B-181925, SEP 4, 1974

B-181925, SEP 4, 1974

WHERE PROTESTER WAS INFORMED BY LETTER DATED JULY 11, 1974, WHICH PROTESTER ACKNOWLEDGES WAS RECEIVED ON OR BEFORE JULY 16, 1974, THAT THE BUREAU OF RECLAIMATION DENIED HIS PROTEST OF THE REJECTION OF HIS BID, PROTEST RECEIVED BY GAO ON JULY 30, 1974 (TEN WORKING DAYS AFTER JULY 16) WAS UNTIMELY AND WILL NOT BE CONSIDERED SINCE UNDER SECTION 20.2(A) OF GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS PROTEST MUST BE RECEIVED WITHIN FIVE WORKING DAYS OF THE NOTIFICATION OF ADVERSE AGENCY ACTION IF AN INITIAL PROTEST WAS MADE TO THE AGENCY.

EMERSON S. ELLETT, INCORPORATED:

ON MAY 21, 1974, CONSTRUCTION BIDS FOR THE BUREAU OF RECLAMATION LOWER MISSOURI REGION SPECIFICATION NO. 700C-822, LIMON SUBSTATION ADDITIONS, WERE OPENED AND READ IN THE BUREAU OF RECLAIMATION OFFICE IN LOVELAND, COLORADO. PRIOR TO BID OPENING, THE BID OPENING OFFICER ANNOUNCED THAT A SUPPLEMENTAL NOTICE REGARDING WAGE RATES HAD BEEN ISSUED. ONE OF THE BIDDERS EMERSON S. ELLETT, PRESIDENT OF EMERSON S. ELLETT, INCORPORATED (ELLETT), IMMEDIATELY STATED THAT HE HAD NOT RECEIVED THE SUPPLEMENTAL NOTICE AND THEREFORE HAD NOT ACKNOWLEDGED IT. THE BIDS WERE OPENED AND ELLETT WAS LOW BIDDER.

THE CONTRACTING OFFICER NOTIFIED ELLETT BY LETTER DATED JUNE 11, 1974, THAT HIS BID WOULD NOT BE CONSIDERED FOR AWARD SINCE HIS FAILURE TO ACKNOWLEDGE RECEIPT OF THE SUPPLEMENTAL NOTICE HAD THE EFFECT OF MAKING THE BID NONRESPONSIVE. BY LETTERS DATED JUNE 12, 1974, AND JUNE 28, 1974, ELLETT PROTESTED TO THE AGENCY THE CONTRACTING OFFICER'S ACTION OF JUNE 11.

BY LETTER DATED JULY 11, 1974, THE BUREAU OF RECLAMATION NOTIFIED ELLETT THAT AFTER REVIEWING HIS LETTERS AND THE BID OPENING REPORT IT HAD REAFFIRMED ITS EARLIER DETERMINATION THAT ELLETT'S BID WAS REQUIRED TO BE REJECTED. THE RECORD INDICATES THAT ELLETT WAS IN RECEIPT OF THE BUREAU'S LETTER BY JULY 16, 1974, AND BY LETTER OF SAME DATE ELLETT ADVISED THE BUREAU THAT IT BELIEVED THE REJECTION OF ITS BID WAS ARBITRARY AND REQUESTED ADVICE ON HOW TO PROCEED WITH A FORMAL PROTEST.

ELLETT, BY LETTER DATED JULY 24, 1974, AND RECEIVED IN THIS OFFICE JULY 30, 1974, PROTESTED THE AGENCY ACTION.

SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS OF OUR OFFICE (4 C.F.R. 20.2(A)) REQUIRES THAT IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GAO MUST BE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION. ELLETT'S LETTERS OF JUNE 12, 1974, AND JUNE 28, 1974, TO THE BUREAU OF RECLAMATION STATING HIS POSITION AND SUGGESTING APPROPRIATE ACTION CONSTITUTED THE FILING OF A PROTEST WITH THE AGENCY. A REQUEST BY A DISAPPOINTED BIDDER FOR A REVIEW OF PROCUREMENT ACTION NEED NOT CONTAIN THE EXACT WORDS OF PROTEST BEFORE IT CAN BE CHARACTERIZED AS A BID PROTEST. 53 COMP. GEN., B-180146, JANURY 30, 1974. THE BUREAU'S RESPONSE ON JULY 11, 1974, STATING AGAIN THAT ELLETT'S BID MUST BE REJECTED, CONSTITUTED NOTIFICATION OF ADVERSE AGENCY ACTION. THE PROTESTER ADVISED THIS OFFICE THAT HE RECEIVED THIS NOTIFICATION ON JULY 15 OR JULY 16, 1974. EVEN THOUGH THE PROTESTER MAY NOT HAVE BEEN AWARE OF THE STANDARDS OF THIS OFFICE FOR CONSIDERING BID PROTESTS, WE HAVE HELD THAT THIS FACT IS NOT SUFFICIENT JUSTIFICATION FOR CONSIDERING AN OTHERWISE UNTIMELY PROTEST SINCE PUBLICATION OF OUR PROCEDURES IN THE FEDERAL REGISTER PLACED THE PROTESTER ON CONSTRUCTIVE NOTICE WITH RESPECT TO THOSE PROCEDURES. 180039, JANUARY 31, 1974.

THEREFORE, THE PROTEST WAS REQUIRED TO BE RECEIVED IN OUR OFFICE NO LATER THAN JULY 23, 1974. SINCE THE PROTEST WAS NOT RECEIVED HERE UNTIL JULY 30, 1974, IT WAS UNTIMELY FILED AND WILL NOT BE CONSIDERED BY OUR OFFICE. 52 COMP. GEN. 20 (1972).