B-182267, NOV 8, 1974

B-182267: Nov 8, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

UNTIMELY PROTEST UNDER GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS WILL NOT BE CONSIDERED UNDER 4 C.F.R. 20.2(B)(1974) SINCE ALLEGED IMPROPER BID REJECTION FOR FAILURE TO ACKNOWLEDGE AMENDMENT IN ISOLATED INSTANCE IS NOT ISSUE SIGNIFICANT TO PROCUREMENT PRACTICES AND PROCEDURES. LACK OF KNOWLEDGE OF GAO OR ITS PROCEDURES FOR COSIDERING BID PROTESTS DOES NOT CONSTITUTE "GOOD CAUSE" SUCH AS TO PROVIDE SUFFICIENT JUSTIFICATION FOR CONSIDERING UNTIMELY PROTEST BECAUSE BID PROTEST PROCEDURES ARE PUBLISHED IN FEDERAL REGISTER AND PROTESTER IS CHARGED WITH CONSTRUCTIVE NOTICE THEREOF. WE ADVISED COUNSEL THAT OUR OFFICE WAS CURRENTLY REEXAMINING THE LEGAL AND POLICY ISSUES INVOLVED IN CONSIDERING PROTESTS OF AWARDS UNDER FEDERAL GRANTS OF THE TYPE INVOLVED HERE.

B-182267, NOV 8, 1974

UNTIMELY PROTEST UNDER GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS WILL NOT BE CONSIDERED UNDER 4 C.F.R. 20.2(B)(1974) SINCE ALLEGED IMPROPER BID REJECTION FOR FAILURE TO ACKNOWLEDGE AMENDMENT IN ISOLATED INSTANCE IS NOT ISSUE SIGNIFICANT TO PROCUREMENT PRACTICES AND PROCEDURES, AND LACK OF KNOWLEDGE OF GAO OR ITS PROCEDURES FOR COSIDERING BID PROTESTS DOES NOT CONSTITUTE "GOOD CAUSE" SUCH AS TO PROVIDE SUFFICIENT JUSTIFICATION FOR CONSIDERING UNTIMELY PROTEST BECAUSE BID PROTEST PROCEDURES ARE PUBLISHED IN FEDERAL REGISTER AND PROTESTER IS CHARGED WITH CONSTRUCTIVE NOTICE THEREOF.

CONSTRUCTION ASSOCIATES, INC.:

ON SEPTEMBER 20, 1974, COUNSEL, ON BEHALF OF CONSTRUCTION ASSOCIATES, INC., FILED A PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER FIRM UNDER PROJECT NO. C380319 FOR WASTE STABILIZATION PONDS FOR GWINNER, NORTH DAKOTA, PURSUANT TO A GRANT BY THE ENVIRONMENTAL PROTECTION AGENCY. LETTER OF OCTOBER 17, 1974, WE ADVISED COUNSEL THAT OUR OFFICE WAS CURRENTLY REEXAMINING THE LEGAL AND POLICY ISSUES INVOLVED IN CONSIDERING PROTESTS OF AWARDS UNDER FEDERAL GRANTS OF THE TYPE INVOLVED HERE. THEREFORE WE WOULD NOT RENDER A FORMAL DECISION PENDING RESOLUTION OF THE FOREGOING ISSUES.

IN A LETTER DATED OCTOBER 17, 1974, COUNSEL ACKNOWLEDGES THAT THE PROTEST WAS UNTIMELY FILED UNDER THE INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R., PART 20 (1974)) OF OUR OFFICE. HOWEVER, COUNSEL BELIEVES THAT, WHILE THE PROTEST MAY HAVE BEEN UNTIMELY FILED, OUR OFFICE SHOULD RESOLVE THE PROTEST UNDER 4 C.F.R. SEC. 20.2(B)(1974) AS ONE WHICH RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES OR FOR GOOD CAUSE SHOWN.

WE DO NOT VIEW THE ISSUE RAISED - ALLEGED IMPROPER REJECTION OF A BID FOR FAILING TO ACKNOWLEDGE AN AMENDMENT IN AN ISOLATED INSTANCES - TO BE SIGNIFICANT UNDER THE PROCEDURES. MOREOVER, WE HAVE RECOGNIZED THAT "GOOD CAUSE" VARIES WITH THE CIRCUMSTANCES OF EACH PROTEST BUT GENERALLY REFERS TO SOME COMPELLING REASON, BEYOND THE PROTESTER'S CONTROL, WHICH PREVENTED THE FILING OF A TIMELY PROTEST. SEE 52 COMP. GEN. 20, 23 (1972). IN THE LETTER OF OCTOBER 17, THE REASON GIVEN FOR THE LATE FILING OF THE PROTEST WAS THAT THE FIRM WAS UNAWARE OF ITS RIGHT TO PROTEST TO OUR OFFICE. LACK OF KNOWLEDGE REGARDING THIS OFFICE OR ITS PROCEDURES FOR CONSIDERING BID PROTESTS DOES NOT CONSTITUTE "GOOD CAUSE" SUCH AS TO PROVIDE SUFFICIENT JUSTIFICATION FOR CONSIDERING AN OTHERWISE UNTIMELY PROTEST. OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS WERE PUBLISHED ON DECEMBER 23, 1971, IN VOLUME 36 OF THE FEDERAL REGISTER AT PAGES 24791 AND 24792 AND, ACCORDINGLY, WE REGARD THE FIRM TO HAVE BEEN ON CONSTRUCTIVE NOTICE WITH RESPECT TO THOSE PROVISIONS. MATTER OF LANCE INVESTIGATION SERVICE INC., B 180481, APRIL 5, 1974; AND MATTER OF DEWITT TRANSFER & STORAGE CO., 53 COMP. GEN. 533 (1974).

BASED ON THE FOREGOING, THE PROTEST IS DISMISSED AS UNTIMELY.