B-182304, OCT 22, 1974

B-182304: Oct 22, 1974

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WHERE PROTEST BY SMALL BUSINESS FOUND NONRESPONSIBLE DUE TO LACK OF CAPACITY AGAINST AWARD MADE PURSUANT TO CERTIFICATE OF URGENCY IS FILED WITH GAO SEPTEMBER 30. PROTEST IS UNTIMELY AND NOT FOR CONSIDERATION. SINCE IT WAS NOT FILED WITHIN 5 WORKING DAYS AFTER THE BASIS FOR PROTEST WAS KNOWN. THE PROTEST WAS MADE BY LETTER TO OUR OFFICE DATED SEPTEMBER 19. THE INFORMATION CONTAINED THEREIN INDICATES THAT NKS WAS THE LOW BIDDER. WAS FOUND TO BE NONRESPONSIBLE BECAUSE OF LACK OF CAPACITY TO PERFORM THE CONTRACT. THE QUESTION OF NKS'S RESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED. NKS CONTENDS THAT IT WAS DEPRIVED OF ITS RIGHT TO PERFORM THE CONTRACT AT A LOWER PRICE AND IN A RESPONSIBLE MANNER.

B-182304, OCT 22, 1974

WHERE PROTEST BY SMALL BUSINESS FOUND NONRESPONSIBLE DUE TO LACK OF CAPACITY AGAINST AWARD MADE PURSUANT TO CERTIFICATE OF URGENCY IS FILED WITH GAO SEPTEMBER 30, 1974, AND PROTESTER LEARNED OF BASIS FOR PROTEST SEPTEMBER 19, 1974, PROTEST IS UNTIMELY AND NOT FOR CONSIDERATION, SINCE IT WAS NOT FILED WITHIN 5 WORKING DAYS AFTER THE BASIS FOR PROTEST WAS KNOWN, AS REQUIRED BY 4 C.F.R. SEC. 20.2(A) (1972).

NATIONAL KEYPUNCH SERVICES, INC.:

NATIONAL KEYPUNCH SERVICES, INC. (NKS), A SUBSIDIARY OF DATA MANAGEMENT, INC., HAS PROTESTED TO OUR OFFICE AGAINST THE AWARD OF A CONTRACT OT NATIONAL OPTIMATION SERVICES, INC., BY THE DEPARTMENT OF JUSTICE UNDER INVITATION FOR BIDS NO. CO-4-75.

THE PROTEST WAS MADE BY LETTER TO OUR OFFICE DATED SEPTEMBER 19, 1974, WITH ENCLOSURES. THE INFORMATION CONTAINED THEREIN INDICATES THAT NKS WAS THE LOW BIDDER, BUT WAS FOUND TO BE NONRESPONSIBLE BECAUSE OF LACK OF CAPACITY TO PERFORM THE CONTRACT. THE QUESTION OF NKS'S RESPONSIBILITY WAS NOT REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR CONSIDERATION WHETHER A CERTIFICATE OF COMPETENCY SHOULD BE ISSUED. INSTEAD, PURSUANT TO A CERTIFICATE OF URGENCY, THE CONTRACTING AGENCY PROCEEDED TO MAKE AN AWARD.

NKS CONTENDS THAT IT WAS DEPRIVED OF ITS RIGHT TO PERFORM THE CONTRACT AT A LOWER PRICE AND IN A RESPONSIBLE MANNER, AND FURTHER CONTENDS THAT IT WAS DEPRIVED OF ITS RIGHT TO APPEAL THROUGH SBA CHANNELS BECAUSE IT DID NOT RECEIVED NOTIFICATION OF THE SEPTEMBER 5, 1974, AWARD UNTIL SEPTEMBER 19, 1974.

EXCEPT FOR CASES OF APPARENT SOLICITATION IMPROPRIETIES, OUR BID PROTEST PROCEDURES AND STANDARDS (TITLE 4, CODE OF FEDERAL REGULATIONS, PART 20) REQUIRE THAT PROTESTS TO OUR OFFICE BE "FILED" (RECEIVED AT OUR OFFICE) "*** NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER." SEE 4 C.F.R. SEC. 20.2(A) (1972). "DAYS" REFERS TO WORKING DAYS OF THE AGENCIES OF THE FEDERAL GOVERNMENT. 4 C.F.R. 20.12(A).

IN THE PRESENT CASE, NKS STATES THAT IT LEARNED OF THE CERTIFICATE OF URGENCY AND THE AWARD FROM THE DEPARTMENT OF JUSTICE'S SEPTEMBER 11, 1974, LETTER, WHICH NKS RECEIVED ON SEPTEMBER 19, 1974. THE LETTER OF PROTEST TO OUR OFFICE IS DATED AND POSTMARKED SEPTEMBER 19, 1974, AND WAS SENT VIA AIRMAIL; HOWEVER, IT WAS NOT RECEIVED HERE UNTIL SEPTEMBER 30, 1974. THEREFORE, THE PROTEST WAS FILED 7 WORKING DAYS AFTER THE BASIS FOR PROTEST WAS KNOWN. IT APPEARS THAT A DELAY IN THE MAILS MAY HAVE OCCURRED DUE TO THE FACT THAT THE ZIP CODE ON THE ENVELOPE ADDRESSED TO OUR OFFICE WAS INCORRECT. HOWEVER, OUR PROCEDURES AND STANDARDS CAUTION THAT PROTESTS SHOULD BE TRANSMITTED OF DELIVERED IN THAT MANNER WHICH WILL ASSURE EARLIEST RECEIPT. SEE, IN THIS CONNECTION, 53 COMP. GEN. 518 (1974).

UNDER THE CIRCUMSTANCES, THE PROTEST MUST BE REGARDED AS UNTIMELY. ADDITION, WE DO NOT BELIEVE CONSIDERATION IS MERITED UNDER THE GOOD CAUSE OR SIGNIFICANT ISSUE PROVISIONS OF 4 C.F.R. SEC. 20.2(B). ACCORDINGLY, WE ARE CLOSING OUR FILE IN THIS MATTER.