B-181619, OCT 23, 1974

B-181619: Oct 23, 1974

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WAS FILED MORE THAN 5 DAYS AFTER THE BASIS OF PROTEST WAS OR SHOULD HAVE BEEN KNOWN AND WAS THEREFORE UNTIMELY UNDER 4 CFR SEC. 20.2 AND WILL NOT BE CONSIDERED BY GAO. WAS THE APPARENT LOW BIDDER UNDER INVITATION FOR BIDS NO. 03-74-36. THE CONTRACTING OFFICER MADE A DETERMINATION THAT SCHULTZ WAS NONRESPONSIBLE. WAS AWARDED TO SUMMIT. SCHULTZ WAS NOTIFIED OF THE AWARD THROUGH A TELEPHONE CALL AND A LETTER OF CONFIRMATION. SCHULTZ' COUNSEL SUBMITTED A BID PROTEST TO OUR OFFICE WHICH WAS RECEIVED JUNE 26. THE GROUNDS FOR THE PROTEST WERE TWOFOLD. THAT THE CONTRACT HAD BEEN AWARDED TO A LARGE BUSINESS AND THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS ARBITRARY AND CAPRICIOUS AND NOT FOUNDED IN GOOD JUDGMENT.

B-181619, OCT 23, 1974

PROTEST BY LOW BIDDER UNDER IFB WHICH CHALLENGED THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY AND ALLEGED THAT THE CONTRACT, A SMALL BUSINESS SET-ASIDE, HAD BEEN AWARDED TO A LARGE BUSINESS, WAS FILED MORE THAN 5 DAYS AFTER THE BASIS OF PROTEST WAS OR SHOULD HAVE BEEN KNOWN AND WAS THEREFORE UNTIMELY UNDER 4 CFR SEC. 20.2 AND WILL NOT BE CONSIDERED BY GAO.

F.R. SCHULTZ CONSTRUCTION COMPANY:

F.R. SCHULTZ CONSTRUCTION COMPANY (SCHULTZ), A SMALL BUSINESS, WAS THE APPARENT LOW BIDDER UNDER INVITATION FOR BIDS NO. 03-74-36, A TOTAL SMALL BUSINESS SET-ASIDE, ISSUED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, BLACK HILLS NATIONAL FOREST, CUSTER, SOUTH DAKOTA. SCHULTZ OFFERED TO PERFORM THE CONTRACT SERVICE OF CRUSHING AND STOCKPILING GRAVEL FOR $29,850. THE ONLY OTHER BIDDER, SUMMIT CONSTRUCTION COMPANY (SUMMIT), AN ALLEGED LARGE BUSINESS, OFFERED TO DO THE WORK FOR $36,000.

ON MAY 29, 1974, THE CONTRACTING OFFICER MADE A DETERMINATION THAT SCHULTZ WAS NONRESPONSIBLE. ON MAY 30, 1974, THE CONTRACT, NO. 03 1879, WAS AWARDED TO SUMMIT. ON THE SAME DATE, SCHULTZ WAS NOTIFIED OF THE AWARD THROUGH A TELEPHONE CALL AND A LETTER OF CONFIRMATION.

ON JUNE 24, 1974, SCHULTZ' COUNSEL SUBMITTED A BID PROTEST TO OUR OFFICE WHICH WAS RECEIVED JUNE 26. THE GROUNDS FOR THE PROTEST WERE TWOFOLD-- THAT THE CONTRACT HAD BEEN AWARDED TO A LARGE BUSINESS AND THAT THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY WAS ARBITRARY AND CAPRICIOUS AND NOT FOUNDED IN GOOD JUDGMENT.

SECTION 20.2 OF TITLE 4, CODE OF FEDERAL REGULATIONS, REQUIRES A PROTESTER TO FILE ITS PROTEST WITH THE GENERAL ACCOUNTING OFFICE "*** NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER." THE TERM "FILED" IS DEFINED AS RECEIPT OF THE PROTEST IN THE CONTRACTING AGENCY OR THE GENERAL ACCOUNTING OFFICE. CFR SEC. 20.2(A) (1972). THE TERM "DAYS" IS DEFINED AS WORKING DAYS OF THE FEDERAL GOVERNMENT. 4 CFR SEC. 20.12(A), SUPRA.

IN THE INSTANT CASE, THE SCHULTZ PROTEST WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE 18 WORKING DAYS AFTER THE COMPANY WAS NOTIFIED OF THE DETERMINATION OF NONRESPONSIBILITY AND THE AWARD OF THE CONTRACT TO SUMMIT. THE PROTEST WAS THUS FILED MORE THAN 5 DAYS AFTER THE PROTESTER KNEW OR SHOULD HAVE KNOWN OF THE GROUNDS FOR THE PROTEST.

ACCORDINGLY, THE PROTEST IS UNTIMELY AND WILL NOT BE CONSIDERED.