B-184563, OCT 31, 1975

B-184563, OCT 31, 1975

WHERE PROTESTER ALLEGES IMPROPRIETY IN SOLICITATION AND SPECIFICALLY REQUESTS DELAY IN BID OPENING, OPENING OF BIDS AS SCHEDULED CONSTITUTES INITIAL ADVERSE AGENCY ACTION WITHIN MEANING OF GAO BID PROTEST PROCEDURES. SUBSEQUENT PROTEST TO GAO FILED MORE THAN 10 WORKING DAYS AFTER BID OPENING IS THEREFORE UNTIMELY AND WILL NOT BE CONSIDERED ON THE MERITS.

WARD & PAUL, INC.:

WARD & PAUL, INC., PROTESTS THE AWARD TO TECHNICAL REPORTING COMPANY, INC., OF A CONTRACT FOR STENOGRAPHIC AND REPORTING SERVICES NEEDED BY THE DEPARTMENT OF AGRICULTURE DURING FISCAL YEAR 1976. INVITATION FOR BIDS (IFB) 00-75-B-44 WAS ISSUED ON JUNE 10, 1975 FOR THE PROCUREMENT OF THESE SERVICES. OPENING OF BIDS WAS SCHEDULED FOR JUNE 26, 1975, AT 1:00 P.M. LOCAL TIME.

ONE HOUR PRIOR TO BID OPENING, WARD & PAUL NOTIFIED THE PROCURING AGENCY BY TELEPHONE THAT IT INTENDED TO PROTEST THE SPECIFICATIONS. IN A LETTER RECEIVED BY THE AGENCY 25 MINUTES PRIOR TO BID OPENING, THE PROTESTER CONCLUDED THAT, "TO SPECIFICALLY PROHIBIT THE MULTI-CHANNEL ELECTRONIC MEANS OF REPORTING DISCRIMINATES AGAINST A PROVEN AND TRIED SYSTEM USED IN VARIOUS FEDERAL AND GOVERNMENT AGENCIES AND COURTS." PROTESTER REQUESTED THAT BIDS NOT BE OPENED UNTIL THE PROTEST BE RESOLVED AND DID NOT SUBMIT A BID, BUT WAS PERSONALLY REPRESENTED AT THE SUBSEQUENT BID OPENING. JULY 18, 1975, THIS OFFICE RECEIVED WARD & PAUL'S PROTEST AGAINST THE AWARD TO TECHNICAL REPORTING.

THE TIMELINESS OF THIS PROTEST IS THE INITIAL ISSUE PRESENTED. OUR BID PROTEST PROCEDURES PROVIDE THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING SHALL BE FILED "PRIOR" TO BID OPENING. 4 C.F.R. SEC. 20.2(B)(1). IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THIS OFFICE FILED WITHIN 10 WORKING DAYS OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF "INITIAL ADVERSE AGENCY ACTION" WILL BE CONSIDERED, PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS TIMELY. C.F.R. SEC. 20.2(A). "ADVERSE AGENCY ACTION" IS DEFINED TO INCLUDE ANY ACTION OR INACTION ON THE PART OF A CONTRACTING AGENCY WHICH IS PREJUDICIAL TO THE POSITION TAKEN IN A PROTEST FILED WITH AN AGENCY. C.F.R. SEC. 20.0(B).

THE PROCURING AGENCY NOTES THAT ALTHOUGH WARD & PAUL HAD RECEIVED THE IFB APPROXIMATELY 10 DAYS IN ADVANCE OF BID OPENING, THAT FIRM DID NOT FILE ITS WRITTEN PROTEST UNTIL 25 MINUTES BEFORE BIDS WERE SCHEDULED TO BE OPENED. THE AGENCY'S POSITION IS THAT THE PROTESTER'S DILATORY ACTION DEPRIVED IT OF AN OPPORTUNITY TO REEXAMINE THE SPECIFICATION FOR THIS END- OF-FISCAL-YEAR PROCUREMENT OF CONTINUOUSLY-NEEDED SERVICES. THEREFORE, THE AGENCY CONTENDS THAT THE PROTEST TO IT WAS UNTIMELY EVEN THOUGH IT WAS LITERALLY FILED PRIOR TO BID OPENING. WE HAVE CONCLUDED THAT THIS ISSUE NEED NOT BE DECIDED BECAUSE, EVEN IF THE PROTEST TO THE AGRICULTURE DEPARTMENT WERE TIMELY, THE SUBSEQUENT PROTEST TO THIS OFFICE WAS NOT.

AS INDICATED ABOVE, IF A PROTEST IS INITIALLY FILED WITH AN AGENCY, ANY SUBSEQUENT PROTEST TO GAO MUST BE FILED WITHIN 10 DAYS OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF INITIAL ADVERSE AGENCY ACTION. WE HAVE STATED THAT SUCH ACTION MAY CONSIST OF THE OPENING OF BIDS. SQUARE DEAL TRUCKING CO., INC., B-182436, FEBRUARY 19, 1975, 75-1 CPD 103 AT 2. THIS IS CERTAINLY TRUE WHERE, AS HERE, THE PROTESTER ALLEGES AN IMPROPRIETY IN THE SOLICITATION AND SPECIFICALLY REQUESTS A DELAY IN THE OPENING OF BIDS. HERE BIDS WERE OPENED WITHIN ONE HALF HOUR AFTER RECEIPT OF THE PROTEST AND IN THE PRESENCE OF PROTESTER'S REPRESENTATIVE. THUS, WARD & PAUL HAD UNTIL JULY 11, 1975, TO FILE ITS PROTEST HERE. BECAUSE THAT PROTEST WAS NOT FILED UNTIL JULY 18, 1975, THE PROTEST IS NOT TIMELY, AND SHALL NOT BE CONSIDERED ON ITS MERITS.