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B-181262, SEP 4, 1974

B-181262 Sep 04, 1974
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NOTWITHSTANDING FACT THAT FURTHER PROTEST WAS FILED WITH AGENCY. IN THIS CASE BIDDER'S CORPORATE HEADQUARTERS WAS ADVISED OF AGENCY'S DENIAL OF ORAL PROTEST MADE BY FIRM'S REPRESENTATIVE AND SUBSEQUENT PROTEST TO GAO WAS MADE NO LESS THAN 19 DAYS AFTER RECEIPT OF SUCH NOTICE. 2. ORAL PROTESTS MADE TO OTHER AGENCIES WILL BE CONSIDERED EFFECTIVE PROTEST TO AGENCY UNDER 4 C.F.R. 20.2(A) IF AGENCY EVIDENCES ITS INTENTION TO SO TREAT IT. AUTOMATED ARGUES THAT THE INITIAL ORAL PROTEST TO THE AGENCY WAS MADE BY A PERSON WHO WAS NOT AN OFFICER OF THE FIRM AND THAT THE 5 DAY PERIOD FOR PROTESTING TO THIS OFFICE SHOULD NOT HAVE COMMENCED TO RUN FROM THE TIME THE AGENCY RESPONDED TO SUCH A PROTEST. IT IS ALSO ARGUED THAT IT WOULD BE INEQUITABLE TO APPLY TO THIS CASE THE RULE EXPOUNDED IN 52 COMP.

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B-181262, SEP 4, 1974

1. UNDER GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. 20.2(A), SUBSEQUENT PROTEST TO GAO FOLLOWING ADVERSE AGENCY ACTION ON ORAL PROTEST TO AGENCY MUST BE FILED WITHIN 5 DAYS OF NOTIFICATION OF SUCH ADVERSE ACTION, NOTWITHSTANDING FACT THAT FURTHER PROTEST WAS FILED WITH AGENCY. IN THIS CASE BIDDER'S CORPORATE HEADQUARTERS WAS ADVISED OF AGENCY'S DENIAL OF ORAL PROTEST MADE BY FIRM'S REPRESENTATIVE AND SUBSEQUENT PROTEST TO GAO WAS MADE NO LESS THAN 19 DAYS AFTER RECEIPT OF SUCH NOTICE. 2. ORAL PROTESTS MADE TO OTHER AGENCIES WILL BE CONSIDERED EFFECTIVE PROTEST TO AGENCY UNDER 4 C.F.R. 20.2(A) IF AGENCY EVIDENCES ITS INTENTION TO SO TREAT IT.

AUTOMATED PROCESSES, INCORPORATED:

IN DECISION B-181262, JUNE 11, 1974, WE CONCLUDED THAT AUTOMATED PROCESSES, INCORPORATED (AUTOMATED) TOOK APPROXIMATELY 4 WEEKS AFTER AN AGENCY DECISION ON ITS ORAL PROTEST TO SUBMIT THE MATTER FOR OUR CONSIDERATION AND THAT THIS EXCEEDED THE TIME PROVIDED IN SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. 20.2(A), WHICH REQUIRES SUCH PROTEST TO BE FILED WITHIN 5 WORKING DAYS OF NOTIFICATION OF THE AGENCY'S DENIAL OF THE PROTEST.

BY LETTER OF JULY 2, 1974, AUTOMATED REQUESTED THAT WE RECONSIDER OUR POSITION. AUTOMATED ARGUES THAT THE INITIAL ORAL PROTEST TO THE AGENCY WAS MADE BY A PERSON WHO WAS NOT AN OFFICER OF THE FIRM AND THAT THE 5 DAY PERIOD FOR PROTESTING TO THIS OFFICE SHOULD NOT HAVE COMMENCED TO RUN FROM THE TIME THE AGENCY RESPONDED TO SUCH A PROTEST. AUTOMATED ALSO ARGUES THAT ITS PRESIDENT FILED A TIMELY PROTEST, OR REQUEST FOR RECONSIDERATION, WITH THE AGENCY WITHIN 5 DAYS AFTER RECEIPT OF THE AGENCY'S WRITTEN CONFIRMATION DENYING THE ORAL PROTEST. IT IS ALSO ARGUED THAT IT WOULD BE INEQUITABLE TO APPLY TO THIS CASE THE RULE EXPOUNDED IN 52 COMP. GEN. 20 (1972) THAT ANY SUBSEQUENT PROTEST TO THIS OFFICE MUST BE FILED WITHIN 5 DAYS OF NOTIFICATION OF INITIAL ADVERSE AGENCY ACTION.

THE RECORD SHOWS THAT ON PARIL 22, 1974, AUTOMATED'S CORPORATE HEADQUARTERS WAS IN RECEIPT OF A COPY OF THE CONTRACTING OFFICER'S WRITTEN CONFIRMATION, ADDRESSED TO THE FIRM'S WASHINGTON REPRESENTATIVE, DENYING THE PROTEST. EVEN IF THE FIRM'S WASHINGTON REPRESENTATIVE HAD NO AUTHORITY TO PROTEST ON BEHALF OF AUTOMATED (AND WE NEED NOT DECIDE THIS QUESTION HERE), THE FIRM SHOULD HAVE BEEN AWARE NO LATER THAN APRIL 22 THAT THE CONTRACTING OFFICER HAD GIVEN SERIOUS CONSIDERATION TO THE PROTEST FILED BY ITS REPRESENTATIVE.

IT HAS BEEN OUR CONSISTENT POSITITION THAT A PROTEST MUST BE FILED HERE WITHIN 5 WORKING DAYS OF THE INITIAL AGENCY REJECTION AND WE BELIEVE THE REQUIREMENT IN 4 CFR 20.2(A) WOULD BE POINTLESS UNLESS IT IS INTERPRETED AS REQUIRING A SUBSEQUENT PROTEST TO BE FILED HERE WITHIN 5 DAYS OF THE INITIAL ADVERSE AGENCY ACTION AS OPPOSED TO SOME SUBSEQUENT DENIAL BY THE AGENCY. ALSO, ORAL PROTEST MADE INITIALLY TO THE PROCURING AGENCY IS AN EFFECTIVE PROTEST TO THE AGENCY UNDER 4 CFR 20.2(A) IF THE AGENCY EVIDENCES ITS INTENTION TO SO TREAT IT. B 178990, FEBRUARY 19, 1974. SINCE AUTOMATED'S PROTEST WAS RECEIVED HERE NO LESS THAN 19 WORKING DAYS AFTER ITS CORPORATE HEADQUARTERS WAS APPRISED OF THE CONTRACTING OFFICER'S DENIAL OF ITS REPRESENTATIVE'S PROTEST, WE REMAIN CONVINCED THAT THE PROTEST MUST BE REJECTED AS UNTIMELY FILED IN THIS OFFICE.

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