B-182322, NOV 22, 1974

B-182322: Nov 22, 1974

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PROTEST AGAINST CANCELLATION OF SOLICITATION FILED MORE THAN 5 WORKING DAYS AFTER BASIS OF PROTEST WAS KNOWN IS UNTIMELY UNDER SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS. WHICH REQUIRES THAT PROTESTS BE FILED WITHIN 5 WORKING DAYS OF DATE BASIS OF PROTEST WAS KNOWN OR SHOULD HAVE BEEN KNOWN. 2. PROTESTER'S ALLEGATION THAT ITS PROTEST WAS ORALLY FILED WITH AGENCY PRIOR TO FILING DATE IN GAO IS NOT SUPPORTED BY RECORD WHERE AGENCY DENIES THAT ANY SUCH ORAL PROTEST WAS MADE AND THERE IS NO WRITTEN CONFIRMATION FROM THE BIDDER TO THE AGENCY EVIDENCING THAT A PROTEST WAS FILED WITH THE AGENCY AS ALLEGED. JARRELL-ASH CONTENDS THAT ITS BID WAS FULLY RESPONSIVE TO ALL THE SPECIFICATIONS AND REQUIREMENTS OF THE INVITATION AND THAT AS LOW BIDDER IT SHOULD HAVE BEEN AWARDED THE CONTRACT.

B-182322, NOV 22, 1974

1. PROTEST AGAINST CANCELLATION OF SOLICITATION FILED MORE THAN 5 WORKING DAYS AFTER BASIS OF PROTEST WAS KNOWN IS UNTIMELY UNDER SECTION 20.2(A) OF THE INTERIM BID PROTEST PROCEDURES AND STANDARDS, WHICH REQUIRES THAT PROTESTS BE FILED WITHIN 5 WORKING DAYS OF DATE BASIS OF PROTEST WAS KNOWN OR SHOULD HAVE BEEN KNOWN. 2. PROTESTER'S ALLEGATION THAT ITS PROTEST WAS ORALLY FILED WITH AGENCY PRIOR TO FILING DATE IN GAO IS NOT SUPPORTED BY RECORD WHERE AGENCY DENIES THAT ANY SUCH ORAL PROTEST WAS MADE AND THERE IS NO WRITTEN CONFIRMATION FROM THE BIDDER TO THE AGENCY EVIDENCING THAT A PROTEST WAS FILED WITH THE AGENCY AS ALLEGED.

JARRELL-ASH DIVISION - FISHER SCIENTIFIC COMPANY:

JARRELL-ASH DIVISION (JARRELL-ASH), FISHER SCIENTIFIC COMPANY PROTESTS AGAINST THE CANCELLATION OF INVITATION FOR BIDS (IFB) NO. DAAA22-74-B-0349 ISSUED BY THE WATERVLIET ARSENAL, WATERVLIET, NEW YORK. JARRELL-ASH CONTENDS THAT ITS BID WAS FULLY RESPONSIVE TO ALL THE SPECIFICATIONS AND REQUIREMENTS OF THE INVITATION AND THAT AS LOW BIDDER IT SHOULD HAVE BEEN AWARDED THE CONTRACT. FURTHERMORE, THE PROTESTER ALLEGES THAT THERE IS NO COMPELLING REASON TO CANCEL THE SOLICITATION.

BY LETTER DATED SEPTEMBER 4, 1974, ALL THE BIDDERS PARTICIPATING IN THE PROCUREMENT WERE NOTIFIED BY THE CONTRACTING OFFICER THAT THE SOLICITATION HAD BEEN CANCELED. WHILE THERE IS NO EVIDENCE OF RECORD TO INDICATE THAT JARRELL-ASH ACTUALLY RECEIVED THE NOTIFICATION BY WAY OF THE INITIAL MAILING, THE RECORD INDICATES THAT THROUGH A SUBSEQUENT TELEPHONE CONVERSATION, ON SEPTEMBER 16, 1974, BETWEEN REPRESENTATIVES OF THE PROTESTER AND AN ARSENAL REPRESENTATIVE, JARRELL-ASH WAS ADVISED OF THE CANCELLATION NOTICE AND ITS CONTENTS. FURTHERMORE, ON THAT SAME DATE, A SECOND NOTICE WAS MAILED TO THE PROTESTER AND SIGNED FOR AS BEING RECEIVED BY THE PROTESTER ON SEPTEMBER 18, 1974. JARRELL-ASH SUBSEQUENTLY PROTESTED THE SUBJECT CANCELLATION TO OUR OFFICE BY TELEFAX DATED OCTOBER 1, 1974, WHICH WAS RECEIVED ON OCTOBER 2, 1974.

SECTION 20.2(A) OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (SECTION 20.2(A) OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS) STATES IN PERTINENT PART:

"*** BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN ***. IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST *** FILED WITHIN 5 DAYS OF NOTICE OF ADVERSE AGENCY ACTION WILL BE CONSIDERED ***. THE TERM 'FILED' *** MEANS RECEIPT *** IN THE GENERAL ACCOUNTING OFFICE ***."

SECTION 20.12(A) DEFINES "DAYS" TO MEAN "WORKING DAYS" OF THE FEDERAL GOVERNMENT.

WHILE THE PROTESTER HAS INDICATED THAT ITS PROTEST WAS MADE ORALLY TO THE AGENCY DURING THE COURSE OF A MEETING IT HELD WITH AGENCY REPRESENTATIVES ON SEPTEMBER 25, 1974, THE AGENCY HAS ADVISED US THAT THIS MEETING PRIMARILY CONSISTED OF A TECHNICAL DISCUSSION OF THE PROTESTER'S BID AND THAT AT NO TIME DURING THE COURSE OF THE MEETING DID JARRELL-ASH PROTEST OR INDICATE ANY INTENTION TO PROTEST THE CANCELLATION ACTION. WE NOTE THAT ASPR 2-407.8(A)(1) PROVIDES THAT IF AN ORAL PROTEST IS FILED WITH THE AGENCY AND THE MATTER CANNOT OTHERWISE BE RESOLVED, WRITTEN CONFIRMATION OF THE PROTEST IS REQUESTED. IN VIEW OF THE LACK OF ANY WRITTEN CONFIRMATION THAT JARRELL-ASH PROTESTED TO THE AGENCY PRIOR TO THE TIME IT FILED ITS PROTEST WITH OUR OFFICE, WE MUST CONCLUDE THAT THE PROTEST WAS FILED INITIALLY WITH OUR OFFICE.

SINCE JARRELL-ASH WAS AWARE OF THE BASIS FOR ITS PROTEST BY SEPTEMBER 18, AT THE LATEST, AND, THE PROTEST WAS NOT FILED WITH OUR OFFICE UNTIL OCTOBER 2, 1974, MORE THAN 5 WORKING DAYS AFTER THE PROTESTER LEARNED THAT THE SUBJECT INVITATION WAS CANCELED, WE FIND THAT THE PROTEST IS UNTIMELY, AND THEREFORE IT WILL NOT BE CONSIDERED ON ITS MERITS.