B-182420(2), JAN 16, 1975

B-182420(2): Jan 16, 1975

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ANY SUBSEQUENT PROTEST TO GAO ON SAME GROUNDS WAS REQUIRED TO BE FILED WITHIN 5 WORKING DAYS FROM NOVEMBER 1. PROTEST FILED ON DECEMBER 12 IS UNTIMELY. MODERN CONTENDS THAT BRADY DOES NOT HAVE THE PROPER AUTHORITY FROM THE INTERSTATE COMMERCE COMMISSION (ICC) TO PERFORM THE SERVICES REQUIRED BY THE AIR FORCE. THE AIR FORCE WAS ALSO PROVIDED WITH A COPY OF AN ICC ORDER. THAT THERE WAS NO BASIS ON WHICH TO DISALLOW A CONTRACT TO BRADY. WHEN NO FORMAL RESPONSE TO ITS PROTEST WAS RECEIVED AND MODERN WAS INFORMED ON DECEMBER 9. STANDARDS APPLICABLE TO THE TIMELINESS OF PROTESTS ARE PROVIDED IN SECTION 20.2(A) OF THIS OFFICE'S INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY ***.".

B-182420(2), JAN 16, 1975

WHERE PROTESTER MADE KNOWN TO AGENCY ITS OPPOSITION TO AWARD OF CONTRACT TO COMPETITOR, AND AGENCY REJECTED THIS POSITION BY LETTER OF NOVEMBER 1, 1974, ANY SUBSEQUENT PROTEST TO GAO ON SAME GROUNDS WAS REQUIRED TO BE FILED WITHIN 5 WORKING DAYS FROM NOVEMBER 1, AND PROTEST FILED ON DECEMBER 12 IS UNTIMELY. TIME TO FILE PROTEST AT GAO NOT TOLLED BY EITHER PROTESTER'S FAILURE TO DESIGNATE INITIAL OPPOSITION AT AGENCY LEVEL AS "PROTEST" OR ITS SUBSEQUENT FORMAL PROTEST TO AGENCY DATED NOVEMBER 4, 1974.

MODERN MOVING AND STORAGE:

MODERN MOVING AND STORAGE (MODERN) FILED A PROTEST WITH THIS OFFICE ON DECEMBER 12, 1974, AGAINST ANY AWARD TO BRADY MOVING AND STORAGE COMPANY, INCORPORATED, UNDER INVITATION FOR BIDS (IFB) NO. F25600-75-B 0015, ISSUED BY OFFUTT AIR FORCE BASE, NEBRASKA, FOR MOVING, TRANSFER, AND STORAGE SERVICES. AS THE BASIS FOR ITS PROTEST, MODERN CONTENDS THAT BRADY DOES NOT HAVE THE PROPER AUTHORITY FROM THE INTERSTATE COMMERCE COMMISSION (ICC) TO PERFORM THE SERVICES REQUIRED BY THE AIR FORCE.

PRIOR TO NOVEMBER 1, 1974, MODERN, THROUGH ITS COUNSEL, BROUGHT TO THE ATTENTION OF THE AIR FORCE THE VIEW OF MODERN THAT BRADY DID NOT POSSESS THE NECESSARY ICC OPERATING AUTHORITY TO PERFORM THIS CONTRACT. THE AIR FORCE WAS ALSO PROVIDED WITH A COPY OF AN ICC ORDER, DATED NOVEMBER 30, 1972, REGARDING AN INVESTIGATION OF CERTAIN OF BRADY'S OPERATIONS AND PRACTICES. AFTER CONSIDERATION OF MODERN'S CONTENTION CONCERNING BRADY'S ELIGIBILITY FOR AWARD, THE AIR FORCE NOTIFIED MODERN BY LETTER OF NOVEMBER 1, 1974, THAT THERE WAS NO BASIS ON WHICH TO DISALLOW A CONTRACT TO BRADY. BY LETTER OF NOVEMBER 4, 1974, MODERN INFORMED THE AIR FORCE THAT IT PROTESTED ANY AWARD TO BRADY ON GROUNDS RELATING TO BRADY'S AUTHORITY TO RENDER THE SERVICE IN QUESTION. WHEN NO FORMAL RESPONSE TO ITS PROTEST WAS RECEIVED AND MODERN WAS INFORMED ON DECEMBER 9, 1974, THAT AN AWARD HAD BEEN MADE TO BRADY, MODERN FILED THIS PROTEST WITH OUR OFFICE.

STANDARDS APPLICABLE TO THE TIMELINESS OF PROTESTS ARE PROVIDED IN SECTION 20.2(A) OF THIS OFFICE'S INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 C.F.R. SEC. 20.2(A) (1974)), IN PERTINENT PART, AS FOLLOWS:

"(A) *** IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY ***."

IN THIS INSTANCE, MODERN'S INITIAL COMMUNICATION TO THE AIR FORCE REGARDING BRADY'S ELIGIBILITY WAS A NOTIFICATION OF ITS GROUNDS OF PROTEST TO ANY AWARD TO BRADY, AND THE AIR FORCE'S NOVEMBER 1 LETTER ANSWERING THAT COMMUNICATION WAS A REJECTION OF MODERN'S POSITION. WITHIN THIS PROCESS, THE AIR FORCE HAD THE OPPORTUNITY TO CONSIDER, AND ULTIMATELY REJECT, MODERN'S VIEWPOINT. ONCE MODERN WAS AWARE THAT ITS POSITION WAS REJECTED BY THE AIR FORCE, IT WAS ON NOTICE OF ACTION WHICH WAS ADVERSE TO ITS GROUNDS OF PROTEST. THUS, IF MODERN WISHED TO FURTHER PROTEST THE MATTER TO GAO, IT WAS OBLIGATED TO FILE THAT PROTEST WITHIN 5 WORKING DAYS OF RECEIPT OF THE AIR FORCE'S NOVEMBER 1 LETTER, AS THAT LETTER CONSTITUTED INITIAL ADVERSE AGENCY ACTION AGAINST MODERN'S POSITION. SEE, E.G., MATTER OF AUTOMATED PROCESSES, INCORPORATED, B-181262, SEPTEMBER 4, 1974; 52 COMP. GEN. 20 (1972). THE TIME TO PROPERLY FILE THE PROTEST AT THIS OFFICE WAS NOT TOLLED BY EITHER MODERN'S FAILURE TO DESIGNATE ITS INITIAL COMMUNICATION AS A "PROTEST" OR ITS SUBSEQUENT PROTEST TO THE AIR FORCE DATED NOVEMBER 4, 1974.

THEREFORE, MODERN'S SUBSEQUENT PROTEST TO THIS OFFICE, DATED DECEMBER 12, 1974, ASSERTING THE SAME GROUNDS OF PROTEST AS INITIALLY PRESENTED TO THE AIR FORCE, IS UNTIMELY AS NOT FILED WITHIN 5 WORKING DAYS OF THE ADVERSE AGENCY ACTION, AND ACCORDINGLY WE WILL NOT CONSIDER IT ON THE MERITS. MATTER OF HYPER-AIR ENGINEERING COMPANY, B-180421, FEBRUARY 5, 1974.