B-224064.3, JAN 9, 1987, OFFICE OF GENERAL COUNSEL

B-224064.3, JAN 9, 1987, OFFICE OF GENERAL COUNSEL

PROCUREMENT - BID PROTEST - GAO PROCEDURES - AGENCY NOTIFICATION PROCUREMENT - BID PROTEST - GAO PROCEDURES - GAO DECISIONS - RECONSIDERATION DIGEST: GAO DECLINES CONGRESSIONAL REQUEST TO CONSIDER ON MERITS PROTEST WHICH HAD BEEN DISMISSED IN TWO PREVIOUS DECISIONS BECAUSE OF PROTESTER'S FAILURE TO FURNISH CONTRACTING OFFICER WITH A COPY OF THE PROTEST AS REQUIRED BY GAO'S BID PROTEST REGULATIONS. PROPRIETY OF DISMISSAL HAS BEEN THOROUGHLY CONSIDERED AND TO NOW CONSIDER PROTEST ON MERITS WOULD SUGGEST TO PROCUREMENT COMMUNITY THAT REQUIREMENTS OF BID PROTEST REGULATIONS COULD BE CIRCUMVENTED THROUGH CONGRESSIONAL INTERVENTION.

FEDERAL CONTRACTING CORPORATION:

BY LETTER OF DECEMBER 4, 1986, REPRESENTATIVE CATHY LONG REQUESTED THAT OUR OFFICE REVIEW THE MERITS OF THE PROTEST FILED BY YOUR FIRM, FCC, CONCERNING THE CANCELLATION OF REQUEST FOR PROPOSALS (RFP) NO. DTCG29-86-R -03515 BY THE COAST GUARD. MRS. LONG ASKED THAT WE RESPOND DIRECTLY TO YOU. FOR THE REASONS STATED BELOW, WE DO NOT THINK IT WOULD BE APPROPRIATE FOR US TO REVIEW THIS MATTER.

AS YOU RECALL, THIS PROTEST HAS BEEN THE SUBJECT OF TWO PRIOR DECISIONS OF OUR OFFICE. IN THE FIRST OF THESE DECISIONS, WE DISMISSED THE PROTEST BECAUSE FCC WAS UNABLE TO ESTABLISH THAT IT HAD SATISFIED A PROVISION OF OUR BID PROTEST REGULATIONS WHICH REQUIRES A PROTESTER TO FILE A COPY OF ITS PROTEST WITH THE COAST GUARD'S CONTRACTING OFFICER WITHIN 1 DAY OF FILING WITH OUR OFFICE. 4 C.F.R. SEC. 21.1(D) (1986). YOU REQUESTED THAT OUR OFFICE RECONSIDER ITS DISMISSAL. WE DISMISSED THE REQUEST FOR RECONSIDERATION BECAUSE YOU HAD PRODUCED NO NEW EVIDENCE OR FACTS WHICH HAD COME TO LIGHT SUBSEQUENT TO OUR ORIGINAL DECISION; DID NOT SHOW THAT WE HAD ERRED IN OUR RECITATION OF THE FACTS; NOR MAKE ANY ARGUMENTS WHICH WERE NOT MADE AND AND CONSIDERED ORIGINALLY.

WE NOTED IN OUR PRIOR DECISIONS THAT OUR BID PROTEST REGULATIONS REQUIRE THAT THE AGENCY'S CONTRACTING OFFICER BE PROVIDED A COPY OF A PROTEST FILED IN THIS OFFICE WITHIN 1 DAY OF FILING WITH US. THIS STRICT TIME REQUIREMENT IS IMPOSED BECAUSE A DELAY IN THE CONTRACTING OFFICER'S RECEIPT OF A COPY OF THE PROTEST (1) IMPEDES THE AGENCY'S ABILITY TO MEET THE 25-DAY DEADLINE IMPOSED BY THE COMPETITION IN CONTRACTING ACT OF 1984, 31 U.S.C. SEC. 3553 (SUPP. III 1985), FOR FILING ITS ADMINISTRATIVE REPORT WITH OUR OFFICE, AND (2) FRUSTRATES OUR EFFORTS TO CONSIDER EXPEDITIOUSLY ALL OBJECTIONS TO AGENCY PROCUREMENT ACTIONS.

ALTHOUGH YOU ASSERT THAT YOU MAILED A COPY OF YOUR PROTEST TO THE CONTRACTING OFFICER, IN THE ABSENCE OF EVIDENCE OF THE AGENCY'S TIMELY RECEIPT OF A COPY OF THE PROTEST, THE PROTEST WAS DISMISSED AS PROVIDED FOR IN OUR REGULATIONS. 4 C.F.R. SEC. 21.1(F).

WE RECOGNIZE THAT YOU CONTINUE TO DISAGREE WITH OUR DISMISSAL OF YOUR PROTEST WITHOUT CONSIDERING ON THE MERITS THE ISSUES WHICH IT RAISED. THE CIRCUMSTANCES SURROUNDING THE FILING OF THE PROTEST ARE RELATIVELY STRAIGHTFORWARD, HOWEVER; HAVE NOT CHANGED IN THE 3 MONTHS SINCE THE PROTEST FIRST WAS FILED; AND THE ARGUMENTS FOR AND AGAINST DISMISSAL WERE THOROUGHLY CONSIDERED BY OUR OFFICE PRIOR TO OUR ISSUANCE OF BOTH DECISIONS.

OUR BID PROTEST REGULATIONS APPLY REGARDLESS OF THE SOURCE OF THE PROTEST, INCLUDING PROTESTS FILED OR FORWARDED BY MEMBERS OF CONGRESS ON BEHALF OF CONSTITUENTS. WERE OUR OFFICE TO CONSIDER AN OTHERWISE NON- CONFORMING PROTEST AT THE REQUEST OF A MEMBER OF CONGRESS, THIS WOULD SUGGEST TO THE PROCUREMENT COMMUNITY THAT THE REQUIREMENTS OF OUR BID PROTEST REGULATIONS COULD BE CIRCUMVENTED IN THIS MANNER.

FOR THE ABOVE STATED REASONS, WE ARE UNABLE TO CONSIDER FCC'S PROTEST. WE ARE FORWARDING A COPY OF THIS LETTER TO MRS. LONG.