B-178204, OCT 10, 1973

B-178204, OCT 10, 1973

DENIAL OF CONSIDERATION FOR PROTEST, UPON REVIEW OF PRIOR DISALLOWANCE, MADE AGAINST THE AWARD OF A CONTRACT TO TECHNOLOGY INCORPORATED UNDER RFP NO. F-33615-73-Q-0584 ISSUED BY WRIGHT-PATTERSON AIR FORCE BASE. INITIAL PROTEST WAS UNTIMELY UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20.2(A) AND COULD NOT BE CONSIDERED ON THE MERITS.

TO CENTRO CORPORATION:

YOUR LETTER OF JULY 20, 1973, AND PRIOR CORRESPONDENCE, REQUESTED RECONSIDERATION OF OUR LETTER B-178204 OF JUNE 13, 1973, WHICH ADVISED THAT YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO TECHNOLOGY INCORPORATED UNDER REQUEST FOR PROPOSALS (RFP) F33615-73-Q-0584, ISSUED BY WRIGHT-PATTERSON AIR FORCE BASE WAS UNTIMELY UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20.2(A), AND WOULD NOT BE CONSIDERED ON THE MERITS.

YOUR PROTEST WAS CONSIDERED TO BE UNTIMELY IN THE JUNE 13 LETTER BECAUSE IT WAS FILED IN OUR OFFICE ON MARCH 15, 1973. THAT DATE WAS AFTER THE AWARD ON MARCH 9, 1973, THE CLOSING OF BEST AND FINAL OFFERS ON MARCH 2, 1973, AND MORE IMPORTANT, THE LETTER OF FEBRUARY 27, 1973, FROM THE CONTRACTING OFFICER TO ALL OFFERORS CONFIRMING THAT THE COMPOSITE RATE BASIS FOR PROPOSALS ABOUT WHICH YOU COMPLAINED WOULD NOT BE CHANGED.

YOU CONTEND THAT THE LETTER OF FEBRUARY 27, 1973, SHOULD NOT BE CONSIDERED TO HAVE SET THE TIME REQUIREMENT IN SECTION 20.2(A) INTO MOTION BECAUSE NEITHER YOU NOR THE AIR FORCE CONSIDERED YOUR COMPLAINT UPON WHICH THE FEBRUARY 27 LETTER WAS BASED A PROTEST. HOWEVER, ALTHOUGH YOU MAY NOT HAVE USED THE WORD "PROTEST" IN YOUR COMPLAINT AND THE AIR FORCE MAY NOT HAVE VIEWED THE COMPLAINT AS A PROTEST, THE FACT REMAINS THAT THE LETTER OF FEBRUARY 27 WAS AN ACTION ON THE COMPLAINT AND WAS AN ADVERSE AGENCY ACTION. SECTION 20.2(A) IS SPECIFIC THAT THE PROTEST BE FILED WITHIN 5 WORKING DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION.

YOU HAVE CONTENDED FURTHER THAT EVEN IF THE FEBRUARY 27 LETTER WAS A DENIAL OF A PROTEST, THE LAST MEETING ON THE PROTEST WAS NOT HELD UNTIL MARCH 5, 1973, AND YOU DID NOT LEARN OF THE RESULT OF THAT MEETING UNTIL YOU RECEIVED INFORMATION ON MARCH 15, 1973, THAT AN AWARD HAD BEEN MADE. IN THAT REGARD, IN 52 COMP. GEN. 20, 23 (1972), OUR OFFICE STATED:

"*** WE REGARD IT AS OBLIGATORY UPON A PROTESTOR TO FILE HIS PROTEST WITH OUR OFFICE WITHIN 5 DAYS OF NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION, IF IT IS TO BE CONSIDERED TIMELY. ***"

IN VIEW OF THE DETERMINATION THAT THE PROTEST TO OUR OFFICE IS UNTIMELY, THE QUESTION ARISES WHETHER THERE IS GOOD CAUSE SHOWN OR WHETHER THE PROTEST RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES THAT WARRANT CONSIDERATION OF THE PROTEST. SEE SECTION 20.2(B) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS.

AS STATED IN 52 COMP. GEN., SUPRA -

"'GOOD CAUSE' VARIES WITH THE CIRCUMSTANCES OF EACH PROTEST, ALTHOUGH IT GENERALLY REFERS TO SOME COMPELLING REASON, BEYOND THE PROTESTOR'S CONTROL, WHICH HAS PREVENTED HIM FROM FILING A TIMELY PROTEST."

WE FIND NOTHING IN THE RECORD THAT ESTABLISHES THAT THERE WERE CIRCUMSTANCES BEYOND YOUR CONTROL THAT PREVENTED YOU FROM FILING A PROMPT PROTEST WITH OUR OFFICE. FURTHER, AS STATED IN THE CITED DECISION ABOVE:

"*** 'ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES' REFERS ***TO THE PRESENCE OF A PRINCIPLE OF WIDESPREAD INTEREST. ***"

WE DO NOT FIND SUCH A PRINCIPLE TO BE EVIDENCED BY THE MATERIAL AND ALLEGATIONS YOU HAVE SUBMITTED CONCERNING THE USE OF COMPOSITE RATES.

ACCORDINGLY, WE CONTINUE OF THE VIEW THAT YOUR PROTEST SHOULD NOT BE CONSIDERED BY OUR OFFICE.