUR OFFICE. THEREFORE,, LPL'S PROTEST IS UNTIMELY UNDER THE PROVISIONS OF SECTION 20.2(A) CITED ABOVE.

WE THEREFORE MUST DECLINE TO CONSIDER THE PROTEST ON ITS MERITS.