B-182089, NOV 25, 1974
Highlights
GAO AFFIRMS PRIOR DECISION DISMISSING AS UNTIMELY PROTEST AGAINST TWO REOPENINGS OF NEGOTIATIONS UNDER RFP AFTER BEST AND FINAL OFFERS WERE RECEIVED. SINCE IT IS IRRELEVANT WHETHER OR NOT PROTEST WAS FILED WITHIN 5 DAYS OF ADVERSE AGENCY ACTION WHERE INITIAL PROTEST TO AGENCY WAS UNTIMELY. STOCKER ARGUES THAT SINCE ITS PROTEST LETTER IS DATED AUGUST 14. TWO DAYS AFTER ITS INITIAL PROTEST WAS FILED WITH THE CONTRACTING AGENCY. THE PROTEST IS TIMELY UNDER SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS WHICH PROVIDES THAT IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE WITHIN FIVE DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY IS TIMELY.
B-182089, NOV 25, 1974
UPON REQUEST FOR RECONSIDERATION, GAO AFFIRMS PRIOR DECISION DISMISSING AS UNTIMELY PROTEST AGAINST TWO REOPENINGS OF NEGOTIATIONS UNDER RFP AFTER BEST AND FINAL OFFERS WERE RECEIVED, SINCE IT IS IRRELEVANT WHETHER OR NOT PROTEST WAS FILED WITHIN 5 DAYS OF ADVERSE AGENCY ACTION WHERE INITIAL PROTEST TO AGENCY WAS UNTIMELY.
STOCKER AND YALE, INCORPORATED:
STOCKER AND YALE, INCORPORATED (STOCKER), HAS REQUESTED RECONSIDERATION OF OUR DECISION, B-182089, SEPTEMBER 26, 1974, DISMISSING AS UNTIMELY FILED ITS PROTEST AGAINST TWO REOPENINGS OF NEGOTIATIONS UNDER REQUEST FOR PROPOSALS DAAK01-74-R-3273, ISSUED BY THE UNITED STATES ARMY TROOP SUPPORT COMMAND, ST. LOUIS, MISSOURI.
STOCKER ARGUES THAT SINCE ITS PROTEST LETTER IS DATED AUGUST 14, TWO DAYS AFTER ITS INITIAL PROTEST WAS FILED WITH THE CONTRACTING AGENCY, THE PROTEST IS TIMELY UNDER SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS WHICH PROVIDES THAT IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE WITHIN FIVE DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY IS TIMELY. "FILED" WITHIN THE CONTEXT OF SECTION 20.2(A) MEANS "RECEIPT."
OUR CONSIDERATION OF BID PROTESTS IS GOVERNED BY OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS WHICH HAVE BEEN IN EFFECT SINCE FEBRUARY 7, 1972. A PRINCIPAL CONCERN WHICH IS REFLECTED IN THEIR PROCEDURE IS THAT PROTESTS BE RESOLVED AT A STAGE IN THE PROCUREMENT WHEN EFFECTIVE REMEDIAL ACTION MAY BE TAKEN ON MERITORIOUS PROTESTS. IN ORDER TO ENCOURAGE THE EARLY SUBMISSION OF PROTESTS, AND TO CONCENTRATE OUR RESOURCES UPON THE CONSIDERATION OF THOSE CASES IN WHICH THERE IS A POSSIBILITY OF MEANINGFUL RELIEF, WE HAVE ESTABLISHED STANDARDS, CONTAINED IN SECTION 20.2(A) OF OUR PROCEDURES, FOR DETERMINING THE TIMELINESS OF PROTESTS.
AS WE STATED IN OUR PRIOR DECISION, STOCKER'S INITIAL PROTEST TO THE AGENCY WAS UNTIMELY BECAUSE TI WAS NOT FILED WITH (RECEIVED BY) THE AGENCY UNTIL AFTER BEST AND FINAL OFFERS WERE RECEIVED. THEREFORE, IT IS IRRELEVANT WHETHER OR NOT STOCKER'S PROTEST WAS FILED WITH OUR OFFICE WITHIN FIVE DAYS OF ANY "ADVERSE AGENCY ACTION." WE BELIEVE THAT IT IS UNFAIR TO THE GOVERNMENT AND TO OTHER COMPETING FIRMS FOR AN OFFEROR SUCH AS STOCKER TO PARTICIPATE IN A PROCUREMENT THROUGH THE SUBMISSION OF BEST AND FINAL OFFERS, ONLY THEN TO ALLEGE THAT THE NEGOTIATIONS TO WHICH HE WAS A PARTY SHOULD NOT HAVE BEEN CONDUCTED.
SINCE WE REMAIN OF THE OPINION THAT STOCKER'S PROTEST WAS UNTIMELY FILED, WE NEED NOT DISCUSS ITS ALLEGATION THAT THE CONTRACTING OFFICER IMPROPERLY PROCEEDED WITH AWARD OF THE CONTRACT DESPITE THE PENDENCY OF THE PROTEST.
ACCORDINGLY, OUR PRIOR DECISION IS AFFIRMED.