B-200025, SEP 2, 1980

B-200025, SEP 2, 1980

DIGEST: 1. OPENING OF BIDS WITHOUT TAKING CORRECTIVE ACTION REQUESTED IN PROTEST CONSTITUTED INITIAL ADVERSE AGENCY ACTION ON PROTEST FILED WITH AGENCY. PROTEST TO GAO IS UNTIMELY WHEN FILED IN GAO MORE THAN 10 DAYS AFTER SUCH INITIAL ADVERSE AGENCY ACTION. THEREFORE, PROTEST IS DISMISSED. 2. FACT THAT PROTESTER CONTINUED TO PURSUE PROTEST WITH CONTRACTING AGENCY AFTER INITIAL ADVERSE AGENCY ACTION DOES NOT AFFECT 10-DAY REQUIREMENT FOR TIMELY FILING IN GAO.

ROSENDIN ELECTRIC, INC.:

ROSENDIN ELECTRIC, INC. (ROSENDIN ELECTRIC), HAS PROTESTED UNDER INVITATION FOR BIDS (IFB) NO. DACA05-80-B-0105 ISSUED BY THE UNITED STATES ARMY CORPS OF ENGINEERS (CORPS OF ENGINEERS). ROSENDIN ELECTRIC WAS LISTED AS A PROPOSED SUBCONTRACTOR BY SEVERAL BIDDERS IN RESPONSE TO THIS IFB FOR THE PRIME CONTRACT AND ALLEGES THAT IT WAS PREJUDICED BY DEFICIENCIES IN THE IFB. WE WILL NOT CONSIDER THE PROTEST ON THE MERITS BECAUSE IT WAS UNTIMELY FILED IN OUR OFFICE.

ROSENDIN ELECTRIC CONTENDS THAT THE PREVAILING WAGE RATES FOR ELECTRICIANS, REQUIRED UNDER THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276(A) (1976), WERE INACCURATELY SET FORTH IN THE IFB AS ORIGINALLY ISSUED ON JUNE 9, 1980. ROSENDIN ELECTRIC'S REPRESENTATIVE ORALLY PROTESTED TO THE CORPS OF ENGINEERS, AND, AS A RESULT, THE IFB WAS AMENDED ON JULY 3, 1980, TO INCREASE THE WAGE RATE STATED FOR ELECTRICIANS. ROSENDIN ELECTRIC CONTENDS THAT THE STATED WAGE RATE WAS STILL TOO LOW AND THAT THIS ERROR WAS POINTED OUT TO THE CORPS OF ENGINEERS BY THE PRESIDENT OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS. WITHOUT MAKING ANY FURTHER AMENDMENTS TO THE SOLICITATION, OR FURTHER RESPONDING TO ROSENDIN ELECTRIC'S PROTEST, THE CORPS OF ENGINEERS OPENED BIDS ON JULY 23, 1980. ON JULY 29, 1980, ROSENDIN ELECTRIC FILED A SECOND PROTEST WITH THE CORPS OF ENGINEERS. ON AUGUST 18, 1980, ROSENDIN ELECTRIC FILED ITS PROTEST WITH OUR OFFICE.

UNDER SECTION 20.2(B)(1) OF OUR BID PROTEST PROCEDURES, 4 C.F.R. PART 20 (1980), PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN AN IFB WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING IN ORDER TO BE CONSIDERED ON THEIR MERITS. THE PROTESTER MAY FILE ITS PROTEST WITH THE CONTRACTING AGENCY UNDER SECTION 20.2(A) OF OUR BID PROTEST PROCEDURES, BUT ANY SUBSEQUENT PROTEST TO OUR OFFICE MUST BE FILED WITHIN 10 DAYS OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE INITIAL ADVERSE AGENCY ACTION ON THE PROTEST BEFORE THE CONTRACTING AGENCY.

IN THE PRESENT CASE, ROSENDIN ELECTRIC'S ORAL PROTEST TO THE CORPS OF ENGINEERS WAS TIMELY FILED SINCE IT WAS FILED BEFORE BID OPENING. WHEN THE IFB WAS AMENDED ON JULY 3, 1980, TO SHOW A NEW (BUT STILL ALLEGEDLY ERRONEOUS) WAGE RATE, ROSENDIN ELECTRIC AND THE PRESIDENT OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS PURSUED THE MATTER FURTHER WITH THE CORPS OF ENGINEERS. WHEN THE BIDS WERE OPENED BY THE CORPS OF ENGINEERS ON JULY 23, 1980, WITHOUT HAVING ISSUED ANY FURTHER AMENDMENTS OR TAKEN ANY OTHER CORRECTIVE ACTION ON THE PROTEST, THAT ACTION, AT THE LATEST, CONSTITUTED THE INITIAL ADVERSE AGENCY ACTION ON THE PROTEST. SEE KLEEN-RITE JANITORIAL SERVICE, INC., B-178990, FEBRUARY 19, 1974, 74-1 CPD 78. THEREFORE, ROSENDIN ELECTRIC WAS REQUIRED TO PROTEST TO OUR OFFICE WITHIN 10 DAYS OF BID OPENING IF IT WANTED US TO CONSIDER THE MERITS OF ITS PROTEST. SINCE ROSENDIN ELECTRIC DID NOT FILE ITS PROTEST WITH OUR OFFICE UNTIL AUGUST 18, 1980, THE PROTEST IS UNTIMELY. WHILE ROSENDIN ELECTRIC CONTINUED TO PURSUE ITS PROTEST WITH THE CORPS OF ENGINEERS AFTER THE INITIAL ADVERSE AGENCY ACTION (BID OPENING), THIS DOES NOT AFFECT THE 10-DAY REQUIREMENT FOR A TIMELY FILING WITH OUR OFFICE. WESTWOOD PHARMACEUTICALS - RECONSIDERATION, B-191443, MAY 23, 1978, 78-1 CPD 392.

THE PROTEST IS DISMISSED.