B-178990, FEB 19, 1974

B-178990: Feb 19, 1974

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PROTESTS FOLLOWING ADVERSE AGENCY ACTION MUST BE FILED WITHIN 5 DAYS OF SUCH ADVERSE ACTION AND CONTRACTING OFFICER'S STATEMENT TO THE EFFECT THAT GAO WILL CONSIDER MERITS OF PROTEST CANNOT INSURE PROTESTER REDRESS BEFORE GAO. IF PROTESTER HIMSELF HAS ALLOWED 5 DAY FILING PERIOD TO ELAPSE AND CONTRACTING OFFICER'S STATEMENT IS ALSO MADE AFTER TIME FOR FILING HAS EXPIRED. DECLINED TO CONSIDER THE MERITS OF KLEEN-RITE'S PROTEST BECAUSE IT WAS UNTIMELY FILED. WAS RECEIVED BY THE CONTRACTING OFFICER TWO HOURS AFTER BIDS WERE OPENED ON JUNE 4. KLEEN-RITE FURTHER CONTENDS THAT THERE WAS NO ADVERSE AGENCY ACTION UNTIL IT RECEIVED NOTICE OF THE AWARD ON OR ABOUT JUNE 28. KLEEN-RITE THEREFORE ARGUES THAT ITS PROTEST WAS TIMELY FILED WITH OUR OFFICE.

B-178990, FEB 19, 1974

UNDER GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20.2(A), PROTESTS FOLLOWING ADVERSE AGENCY ACTION MUST BE FILED WITHIN 5 DAYS OF SUCH ADVERSE ACTION AND CONTRACTING OFFICER'S STATEMENT TO THE EFFECT THAT GAO WILL CONSIDER MERITS OF PROTEST CANNOT INSURE PROTESTER REDRESS BEFORE GAO, IF PROTESTER HIMSELF HAS ALLOWED 5 DAY FILING PERIOD TO ELAPSE AND CONTRACTING OFFICER'S STATEMENT IS ALSO MADE AFTER TIME FOR FILING HAS EXPIRED.

TO KLEEN-RITE JANITORIAL SERVICE, INC.:

ON JUNE 25, 1973, COUNSEL FOR KLEEN-RITE JANITORIAL SERVICE, INC. (KLEEN- RITE), FILED A PROTEST WITH OUR OFFICE ALLEGING AN IMPROPRIETY IN THE SPECIFICATIONS IN INVITATION FOR BIDS (IFB) NO. DABC01-73-0179, ISSUED BY FORT RUCKER, ALABAMA. THEREAFTER, ON OCTOBER 26, 1973, OUR OFFICE IN B- 178990, DECLINED TO CONSIDER THE MERITS OF KLEEN-RITE'S PROTEST BECAUSE IT WAS UNTIMELY FILED. BY LETTER OF NOVEMBER 9, 1973, KLEEN-RITE REQUESTED THAT WE RECONSIDER OUR POSITION AND ALLEGES THAT ITS LETTER OF PROTEST OF JUNE 1, 1973, WAS RECEIVED BY THE CONTRACTING OFFICER TWO HOURS AFTER BIDS WERE OPENED ON JUNE 4, 1973, AND NOT ON JUNE 5 AS STATED IN OUR PRIOR DECISION. KLEEN-RITE FURTHER CONTENDS THAT THERE WAS NO ADVERSE AGENCY ACTION UNTIL IT RECEIVED NOTICE OF THE AWARD ON OR ABOUT JUNE 28, 1973. KLEEN-RITE THEREFORE ARGUES THAT ITS PROTEST WAS TIMELY FILED WITH OUR OFFICE.

OUR INITIAL DECISION STATES THAT:

"*** EVEN IF THE ORAL PROTEST WAS LODGED AS YOU CONTEND, THE PROTEST TO OUR OFFICE IS CONSIDERED UNTIMELY SINCE IN OUR VIEW THE OPENING OF BIDS ON JUNE 4, 1973, WITHOUT AMENDING THE IFB TO MEET THE PROTEST, CONSTITUTED AN ADVERSE AGENCY ACTION ON THE PROTEST. ***"

AFTER REVIEWING THE GROUNDS FOR OUR ORIGINAL REFUSAL TO CONSIDER THE PROTEST AND, IN THE ABSENCE OF CONVINCING EVIDENCE OR ARGUMENTS IN SUPPORT OF THE REQUEST FOR RECONSIDERATION, WE CONCLUDE THAT THE ORIGINAL DECISION WAS CORRECT.

THE DATE THE ORAL PROTEST WAS LODGED BY KLEEN-RITE ON JUNE 1, 1973 (PRIOR TO BID OPENING), IS THE CRUCIAL DATE, NOT THE DATE THE CONFIRMING LETTER OF PROTEST WAS RECEIVED BY THE CONTRACTING OFFICER. SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS STATES:

"*** PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING *** SHALL BE FILED PRIOR TO BID OPENING ***."

THIS PROVISION REGARDS BID OPENING, IN CIRCUMSTANCES SUCH AS PRESENT HERE, AS "ADVERSE AGENCY ACTION", FROM WHICH A PROTEST MUST BE FILED WITHIN FIVE DAYS.

SECTION 20.2(A) GOES ON TO STATE:

"*** IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. ***"

SINCE THE ADVERSE AGENCY ACTION OCCURRED ON JUNE 4, 1973, WHEN BIDS WERE OPENED, KLEEN-RITE HAD UNTIL JUNE 11, 1973, TO FILE A TIMELY PROTEST WITH OUR OFFICE. HOWEVER, KLEEN-RITE CONTENDS THAT SINCE THE CONTRACTING OFFICER STATED IN HIS JUNE 11, 1973, LETTER THAT "*** THE VIEWS OF THE OFFICE OF THE COMPTROLLER GENERAL REGARDING THE PROTEST WILL BE OBTAINED BEFORE AN AWARD IS MADE ***", ITS PROTEST SHOULD BE CONSIDERED.

WHEN KLEEN-RITE RECEIVED THE CONTRACTING OFFICER'S LETTER OF JUNE 11, 1973, THE 5-DAY PERIOD FOR FILING A PROTEST WITH OUR OFFICE HAD ALREADY EXPIRED. THUS, THE CONTRACTING OFFICER'S STATEMENT IS NOT A RELEVANT CONSIDERATION INSOFAR AS OUR 5-DAY FILING RULE IS CONCERNED; NOR IS OUR REFUSAL, UNDER THE ABOVE-RECITED CIRCUMSTANCES, AN AVOIDANCE OF OUR RESPONSIBILITIES UNDER THE BID PROTEST PROCEDURES AND STANDARDS.

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