B-182072, OCT 16, 1974

B-182072, OCT 16, 1974

WHERE PROTESTER WAS INFORMED BY LETTER FROM DSA DATED FEBRUARY 20, 1974, THAT ITS PROTEST HAD BEEN DENIED, PROTEST RECEIVED BY GAO ON AUGUST 20, 1974, 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.

A. L. YOUNG MACHINERY COMPANY

INVITATION FOR BIDS (IFB) NO. DSA400-74-B-1713 WAS ISSUED ON AUGUST 15, 1973, BY THE DEFENSE SUPPLY AGENCY (DSA) FOR 18 WOODWORKING SURFACERS. THE SOLICITATION WAS A 100 PERCENT SET-ASIDE FOR SMALL BUSINESS. BIDS WERE OPENED ON SEPTEMBER 11, 1973, AND DON G. JENNESS COMPANY (JENNESS) WAS THE LOW BIDDER. AN AWARD WAS MADE TO JENNESS ON NOVEMBER 6, 1973.

BY LETTER OF DECEMBER 21, 1973, TO THE CONTRACTING OFFICER AT DSA, A. L. YOUNG MACHINERY COMPANY (YOUNG) PROTESTED THE AWARD OF THE CONTRACT TO JENNESS ALLEGING THAT JENNESS' BID WAS "INTENTIONALLY MISLEADING." SPECIFICALLY, YOUNG ALLEGED THAT THE COMPONENT PARTS FOR THE WOODWORKING SURFACERS WERE TO BE SUPPLIED BY TWO LARGE BUSINESS CONCERNS AND THAT JENNESS DID NOT INTEND TO ASSEMBLE THE COMPONENTS. BY LETTER OF JANUARY 23, 1974, THE DSA CONTRACTING OFFICER RESPONDED TO YOUNG'S ALLEGATIONS STATING THAT THE MATTER WAS BEING FORWARDED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR ITS CONSIDERATION IN FUTURE PROCUREMENT ACTIONS. FURTHERMORE, YOUNG WAS ADVISED THAT DSA INTENDED TO MONITOR JENNESS' CONTRACT PERFORMANCE TO ASCERTAIN WHETHER JENNESS WAS COMPLYING WITH ITS SMALL BUSINESS REPRESENTATION.

BY LETTER OF JANUARY 29, 1974, TO DSA YOUNG RESPONDED TO THE CONTRACTING OFFICER'S LETTER OF JANUARY 23. YOUNG REITERATED ITS PREVIOUS POSITION THAT THE ITEMS UNDER THE JENNESS CONTRACT WOULD BE NEITHER PRODUCED NOR ASSEMBLED BY A SMALL BUSINESS CONCERN. YOUNG FURTHER CONTENDED THAT THE CONTRACTING OFFICER ERRED IN ACCEPTING AT FACE VALUE JENNESS' SMALL BUSINESS REPRESENTATION, AND IN FORWARDING ITS PREVIOUS LETTER TO SBA FOR USE ONLY IN FUTURE PROCUREMENT ACTIONS. IN VIEW OF THE FOREGOING, YOUNG ASKED THAT JENNESS' CONTRACT BE CANCELLED. BY LETTER OF FEBRUARY 20, 1974, DSA REJECTED ALL OF YOUNG'S CONTENTIONS STATING THAT THERE APPEARED TO BE NO BASIS FOR CANCELLING THE JENNESS' CONTRACT.

YOUNG, BY LETTER DATED AUGUST 15, 1974, AND RECEIVED IN THIS OFFICE AUGUST 20, 1974, PROTESTED THE AGENCY ACTION.

SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS OF OUUR OFFICE (4 C.F.R. 20.2(A)) PROVIDES 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, PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY. SINCE THE PROTEST WAS NOT RECEIVED IN OUR OFFICE UNTIL AUGUST 20, 1974, SOME SIX MONTHS AFTER YOUNG RECEIVED NOTIFICATION OF ADVERSE AGENCY ACTION, IT WAS UNTIMELY FILED AND WILL NOT BE CONSIDERED BY OUR OFFICE. 52 COMP. GEN. 20 (1972).